DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.09 | 255 Book Review Syahrul Fauzul Kabir Center for Diversity and Peace Studies/Universitas Padjadjaran Email: sahrul.fauzul@gmail.com Title : A Realistic Theory of Law Author : Brian Z. Tamanaha Publisher : Cambridge University Press, 2017 Review Despite the law has been developing through the span of the history of human civilization, law has been formulated by legal thinkers, theologians, philosophers; constructed with various pretexts and objectives: for legal certainty, utility, justice and order; used to regulate social life in various forms and dimensions: customary law, religious law, state law, international law, the formulation of legal theory, to date, is still an academic debate.
It is Brian Z. Tamanaha, a professor of law from America, who also entered the theoretical debate's arena through his academic works.
In contemporary legal discourse, Tamanaha is quite popular among academics and legal activists.
Tamanaha is known globally due to his famous works, such as "A General Jurisprudence of Law and Society (2001)", which received Herbert Jacob Bookrize awards, and "On the Rule of Law: History, Politics and Theory (2004)", which have been translated into 6 languages.
His position as an important legal thinker in the 21st century gained his legitimacy in 2013.
Through a poll, which involved 300 deans and professors from various universities in America, Tamanaha was regarded as the most influential legal educator.
Tamanaha is often cited by many legal thinkers in Indonesia, among others, by Satjipto Rahardjo, especially regarding Tamanaha's concept known as the mirror thesis.
Through this notion, Tamanaha argues that law is only a reflection of certain ideas, values, cultures and traditions of society.
Because the law is always particular, referring to certain societies in particular temporal circumstances, then, legal transplantation from and/or to other communities is not realistic if not impossible.
His thinking, inevitably influenced by the Anglo Saxon legal tradition that grows and practiced in his homeland America, which tends to be more dynamic and reliant on jurisprudence.
On April 24, 2017, Cambridge University Press published Tamanaha's latest book entitled "A Realistic Theory of Law".
Examining the composition of the book's contents: contained a debate regarding law's definition, the schools of law, genealogy of law, while questioning the Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 256 | Kabir – (Book Review) A Realistic Theory of Law truth and the universality of law, presumably implying that Tamanaha was constructing his legal theory as reflected in the book's title ("Theory of Law").
Based on this description, the author is interested in exploring Tamanaha's legal thinking; outlining his opinions on the essence of law, through his newest book which numbered 202 pages.
The first part of the book discusses three most prominent theories or legal philosophies (Jurisprudence) in various legal discourses: The School of analytical law (legal positivism), philosophical/ethical (natural law) and historical (historical schools).
Throughout history, from medieval times to renaissance, the conflict between these schools of jurisprudence was reviewed through its exponents’ thinkers.
Then, Tamanaha entered the arena using the sociolegal framework's, to overcome the gap between these schools of law.
In the second chapter, Tamanaha reviews the classical debate on the law, namely questioning the legal definition in a sub-title "what is law?".
The three branches of jurisprudence, as mentioned previously, are joined to discuss the problematic definition of law.
Then, Tamanaha not only criticizes the proposed law definitions, elucidating the shortcomings and failures of established legal definitions, however, also tries to reconstruct it.
Chapter three contains a description of the claim of law's universality.
Here, Tamanaha critically discusses the basic assumptions of law and the implicit legal features from the mainstream law's perspective.
Differentiation between laws as a social construction, which varies in each society due to the variety of cultures, environments, etc.
(a posteriori), is faced diametrically with the identification of idealized laws, which can be applied universally (a priori).
The discussion raises a debate on the universality of the nature of law (universal truth); identification of legal characteristics, and the possibility of its implementation in a universal way.
Tamanaha, in the fourth part, uses the genealogical approach of law; tracing the relationship between law and non-law elements, such as economic, social, political, environmental, technological, cultural, in a diverse historical context.
On the one hand, Tamanaha is concerned with historical developments related to legal structures; how the law is formed and what elements have influenced law, by citing historians, sociologists, anthropologists viewpoint, etc.
On the other hand, Tamanaha scrutinizes analytical law's arguments, especially the positivist school; suing the basic assumptions of state law which has been hegemonic as the standard, in determining entity referred to as law.
The fifth part of the book is entitled "Law in the Age of Organizations".
Tamanaha begins this chapter by claiming that legal theories have failed in calculating fundamental changes in law and society, which are marked by the rise of formal legal instruments.
Tamanaha claims that his legal theory is more suited to modernity.
Tamanaha distinguishes between law as the core regulation for social interaction and the use of law by the state.
Furthermore, Tamanaha explained how the interaction between the two categories affected the creation of legal structures in the community.
Before arriving at conclusions, Tamanaha ends the discussion in this book through the last part entitled "What is International Law".
Tamanaha claims that international legal theories have a problem due to the confusions of concepts and ideological views constructed in international legal discourse.
Conceptual barriers triggered by Jeremy Bentham's theoretical paradigm in which he created a gap between domestic law and international law as separate entities.
While ideological barriers stem from normative tendencies or commitments among Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Kabir – (Book Review) A Realistic Theory of Law | 257 international law experts in establishing a universal legal system; thus creating a false vision related to the locus of international law and its relation with national law.
By outlining this confusion, Tamanaha believes he can provide a more comprehensive understanding of international law.
94 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.07 Legal Protection for Investee Company in Venture Capital Agreement in Indonesia Sihabudina aFaculty of Law, Brawijaya University Email : sihabudin.fhub@gmail.com Submitted : 2018-11-18 | Accepted : 2019-02-08 Abstract: Business and entrepreneurship are one of the fundamental and important factors in the economy of a nation.
In Indonesia lending is being intensified to small and medium-sized companies that are unable to borrow capital from banks through the establishment of venture capital by the government.
The existence and role of financial institutions in the form of venture capital in Indonesia is important to study, because it is a new institution that is starting to develop, which certainly has an influence on the development of the business world and legal institutions and institutions.
The research method used is empirical juridical, which is qualitative by means of descriptive analysis.
The results of the study are that although venture capital has not been based on clear legal aspects, in practice, venture capital activities are complemented by an agreement.
Venture Capitalist has a stronger position on the investee company, while freedom of contract can only be applied well when both parties have the same position.
However, venture capital tends to protect interest (capital) with special provisions, including its responsibilities.
Therefore there is a need for a model and further regulation of the contents of the "standard venture capital agreement", especially the financing mechanism as well as its implementation instructions, so as to provide clearer, more complete and stronger implementation guidelines.
A financing agreement made between a venture capital company and its partner company is based on a standard contract that requires supervision and protection to maintain balance.
Measures of protection and supervision are through the basis of legislation, control carried out by the government, control carried out by judges (courts) and legal consultants and notaries.
Keywords: economy; venture capital; legal protection; investee company; agreement; partnership.
I.
INTRODUCTION Entrepreneurship and business world consist of various levels, namely small, medium and large companies.
The small business sector has an important role to play in addressing development challenges, namely employment expansion, more equitable income generation, and increase mailto:sihabudin.fhub@gmail.com Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia | 95 export.
1 Therefore, there is a need to maintain a more serious commitment and greater effort to improve small business sector, because efforts to develop small business sector is an integral part of the overall process of economic development of Indonesia as a country.
One of the obstacles faced by small and medium entrepreneurs is funding/capital as a means to pioneer, maintain, and run their business and develop it.
2 Therefore, there is an alternative to overcome the difficulties faced by entrepreneurs to get the funds.
The alternative to be discussed in this paper is the implementation of venture capital for small and medium enterprises, which has the potential to develop well.
The existence and role of financing institutions in the form of venture capital in Indonesia is important to be studied, because it is a new institution that began to develop, which certainly has an influence on the development of business, the companies, and the legal institutions.
Unfortunately this institution is not accompanied by the establishment of a legal order governing the operation of legal relationships between venture capital firms and financed companies.
Based on this background, it will be examined whether the legal protection of the business partner in the cooperation agreement is guaranteed so that the national economy is truly lifted and a sense of justice is created and whether the standard contract model implemented as a venture capital financing agreement meets justice for both 1 Badrul Zaman dan Mariam D., Hukum Jaminan dan Jaminan Kredit Perbankan di Indonesia (Jakarta, Raja Grafindo Persada, 2007) 43.
2 Kenneth J.
& Narongchai A., Small and Medium Business Improvement in the Asia.
(Aspek-aspek Finansial Usaha Kecil dan Menengah: Studi Kasus Asean).
penerjemah Yadrifil, (Jakarta: LP3ES, 1992) 8. parties and does not cause any other legal inequality?
II.
LEGAL MATERIALS AND METHODS This research uses qualitative juridical empirical method with descriptive analysis method through literature and field.3 This research is also a legal literature research.
The study was carried out mainly on legal materials in the form of laws and agreements, literature books, scientific papers written by experts, research results and reports, magazines, newspapers and other writings.
Furthermore, field research was conducted in the form of interviews and observations to determine the implementation of the activities of venture capital financing institutions in the community as well as their role, particularly the legal relationship between venture capitalists and their partner companies (investee company).
As a starting point will be used literature study in the field of law and in the economic field concerning the emergence and development of venture capital in Indonesia and abroad, so that can be drawn conclusions about what things are still needed for the development of venture capital in Indonesia.
Further Soerjono (1988) 4 states that "this study is a study to look for regulatory provisions" governing venture capital issues.
This is relevant to Bungin's in Laely (2007) 5 statement that "research can be supported by 3 Surjono Sukanto, Penelitian Hukum Normatif, (Jakarta, Adika Cipta, 1988) 40.
4 Zaeni Asyhadie, Hukum Bisnis Prinsip dan Pelaksanaannya di Indonesia, (Jakarta, PT Raja Grafindo Persada.
2012) 42.
5 Bungin in Laely, Dimensi Metodologis: Dalam Penelitian Sosial, (Surabaya, Usaha Nasional, 2007) 348.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 96 | Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia looking at the circumstances in practice and analyzing them".
The results of this study are certainly expected to determine the better policy to formulate its development rules.
III.
RESULT AND DISCUSSION Venture Capital and the Basic Legal Aspects The word venture is generally related to risk management which is often referred to as calculated risk.
Venture businesses have a very broad scope, which includes formal business ripples or that have not been formalized in accordance with the scope of local law or that have not been reached by local formal law.
6 The venture capital financing model does not have legal instruments that can minimize risk, even to bear the risk of business failure.
Even if the business partner company at a certain time earns a profit, then it is not certain that the profit / profit can directly become dividends which are directly shared with the shareholders.
By conception, there are 4 (four) possible packages of venture capital, which are included in the business partner of the company, namely: 7 1) Capital participation only.
2) Equity participation and seat allocation in the management structure or take part in the management.
3) Equity participation by providing management consulting support.
4) Equity participation accompanied by technology.
6 Thoby Mutis, Fenomena dan Riak Ventura, Usahawan No.9 Th.XXIII September 1994.
7 The Asian Venture Capital Journal, The Guide to Venture Capital in Asia, Hong Kong: The AVCJ., 1990, p. 18.
The venture capital financing system by means of equity participation is a government policy that has certain objectives, namely first, with the existence of venture capital so that there is an opportunity to obtain capital that is evenly distributed among companies in Indonesia.
Secondly, with this capital participation system, the government expects that business partner companies that are not small and mediumsized companies will have the opportunity to obtain capital that is not burdensome, in the form of interest and the provision of collaterals as applied to lending in banking institutions.8 The legal relationship of capital participation is a cooperative or partnership relationship, which includes "cooperative relations between small businesses and medium-sized businesses with large businesses with regard to the principle of mutual need, mutual reinforcement and mutual benefit".
9 The partnership is carried out accompanied by coaching and development in one or more of the fields of production and processing, marketing, capital, human resources, and technology.
In conducting partnership relations both parties have equal legal standing.
10 Some Problems with Legal Relations in Venture Capital in Indonesia Some venture capital companies that have financed a business partner company, which consists of small and medium-sized companies, state that small companies generally face capital, marketing, business relations, less skilled problems in the 8 Rachmat, Budi, Modal Ventura: Cara Mudah Meningkatkan Usaha Mikro, Kecil dan Menengah, (Bogor, Ghalia Indonesia 2005) 348.
9 Article 1 paragraph (8) Draft Law on Small Business.
10 Article 26 paragraph (4) of Law No.
9 of 1995 concerning Small Business.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia | 97 technical and administrative fields.
"Most small companies still use traditional technology, so they are often unable to maintain and guarantee the quality of production"11, which results in the difficulty of marketing production and losing competition in the market, so that the development of the business is hampered.
This is one of the obstacles to developing a business partner company, which generally consists of small and medium enterprises.
"The obstacle in creating cooperation between venture capital companies and business partner companies is the form of small companies in Indonesia, most of them are family businesses, so that supervision in the corporate environment is less objective than unprofessional.
"Small companies in Indonesia often have no strict limits between business interests and family interests.
Sometimes the actions of family members are less business like and do not understand the scope of their business.
Most small business owners are not willing or unusual to delegate broad rights and obligations to non-family members" The legal relationship constraints of working on a venture capital system can also be caused by both parties having different fundamental interests.
Investors, namely Venture Capital, have an interest so that their capital participation is secure, immediately get results and try to get capital gains immediately when divesting or freeing themselves from financing at a business partner company by selling their shares.
12 While the business partner company or business partner as a capital user generally has its own interests and will object if the space for movement is limited as a result of the intervention of venture capital companies to manage their company and profits are 11 Tulus Tambunan,Usaha Mikro Kecil dan Menengah di Indonesia: Isu-isu Penting.
(Jakarta, LP3ES, 2012) 40. distributed because the funds can be used as cheap funds to enlarge investment.
The objection from the business partner or the investee company is reasonable because it does not understand the emergence of the concept of financing a type of venture capital in the form of capital participation, because venture capital financing is considered as an injection of fresh funds, which do have a role in the development of the company.
so if profits are immediately divided, then it is felt to reduce the funds whose hopes can be used to develop their business activities, even though the business partner company also realizes that the funds or capital are not the only determinant of the success of the company.
So the problem is how to bring together different interests the fundamental, so that the legal relationship of cooperation between venture capitalists, namely venture capital companies and capital users, namely business partner companies can be carried out well and mutually beneficial.
Implementation of Legal Partnership of Funding The Implementation of legal partnership of venture capital funding (especially the one performed by Bahana Pembinaan Usaha Indonesia) has two models, namely the form of cooperation by buying shares (equity) to the partner company, and providing loans in the form of credit.
The participation of venture capital company is done by injecting equity fund (share) to its business partner, and as a minority shareholder with a maximum of 49%.
If it turns out that the 49% funding from the venture capital is not sufficient, then the venture capital companies usually lend to 12 Rachmat, Budi, Modal Ventura: Cara Mudah Meningkatkan Usaha Mikro, Kecil dan Menengah, (Bogor, Ghalia Indonesia 2005) 78.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 98 | Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia their partner companies under a separate agreement, in the form of a loan.
Business partner company or business cooperative is not necessarily must be a limited liability company, even Presidential Decree of the Republic of Indonesia no.
9 in 2009 and Decree of the Minister of Finance No.
18 in 2012 do not specify the form of business entity of the business partner company.
The venture capital company puts its funds into its business partner company based on the belief that the entrepreneur of the prospective partner will succeed in developing his business.
Therefore, the venture capitalist must know more closely who the entrepreneur (investee company), his personality, experience, talent and the important spirit of his company's entrepreneurship.13 Legal Partnership of Funding According to Formal Agreement: The occurrence of an agreement to be poured into a financing agreement between a Venture Capital Company (VCC) and its Business Partner Company (BPC) was also started with a concept of agreement from the venture capitalist or investor company, commonly referred to as the Standard Contract.
Originally, the standard contract was made in respect of an activity requiring the existence of a mass and collective agreement.
"Vera Bolger named the standard contract as a bid which character is‘ take it or leave it’ contract.
14 If the debtor is aware of any conditions, then the debtor may be just accepting what it is or does not accept it at all, whereas the possibility of making a change is completely absent.
Those conditions, that 13 H. Z.
Asikin., Hukum Dagang, (Jakarta, Raja Grafindo Persada.
2013) 51.
14 B.
A. Garner, Black’s Law Dictionary.
8th Edition.
(West Publishing CO.St.
Paul, Minn, 2004) 212. have been partially determined are often called as exoneration/exemption clause.
These exoneration clauses can appear in various forms.
Such clauses may take the form of a complete release from the responsibility that should be borne by its party in the event of a breach of a promise (default).
The exoneration clauses may also constitute restrictions on the amount of damages that can be claimed.
The clause may also constitute a time limit for the disadvantaged person to be able to file a lawsuit or to seek redress.
In this last field, the time limit is often shorter than the time limit set by law.
In the present and in the future, as a result of globalization may be a standard contract with the form of these forms will broadly dominate the business world in Indonesia.
Standard contract and exemption/exoneration clauses in Indonesia can be distinguished in 3 (three) main types, namely15: First, a unilateral standard contract, that is a contract which contents are determined by the stronger party of positions in the agreement.
The one referred as the strong party is the creditor who typically has a stronger economic position than the debtor.
Both parties are generally bound in an organization, for example on collective labor contract.
Second, the standard contract established by the government that is a standard contract that has the object of land rights.
In the field of land (agrarian) there are forms of agreement which is regulated by the Minister of Domestic Affairs Decree No.
104 / Dja / 1977, which among them is in the form of sale and purchase deed model 1156727, 15 Zaeni Asyhadie, Hukum Bisnis Prinsip dan Pelaksanaannya di Indonesia, (Jakarta, PT Raja Grafindo Persada.
2012) 42.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia | 99 mortgages deed model 1045055, and the others.
Third, the standard contract specified in the notary or advocate environment.
In their environment there are agreements whose concept has since been provided to meet the demands of members of the community seeking the assistance of a notary or an advocate concerned.
According to the Dutch literature, this type of agreement is called the Contract Model.
Legal Protection for Business Partner Company Conceptually, venture capital is a high risk capital, because the financing is not accompanied by the guarantee of goods (collateral) 16, so there is no guarantee for the interests and security to the capital of venture capital companies.
Even the basic concept of financing system is partnership cooperation, where both parties have equal position.
Financing by a venture capital company to a partnering company is made by a cooperative or partnership agreement, pursuant to Article 8 of Law Number 20 in 2008, 17 this partnership relationship of both parties, should have an equal legal standing.
Article 8 of this law stipulates that the partnership relationship is set forth in a written agreement that at least regulates the form and scope of the partnership business, the rights and obligations of each party, the form of coaching and development, as well as the duration and settlement of disputes.
In the implementation of partnership relationship between small-scaled business and medium-sized enterprises with a large business is prohibited to own and / or control the partner company’s small business.
16 Regina Brehny & Butler Brendan, A Guide to Ventura Capital, 8th Edition, (Irish Venture Capital Association (IVCA), 2015) 311.
The Law no.
20 in 2008 on Small Business can be used as a foundation for legal partnership concerning venture capital.
Based on the guarantees regulated by the law on small business, there is actually some legal protection for small business, and for the financing company there is no need to worry about the funds that are attached to the small company, because there is an insurance institution.
However, the law on small business, which has given legal certainty, still seems to be underestimating the protection of investors, so it seems that in making the agreement, the investors are still trying to protect their interests through the terms set out in the agreements they made, so that the content of the agreement appears to be an unequal agreement of rights and obligations.
The principal issue of Standard Contract is an exoneration/exemption clause, which often incriminates the debtor.
Indonesia does not yet have legislation or jurisprudence, which specifically regulates clauses in standard contract.
Law No.
8 in 1999 on Consumer Protection has one article, namely article 18 which regulates the provision of standard clause, but the provision is not yet adequate to regulate standard contract in general.
The provisions of standard contract set forth in Law No.
8 in 1999 on Consumer Protection is apparently specifically intended for an agreement made by a company only with the consumers, both consumers of goods and services.
Based on such description, the validity and enforcement of standard contract shall be governed by basic rules as the rules of the game, so that the provisions and clauses of standard contract, either partially or wholly, does not one-sided, so as to maintain a sense 17 Pasal 8(b) Undang-undang No 20 Tahun 2008 about Usaha Mikro, Kecil dan Menengah.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 100 | Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia of justice and / or balance.
The protection that must be provided to prevent arbitrariness of strong parties can be done by lawmakers, the government of the Republic of Indonesia, the Court, and Legal Counsels and notary.
On the establishment of legislation on standard contract and the occurrence of agreements in the making of a treaty, it is necessary to pay attention and consider the principles of existing agreements, which include Considering the Principles of Agreement (Consensus), moral values, principles of appropriateness, and the Freedom of Contracting Principle for Indonesia.
Venture capital financing agreements and business transactions in Indonesia that use a lot of standard contract should encourage all of us to give more attention to the basic rules governing standard contract.
In addition, to obtain equal rights and obligations between the investors and the recipients of capital requires Improvement on Venture Capital Material Law.
Venture Capital Disputes Settlement Funding for equity participation by venture capital sometimes experiences problems in the form of bad capital or a business partner company running away from the responsibility to return capital from a venture capital company.
If the return on capital is the obligation of the business partner company to experience congestion, then the handling can be done with several approaches, namely18 1) With a postponement of return time, without being burdened with additional margin (the term in banking is called interest).
18 Gradan Mack, ‘Fueling the Grouwth of Black Companies’ (1994) 25(4) Journal Black Enterprise, 21 2) Suspension of return times by adding profit margins.
This is done by removing the first agreement and renewing it with a new agreement.
By law, these disputes can be resolved through ordinary courts or arbitration (arbitration) courts.
If there is a broken promise (wanprestatie) in the implementation of venture capital financing with a profit sharing system, then there are several ways to resolve the problem, namely by deliberation and through the court.
If the settlement is carried out by deliberation, it means the venture capital company with the partner company has an open and family meeting to solve the problem together with negotiations.
The steps taken by venture capital companies are: 1) Obtaining past business partner data (post performance) includes finance, marketing, production and management techniques.
2) Analyzing available data both external and internal.
Based on the steps mentioned above, then the capital is entered into the company of the business partner in the following way: 1) Rescue of problem financing for projects that can be managed.
The way to save is done: providing rescheduling, giving additional working capital financing, selling assets that are less useful, requiring professional staff in a business partner company.
2) Rescue of troubled financing for projects that cannot be or are difficult to cure.
How to save: a.
Through the Court.
b. Under-the-sale of assets, meaning the settlement by selling goods not through the court.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia | 101 Specific Legal Principles Required in the Standard Agreement There is a view that states that so that the standard agreements that develop in the community, especially in the business world do not cause negative impacts in the sense that there is no injustice, control is needed from certain parties, including the government, but there is a view that these controls will increase the length bureaucracy in the life of the business world and adding to the burden of costs, so the important thing is actually the enactment and enforcement of legal principles that are specific to the standard contract.
For those who view the need for control, it is stated that standard agreements and exoneration / exemption clauses that have no control or supervision from certain institutions or parties may lead to conflict with the principle of consensualism and the principle of freedom of contract that is responsible, especially when viewed from the principles the principle in the Indonesian national legal system, which at the end of every activity of community interest takes precedence.
In the standard agreement the position of creditors and debtors is not balanced.
The creditor's monopoly position opens a wide opportunity for him to abuse his position, while the practice of standard agreements continues to develop in the lives of the people.
The challenge that must be faced is how to provide protection to debtors, whose positions are relatively weak.
At present, the legal relationship of a venture capital company with its business partner including other legal relationships, which uses a standard agreement does not yet have a limit, except the standard clause in the legal relationship of the company with consumers of goods and services contained in the Law on Consumer Protection (Law Number 8 of 1999).
If there are one-sided agreements as a result of not or lack of operation of the principle of freedom of contract and the occurrence of an unbalanced standard agreement, the government must rectify the situation.
This can be done by: 1) Lawmakers; 2) Government of the Republic of Indonesia; 3) Courts, and 4) Legal consultants and notaries The venture capital financing agreement and business transactions in Indonesia that use many standard agreements, should encourage us all to pay greater attention to the basic rules governing the standard agreement.
In the framework of making standard contract law in Indonesia, you can see and consider the basic rules of the existing standard agreement, both regulations in Indonesia and in other countries, which include: 1) Provisions on the inclusion of standard clauses in article 18 of Act Number 8 of 1999 concerning Consumer Protection; 2) Article 6.5.2. and 6.5.1.3.
The new Civil Code in the Netherlands.
3) Basic rules set by the courts in the United Kingdom concerning the provisions in the Standard Documents that are not signed.
4) Article 2-302 Uniform Commercial Code 1978, in the United States.
5) Agreement principles, to fulfill a sense of justice.
The specific principle of the standard agreement is meant that: if the contents of the agreement are tru.ly unfair, then the standard agreement should be declared null and void, if the weak party feels compelled to accept the agreement, then it can be canceled.
The regulations governing the existence of financial institutions, including Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 102 | Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia venture capital at this time are the Republic of Indonesia's Presidential Decree Number 61 of 1988 concerning Financing Institutions19 and Decree of the Minister of Finance of the Republic of Indonesia Number 1251 / KMK.
013/1988 concerning Provisions and Procedures for Implementing Financing Institutions.
In order for the existence of venture capital to have a stronger and faster foundation in the community and to get support from various parties, it would be better if it is improved in the form of legislation.
IV.
CONCLUSIONS AND SUGGESTIONS It is submitted that since Presidential Decree No.
9 in 2009 and the Decree of the Minister of Finance No.
No.
18/PMK.010/2012 is silent on the rules of venture capital performance, the practice is based on the principle of freedom of contract, which implementation is under a contract (agreement) that submitted to the parties.
The venture capital financing agreement is further implemented with a standard contract model, in which the format has been made in advance by a venture capital company, so often the partner companies only accept what is offered by venture capital companies, while the basic rules governing standard agreements in Indonesia not available.
Such condition lead to the imbalanceness between the parties involved and ofthen considered as injustice.
The partner company, whose position as a weak party, has not obtained legal protection properly.
It follows form the above that supervision and protection is necessary in order to maintain balancing interests and avoid bias.
Such supervision and protection 19 M. Isrok, ‘Modal Ventura, Alternatif Baru untuk Pembiayaan Perusahaan’ (1993) 1(1) Legality Journal Ilmiah Hukum Malang, 11 may come to the forms of basic legislation, appropriate control from the government, and by control conducted by judge (the court) and legal consultants and notaries.
Thus, it is necessary to immediately determine the basic rules of standard contract, which formation is by considering the existing basic rules, namely: The provisions contained in article 18 of Law 8/19999 on Consumer Protection, Article 6.5.2. and 6.5.1.3.
Burgelijke Wetboek in the new Netherlands, the basic rules laid down by the courts in England on the Raw Document Stipulation, and article 2302 Uniform Code 1978 in the United States.
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2012) Brehny, Regina & Brendan, Butler, A Guide to Ventura Capital, 8th Edition (Irish Venture Capital Association (IVCA), 2015) Bungin, B.
& Widjajati, L., Dimensi Metodologis: Dalam Penelitian Sosial (Surabaya, Usaha Nasional, 2007) Garner, B.
A., Black’s Law Dictionary.
8th Edition (West Publishing CO.St.
Paul, Minn, 2004) James, Kenneth & Akrasanee, Narongchai, Small and Medium Business Improvement in the Asia.
(Aspek-aspek Finansial Usaha Kecil dan Menengah: Studi Kasus Asean).
penerjemah Yadrifil (Jakarta: LP3ES, 1992) Rachmat, Budi, Modal Ventura: Cara Mudah Meningkatkan Usaha Mikro, Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Sihabudin Legal Protection for Investee Company in Venture Capital Agreement in Indonesia | 103 Kecil dan Menengah (Bogor, Ghalia Indonesia 2005) Sukanto, Surjono, Penelitian Hukum Normatif (Jakarta, Adika Cipta, 1988) Soekanto, Soejono dan Mamuji, Sri, Penelitian Hukum Normatif Suatu Tinjauan Singkat (Jakarta, Rajawali Pers, 2010) Tambunan, Tulus, Usaha Mikro Kecil dan Menengah di Indonesia: Isu-isu Penting (Jakarta, LP3ES, 2012) Zaman, B., dan Darus, M., Hukum Jaminan dan Jaminan Kredit Perbankan di Indonesia (Jakarta, Raja Grafindo Persada, 2007) Journal Asian Venture Capital Journal, The 1990 Guide to Venture Capital in Asia, Hong Kong: The Asian Venture Capital Journal Limited, 1990.
M. Isrok, ‘Modal Ventura, Alternatif Baru untuk Pembiayaan Perusahaan’ (1993) 1(1) Legality Journal Ilmiah Hukum Malang Mack, Gradan, ‘Fueling the Grouwth of Black Companies’ (1994) 25(4) Journal Black Enterprise Legislations Article 1 paragraph (8) Draft Law on Small Business.
Article 26 paragraph (4) of Law No.
9 of 1995 concerning Small Business.
Act Number 20 Year 2008 concerning Micro, Small and Medium Enterprises.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 1 Volume 2(S) No.
1 (2015) MODERN SLAVERY IN INDONESIA: BETWEEN NORMS AND IMPLEMENTATION Savira Dhanika Hardianti 1 Faculty of Law Brawijaya University Abstract People in the 21st century are still sold like objects, forced to work for little or no wages paid and at the mercy of 'employer'.
Global Slavery Index (GSI) in 2013 showed that an estimated 29.8 million people living in modern-day slavery.
In Indonesia there are 210 970 people living in slavery.
Although Indonesia has some of the laws governing modern slavery are included in the Law of Anti-Trafficking.
This paper tries to find the norms and implementation in practice of modern slavery.
How norms are implemented by the government and what barriers to enforce the law.
Keywords: Forced Labor, Slavery, Human Rights, Human Trafficking I.
INTRODUCTION Slavery is a problem that should be a concern to the international community as a violation of human rights.
Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are carried out.
The international prohibition on slavery is absolute; there are no exceptions (as there are for forced labor).
Slavery is an institution in which the slave master’s exercise of the rights of ownership destroys the human personality the person as a bearer of rights and reduces the slave to chattel, without rights.
Human rights are the basic rights and freedoms that belong to every person in the world.
Based on United Nations Universal Declaration of Human Right 1948 (UDHR), No one shall be held in slavery and the slave trade shall be prohibited in all their forms.
But in reality, some people now in the 21st century are still sold like objects, forced to work for less Money or not paid at all and 1 This writer is a student at faculty of Law, Brawijaya University.
Email address at saviradhanika@ymail.com Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 2 Volume 2(S) No.
1 (2015) at the complete mercy of their 'employers'.
2 Definitions of modern slavery hardly found in any literature.
But is in slavery if they are: 1.
Forced to work through mental or physical threat; 2.
Owned or controlled by an 'employer', usually through mental or physical abuse or the threat of abuse; 3.
Dehumanized, treated as a commodity or bought and sold as 'property'; 4.
Physically constrained or has restrictions placed on his/her freedom of movement.
Global Slavery Index (GSI) in 2013 showed that an estimated 29.8 million people were forced to work and paid less than they should accept or unpaid.
Table 1: 3 Countries with the highest estimate population in Modern Slavery Country Name Rank Estimate of Population in Modern Slavery Lower Range of Estimate Upper Range of Estimate India 1 13,956,010 13,300,000 14,700,000 China 2 2,949,243 2,800,000 3,100,000 Pakistan 3 2,127,132 2,000,000 2,200,000 Nigeria 4 701,032 670,000 740,000 Ethiopia 5 651,110 620,000 680,000 Russia 6 516,217 490,000 540,000 Thailand 7 472,811 450,000 500,000 Democratic Republic of the Congo 8 462,327 440,000 490,000 Myanmar 9 384,037 360,000 400,000 2 What Is Modern Slavery, (6th April 2014) <http://www.antislavery.org/english/slavery_today/what_is_modern_slavery.aspx> 3 Ibid Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 3 Volume 2(S) No.
1 (2015) Bangladesh 10 343,192 330,000 360,000 Tanzania 11 329,503 310,000 350,000 Sudan 12 264,518 250,000 280,000 Nepal 13 258,806 250,000 270,000 Uganda 14 254,541 240,000 270,000 Vietnam 15 248,705 240,000 260,000 Indonesia 16 210,970 200,000 220,000 The table above shows that Indonesia is ranked 16 in modern slavery, with around 210,970 Indonesian people enslaved.
Modern slavery practices in Indonesia can be seen in some companies where workers are treated like a slave, not like the other workers.
The forms of slavery are various.
Some of the forms of slavery are Bonded Labor, Forced Labor, Descent-based slavery, Trafficking, Child slavery, early and Forced Marriage.
This paper would be focused on Forced Labor.
Forced labor is any work or services which people are forced to do against their will under the threat of some form punishment.
Almost all slavery practices, including trafficking in people and bonded labor, contain some element of forced labor.
The worst case is always remembered as an act of Slavery in Indonesia is the case in Pot Plant, which is located in Tangerang, West Java, Indonesia.
The owner gets 11 years after he was proven guilty of holding employees at his factory captive, including several minors, and make them work without being paid.
They were also not allowed to change their clothes and all their belongings were confiscated by their employer.
However, protecting human rights is one of the Indonesian Government responsibilities.
Being a forced labor means living in a modern slavery.
Therefore, this paper will try to answer: How is forced labor according to Indonesian law?
What is Indonesian Government effort in combating forced labor?
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 4 Volume 2(S) No.
1 (2015) II.
LEGAL MATERIALS AND METHODS A.
Type of Research Type of research that is used by author in researching problems in this research is a norm.
Normative research is a process to identify the rule of law, legal principle, even law doctrines in order to answer the law issue.
B.
Types of Legal materials 1) Primary Legal Materials Primary legal materials are an authoritative legal materials, which means has an authority.
Primary legal materials used are: a.
The Slavery Convention 1926 b. Indonesian constitution 1945 c. Act number 39 year 1999 on Human Rights d. Act Number 13 Year 2003 on Manpower e. Act no 21 year 2007 on Eradication of the Criminal Act of the Trafficking in persons f. Indonesian criminal code 2) Secondary Legal Materials.
Secondary legal materials that are used in this paper is the legal materials that explain the primary legal materials, in the form of literatures or books related to a modern form of slavery.
3) Tertiary Legal Materials.
Tertiary legal materials that are used in this paper is materials which could provide clues or explanations towards primary legal materials, such as dictionaries, Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 5 Volume 2(S) No.
1 (2015) articles, law journals and from the internet.
III.
Result and Discussion Forced labor According to Indonesian Law Indonesia is a larger country with the population more than 200 million people, with 7, 15 million people unemployed.
4 Poverty is almost everywhere and it makes them to accept a wide variety of work, and it could be one of the factors of human trafficking in Indonesia.
We must remember that slavery is a type of human trafficking.
International concern with slavery and its suppression is the theme of many treaties, declarations and conventions of the nineteenth and twentieth centuries.
The first of three modern conventions directly related to the issue is the Slavery Convention of 1926, drawn up by the League of Nations.
5 Based on The Slavery Convention 1926 article 1, Slavery can be described as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
People who forced to work and paid nothing is a kind of modern slavery.
The regulation concerning about modern slavery is not just The Slavery Convention 1926, but also Suppelementary Slavery Convention, UN Trafficking Protocol, Abolition Forced Labor Protocol, and etc.
It means since 1926 the world has agreed that no one shall be in slavery.
Although Indonesia is one of UN members, but some of those conventions have not been ratified by The Indonesian Government.
4 Official report of Central Bureau of Statistic of Manpower Affairs February 2014 No.
38/05/Th.
XVII, 5 May 2014 5 Factsheet No 14, Contemporarry Forms of Slavery (26th June 2014) <http://www.ohchr.org/Documents/Publications/FactSheet14en.pdf> Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 6 Volume 2(S) No.
1 (2015) Table 2: 6 The Conventions Relevant to Modern Slavery INDONESIA RATIFIED THE SLAVERY CONVENTION NO SUPPLEMENTARY SLAVERY CONVENTION NO UNTRAFFICKING PROTOCOL YES ABOLITION FORCED LABOR CONVENTION (ACT NUMBER 19 YEAR 1999) YES WORST FORMS OF CHILD LABOR CONVENTION YES CRC OPTIONAL PROTOCOL ON THE SALE OF CHILDREN YES From the table and explanation above shows that the slavery convention and supplementary slavery convention, which are the “main” conventions concerning about slavery has not been ratified by Indonesia.
But it does not mean that Indonesia has no regulation about slavery practice.
The Indonesian constitution year 1945 Article 28I (1) constitution of Indonesia ensures that: The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.
Indonesian citizens are subjected to modern slavery in various forms.
7 (1) No one shall be held in slavery or servitude 6 The table is compiled from many resources.
7 Walk Free Fondation, 2013.
Global Slavery Index 2013 : Indonesia (6th April 2014) <http://www.globalslaveryindex.org/country/indonesia/> Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 7 Volume 2(S) No.
1 (2015) (2) Slavery, the slave trade and servitude shall be prohibited in all their forms a.
Occupational safety and health protection; b.
Protection against immorality and indecency; “Slavery is the status or condition of a person who is under the ownership of another person.
The slavery-like practice is the act to put someone under another person's power so that the person is not able to resist the job that is unlawfully commanded by another person.
Even that person does not want to do it.” The penal code also gives punishment for the employer who does the slavery-like practices.
Indonesian penal code (Kitab Undang-Undang Hukum Pidana) article 333 (1) stated that: Any person who with deliberate intent and unlawfully deprives someone or keeps someone deprived of his liberty, shall be punished by a maximum imprisonment of eight years.
Those articles in Indonesian national law above shows that Indonesia ensures that no person shall be in enslavement, or in any forms of it.
Indonesia has a faith to protect the human rights.
Global Slavery Index 2013 states that Corruption weakens Indonesia’s response to modern slavery.
8 However, to end the modern slavery practice, especially the forced labor practice, it needs government's attention to monitoring and to solve it.
The Indonesian Government Effort in Combating Forced Labor The preamble of UDHR 1948 that was adopted on 10 December 1948 states that recognition of the inherent dignity and of the equal and inalienable rights of all members of the 8 Walk Free Fondation, op.cit Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 8 Volume 2(S) No.
1 (2015) human family is the foundation of freedom, justice and peace in the world.
9 The concept of human rights is related to the ethics and morals.
10 Protecting human rights is not as easy as it seems.
It does not only need the government, but also the other people to protect human rights, starts from respect to others.
To end the practice of forced labor means giving back the human dignity of the labor force.
They will regain their lost desire and can build a better life.
It will make manifest of human equality.
Then there arose a question, how to put an end to this practice?
Over the past decade the Government of Indonesia has demonstrated a clear commitment to address human trafficking.
It all can be shown when Indonesia adopted Anti-Trafficking Law and also founded “Task Force on Preventing and Handling Human Trafficking”.
This task force functioned to advocacy, socialization, monitoring the protection of human trafficking victims, monitoring law enforcement, reporting and evaluating.
Besides that, The Indonesian government has been maximizing the task of the ministry of law and human rights and national police.
But even though Indonesian government has done so many things, the fact is combating forced labor is not easy.
There are some problems handling human trafficking in Indonesia.
Ledia Hanifa, member of the House of Representative Indonesia on her presentation stated that the sectorial budget bundling, lack of Number of Human Resources, and Insufficient Infrastructure are the main problems in handling human trafficking.
Then again, Indonesia has more than 17.000 islands so that the enforcement of the law will be so challenging because the central government is located in Jakarta.
Although the task force is made in every city in Indonesia, but the coordination between them will be really difficult if the government not monitoring regularly.
9 Malcom N. Shaw QC, Hukum Internasional, Bandung, Nusamedia, 2013, 261 10 Ibid Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 9 Volume 2(S) No.
1 (2015) Then what the government should do is to improve the regulation so that the laborer will be well-protected under the law.
Indonesia needs to amend the Act number 13 year 2003 on manpower and explain about slavery-like practices so that all companies will not make any space to do a modern-day slavery.
Governments should actively enforce the laws to ensure that all slaves, victims of forced labor, debt bondage and trafficking are free, and all slave holders, employer/enforcers and traffickers are prosecuted and required to pay damages to their victims.
Governments that ratify Conventions are obliged to incorporate them into their own laws and to make sure that these laws are applied and respected.
The International conventions were ratified by Indonesia related to the Modern Slavery Practice, but as the writer stated above that the Slavery Convention and Supplementary Slavery convention has not been ratified by the Government.
Indonesia should have to ratify those conventions so that Indonesia can implement it to national laws.
The government also needs to be regulated and monitoring regularly to make sure that the laws are enforced by the corporation.
Indonesian government also should make an agency which concern to report regularly that if there is a violation, especially if there is a practice of forced labor or all-kinds of slavery in Indonesia, Creating a National Action Plan for trafficking in person, Establish Integrated Services for Witnesses and / or Victims of human trafficking in the District / City.
Besides that, the Indonesian government should educate people since the factor of human trafficking caused by low education.
To change and even to end the practice of slavery, what governments should have to give to people is education about what the slavery is, what the slavery-like practices, and in what forms the slavery in modern-day.
When people educated about slavery, they at least will know whether they were treated like a slave or not and be reported to the government whether they are in a slavery condition or not.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 10 Volume 2(S) No.
1 (2015) IV.
CONCLUSION Based on The Slavery Convention 1926 Article 1 (1), Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
Slavery in Indonesia is regulated under the forced labor practice has to end.
The government needs to ratify the slavery convention and the supplementary convention and implement those conventions in Indonesia.
Besides, The Indonesian government should have to amend the regulation which is regulating about forced labor, or modern slavery practices.
Indonesia also needs to educate people about slavery so they can know whether they are in slavery or not.
REFERENCES Ann Jordan, 2011.
SLAVERY, FORCED LABOR, DEBT BONDAGE, AND HUMAN TRAFFICKING: FROM CONCEPTIONAL CONFUSION TO TARGETED SOLUTIONS: USA : American University Washington College of Law Annie Kelly, 2013.
Modern-day Slavery: An Explainer.
http://www.theguardian.com/globaldevelopment/2013/apr/03/modern-day-slavery-explainer Fact Sheet No 14.
Contemporarry Forms of Modern Slavery Hukum Online, Jerat Hukum Bagi Pelaku Perbudakan :http://www.hukumonline.com/klinik/detail/lt5189e819260af/jerat-hukumbagi-pelaku-perbudakan Malcom N. Shaw QC, 2013.
Hukum Internasional.
Bandung : Nusamedia Rain Forest Action Network, 2014.
Conflict Palm Oil in Practice : Exposing KLK’s Role in Rainforest Destruction, Land Grabbing and Child Labor.
The Indonesian Act no 21 year 2007 concerning Eradication of the Criminal Act of the Trafficking in Persons The Unofficial Translated of Act Number 13 Year 2003 concerning Manpower (ILO Jakarta) United Nations Resources for Speakers on Global Issues : Child Labor Convention : *http://www.un.org/en/globalissues/briefingpapers/childlabour/intlconvs.shtml http://www.theguardian.com/global-development/2013/apr/03/modern-day-slavery-explainer http://www.theguardian.com/global-development/2013/apr/03/modern-day-slavery-explainer http://www.hukumonline.com/klinik/detail/lt5189e819260af/jerat-hukum-bagi-pelaku-perbudakan http://www.hukumonline.com/klinik/detail/lt5189e819260af/jerat-hukum-bagi-pelaku-perbudakan http://www.un.org/en/globalissues/briefingpapers/childlabour/intlconvs.shtml Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 11 Volume 2(S) No.
1 (2015) What Is Modern Slavery, *http://www.antislavery.org/english/slavery_today/what_is_modern_slavery.aspx Walk Free Fondation, 2013.
Global Slavery Index 2013 Walk Free Fondation, 2013.
Global Slavery Index 2013 : Indonesia http://www.globalslaveryindex.org/country/indonesia/ http://www.antislavery.org/english/slavery_today/what_is_modern_slavery.aspx
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.04| 43 Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman1 Revisited Md Mustakimur Rahman1 1Department of Law, Notre Dame University Bangladesh.
E-mail : mrahman.ntu@outlook.com Submitted : 2017-10-12 | Accepted : 2018-04-11 Abstract: This research analyses the Bangladesh’ Court Decision on the case of Ataur Rahman vs. Mahibur Rahman with regrad to fundamental rights in times of emergency.
It is argued that the decision of the court in Ataur Rahman vs. Muhibur Rahman is erroneous decision.
This is because while Article 141C of Bangladesh Constitution gives the Presidnet the power to suspend certain fundamental rights, yet Articles 27 to 35 and 41 of the Constitution cannot be suspended.
In Bangladesh’s legal system, fundamental human rights are commonly viewed as a set of legal protections.
Part III of the Constitution of Bangladesh has confirmed these rights for the citizens of Bangladesh.
Some fundamental rights are even universally recognized rights which are contained in the United Nations Universal Declaration of Human Rights (UDHR), the UN International Covenant on Civil and Political Rights (ICCPR), or the UN International Covenant on Economic, Social and Cultural Rights (ICESCR).
Article 4 of the ICCPR deals with the state of emergency and Article 4(2) provides a list of non-derogable rights.
Such as the right to life, the prohibition of torture, slavery etc.
These rights are completely non-derogable in nature and cannot be derogated at all including during a state of emergency.
Furthermore the Apex court of Bangladesh tried to justify that the President can derogate any fundamental right during an emergency.
Such a proposition is contradicting core parts of our Constitution as well as several international instruments.
This research uses normative legal research with statute approach and case approach, especialy analysing Ataur Rahman vs. Muhibur Rahman case.
Keywords: Fundamental Rights,Emergency, Bangladesh, Constuitutional Law, International Law I.
INTRODUCTION The provision of the state of emergency in our constitution2 deals with the situation when there are some imbalances in the 1 14 BLC (AD) 63 (2009) 2 Article 141A(1) of the Constitution of the People's Republic of Bangladesh 1972 states that “If the President is satisfied that a grave emergency exists in which the security or economic life of Bangladesh, or any part thereof, is threatened by war or external aggression or internal disturbance, he may issue a Proclamation of Emergency.” society.
Under certain international human rights treaties, state parties are allowed to derogate from a number of human rights to adjust their obligations for a limited period of mailto:mrahman.ntu@outlook.com Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 44 | Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited time in some exceptional circumstances; i.e.
in the time of state emergency threatening the life of the nation.3 A government can take some exceptional measures; however, their validity is subject to adherence to a number of requirements set by the treaty law.4 Such as qualifications of severity, temporaries, proclamation and notification, legality, proportionality, consistency with other obligations under international law, nondiscrimination, and to finish, nonderogability of certain rights recognized as such in the relevant treaties.
The aim of any derogation is to strike a balance between individual protection and the protection of national interest at the time of grave necessity.5 The concept of “necessity” came to the front in the case of The State[Pakistan] vs. Dosso and Another [1958] PLD SC (PAK.)
533 in which the Chief Justice Muhammad Munir observed that: “If the revolution is victorious in the sense that the persons assuming power under the change can successfully require the inhabitants of the country to conform to the new regime becomes a law creating fact….Thus a victorious revolution or a successful coup d’etat is an internationally-recognised legal method of changing a constitution.” 3 Human Rights Committee, General Comment 29(2001), Article 2 (The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties).
; International Covenant on Civil and Political Rights 1966, Article 4(1) 4 International Covenant on Civil and Political Rights 1966, Article 4(1) 5 “Doctrine of necessity” is a term used to describe the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional.
6 The State[Pakistan] vs. Dosso and Another [1958] PLD SC (PAK.)
533, p 542 (1958); see also: Muhammad Nasrullah Virk, ‘Doctrine of NecessityIt seems like an illegal act was made legal in a way where a military man could walk in.
The Supreme Court of Pakistan also held that “Since Article 5 of the late Constitution (relating to Fundamental Rights) had disappeared from the new legal Order, the Frontier Crimes Regulation 1901 by reason of Act IV of Laws (Continuance in Force) Order 1958 was still in force.”6 Although the Lahore High Court had declared the Frontier Crimes Regulation 1901 unconstitutional, later on the Supreme Court of Pakistan held in favour of the Federal Government.
The decision was based on the Hans Kelsen’s theory of legal positivism.7 According to Kelsen's theory, the key points of the judgment: a. Legalisation of 1958 Martial Law The court held that the imposition of the 1958 Martial law was a kind of peaceful revolution which is not resisted by the common people.
It was also accepted by the general people and they were happy with the changes; therefore, marital law was legal as long as it satisfies the common people.8 Application in PakistanCases of Immense ImportanceA Critical Review’ 2(2), International Journal of Social Science and Education, 83 (2012) 7 Legal positivism is a theory about the nature of law, commonly thought to be characterized by two major tenets: first, that there is no necessary connection between law and morality; and second, that legal validity is determined ultimately by reference to certain basic social facts, e.g., the command of the sovereign (John Austin) the Grundnorm (Hans Kelsen) or the rule of recognition (H. L. A. Hart).
8 George Williams, The Case that Stopped a Coup?
The Rule of Law in Fiji (27th November 2003) s< http://www.victoria.ac.nz/law/centres/nzcpl/publica tions/occasionalhttp://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/publications/OP_Williams.pdf http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/publications/OP_Williams.pdf Brawijaya Law Journal Vol.5 No 1 2018 Culture and Technological Influence in Regulation Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited | 45 b.
Recognition of Laws (continuance in force) order The court also held that the Laws (Continuance in Force) Order 1958 was the new legal Order and therefore, the validity of laws and the correctness in the judicial decisions would be determined according to it.9 During state emergency, the derogation of human rights must be proportionated and the requirement of it constitutes one of the substantive limits to the emergency powers.
As Hartman observes that, ”Requiring specific scrutiny and specific justification of each measure taken in response to an emergency, rather than an abstract assessment of the overall situation.”10 This research analyses the Bangladesh’ Court Decision on the case of Ataur Rahman vs. Mahibur Rahman with regrad to fundamental rights in times of emergency.
II.
LEGAL MATERIALS AND METHODS It is a normative legal research using primary and secondary legal materials.
While the primary legal materials consist of all the international agreement related to the development of technology both directly and indirectly, secondary ones included the references, including books, journal articles as well as conference papers and other documents having correlation with the issues.
The technique of analysis data used legal interpretation.
papers/publications/OP_Williams.pdf > (accessed 15 September 2016) 9 ibid 10 Joan Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies’ 22 Harvard International Law Journal, 6 (1981) 11 Emilie M. Hafner-Burton, Laurence R. Helfer, and Christopher J. Fariss, ‘Emergency and Escape: Specifically, the international agreements as primary legal materials including Bangladesh Constitutionm, legislation of 1958 Martial Law, United Nations Universal Declaration of Human Rights (UDHR), the UN International Covenant on Civil and Political Rights (ICCPR), or the UN International Covenant on Economic, Social and Cultural Rights (ICESCR).
III.
RESULTS AND DISCUSSIONS Derogation Under International Law: Any state may adopt emergency measure if state faces a threat to its security.
State may also suspend some civil and political liberties.
This idea was discussed by the drafters of the ICCPR, European and American Conventions on Human Rights right after the Second World War.11 However, to make a balance, the drafters included a clause that restricts states to derogate certain rights during emergency.
This is particularly to prevent states from arbitrarily derogating their obligations in respect of human rights during war or emergencies.12 The drafters were concern that the executive and legislature could authorise infringement individual liberties.
Moreover, if the judiciary is not separated then it might be possible to approve the derogation through politicised judiciary.
If this is the case, then judicial review would not be enough to protect human rights in the national level and also it would not be compatible with the international treaty like Explaining Derogations from Human Rights Treaties,’ International Organization of Duke University, 676 (2011); see: https://scholarship.law.duke.edu/cgi/viewcontent.
cgi?referer=https://www.google.co.uk/&httpsredi r=1&article=2947&context=faculty_scholarship 12 ibid, 677 http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/publications/OP_Williams.pdf https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.co.uk/&httpsredir=1&article=2947&context=faculty_scholarship https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.co.uk/&httpsredir=1&article=2947&context=faculty_scholarship https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.co.uk/&httpsredir=1&article=2947&context=faculty_scholarship Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 46 | Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited ICCPR, Convention Against Genocide and Convention Against Torture.13 As a result, it is not a matter of domestic concern rather a concern of the international community.
Therefore, it is to be kept in mind that derogation measures should not be inconsistent with international law.14 We know that some international treaties dealing with the situation of the state of emergency and those treaties have made provisions of derogable and non-derogable rights.
Although the list varies in different treaties, there are some common rights that exist across all the treaties.
These are the right to life, the prohibition of slavery, prohibition of torture or to cruel, inhuman, or degrading treatment or punishment and prohibition of retroactive penal measures.15 Article 4 of the International Covenant on Civil and Political Rights (ICCPR) deals with the state of emergency and Article 4(2)16 provides a list of non-derogable rights.
The rights under Article 4(2) of the ICCPR cannot be derogated during a state of emergency.
During a state of emergency, if any state violates any right incorporated in Article 4(2) of the ICCPR then the state has to explain the cause of action.
In addition, Article 22(2) of the ICCPR states that: “No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic 13 ibid 14 Human Rights Committee, General Comment 29 (2001) (The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties), 2001, Para 16 15 European Convention on Human Rights 1950, Article 15.2; American Convention on Human Rights 1978, Article 27.2 16 International Covenant on Civil and Political Rights 1966, Article 4(2) provides that “No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision”.
society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.” Article 22(2) clearly explained that when a state can derogate rights and when a state cannot.
In addition, derogations can never sanction acts of genocide, torture or crimes against humanity.
17 This was subsequently reaffirmed in the case of Chahal v. the United Kingdom .
In this case, the European Court of Human Rights absolutely prohibits torture or inhuman or degrading treatment or punishment in public emergency or any other circumstances.
18 This rule was again used in the ca se of Saadi v. Italy, where the European Court stated that Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one 17 Human Rights Committee, General Comment 29 (2001), Article 13(c) (The Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights by its State parties); Article 22 of the Convention against Torture states that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” 18 Chahal v. the United Kingdom, judgment of 15 November 1996, Application no.
22414/93, Reports 1996-V, (1996), Para 79.
Brawijaya Law Journal Vol.5 No 1 2018 Culture and Technological Influence in Regulation Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited | 47 of the fundamental values of democratic societies.
19 Non-derogable rights cannot be suspended, but the state can put some restrictions on a few non-derogable rights.
For example, under Article 4(2) of the ICCPR, freedom of religion (article 18 of the ICCPR) is a non-derogable right but it may be subject to limitations in accordance with Article 18(3).
The right to life (Article 6 of the ICCPR) is another example of nonderogable right.
However, taking life could be justified on the basis of circumstances, where it is in the nature of absolute necessity, reasonable, and proportionate.
The above discussion of Articles 4 and 22 of the ICCPR clearly shows that derogation is possible in the state of emergency.
However, Article 4(2) also provides that which rights cannot be derogated at any circumstances.
Derogation Under The Constitution Of Bangladesh: We all know the fact that fundamental rights provide the citizens self-esteem of life, freedom and justice.
But only having these sets of rights in the Constitution are not enough to protect the citizens, a strong judiciary is needed to protect those rights.
The Constitution of Bangladesh has confirmed some fundamental rights for the citizens of Bangladesh which was actually inspired by the Universal Declaration of Human Rights, 1948.
Aiming to ensure equality was one of the main grounds behind incorporating some fundamental rights.
These rights have been incorporated in Part 19 Saadi v. Italy, judgment of 28 February 2008, Application no.
37201/06, 2008, Para 127.
20 In the Constitution of Bangladesh, there are 18 fundamental rights available in Articles 27-44 for the citizens of Bangladesh.
21 M. Ehteshamul Bari, The Unjust Exercise of Emergency Powers in Bangladesh and Their Consequent Impact on the Fundamental Rights: A III of the Bangladesh Constitution.20 All of these 18 rights are civil and political rights.
However, all of them are not absolute in nature.
Here we can notice three different types of rights; such as: absolute rights, qualified rights and rights which enforceability has been practically left to the legislature.
There are 8 absolute rights mentioned in Articles 27-30, Articles 3335 and Article 44.
In addition to these, six qualified rights are available, and they have been incorporated under Articles 36-40 and 43.
Lastly, there are 4 rights whose enforceability left to the legislature; such as Articles 31, 32, 40 and 42.
As mentioned earlier that state may suspend some rights during emergency which is widely recognised around the world as well as in Bangladesh.
Although it is a matter of question that which rights could be suspended during emergency.
In case of Bangladesh, it is very vital to clarify this question as we know that since the inception of Bangladesh, emergencies have been proclaimed on 5 times.21 Part IXA of the Constitution deals with the emergency provisions.22 Under Article 141B, the issuance of the proclamation automatically suspends the operation of the fundamental rights guaranteed under Articles 36-40 and 42.
The difference between Articles 141B and 141C is that while Article 141B suspends the specified fundamental rights, a proclamation under Article 141C does not suspend any fundamental right, but merely suspends enforcement of such fundamental rights.
In Iqbal Hasan Mahmood vs. Critical Appraisal, Mykolas Romeris University, Vol 21, Issue No: 2(2014) P 584 22 Part IX of the Constitution deals about proclamation of emergency(Article 141A), Suspension of provisions of certain articles during emergencies(Article 141B) and Suspension of enforcement of fundamental right during emergencies(Article 141C).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 48 | Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited Bangladesh23, the High Court Division accepted the view of an Amicus Curiae that proclamation under Article 141C does not have the effect of suspending the fundamental rights other than those mentioned in Articles 36 to 40 and 42 and the same proclamation does not empower the government to act contrary to those rights.24 This reference clearly shows that the President is not permitted to derogate all of the fundamental rights enumerated in Part III of the Bangladesh Constitution.
But, surprisingly, in practice, we have seen that all of the 18 fundamental rights had been suspended during the emergency.
For example, in 2007, President Iajuddin Ahmed declared a state of emergency in the country and suspended 18 fundamental rights.25 This was for the first time when Bangladesh suspended all of these 18 rights while in the past, only 12 rights were suspended during all the previous 4 emergency regimes.26 This practice was quite unprecedented in the history of Bangladesh because we know that the state cannot suspend some absolute rights mentioned in the ICCPR.
Although Bangladesh has become a state party of the ICCPR on 6th September 200027, but since then the Constitution of Bangladesh has not been amended and no government has incorporated those seven non-derogable rights contained in the ICCPR into the Constitution of Bangladesh.
As we see that there is no clear Constitutional provision of which rights cannot be suspended, the state can misuse the emergency provision.
23 60 DLR(AD) 880 (2008) 24 MAHMUDUL ISLAM, CONSTITUTION OF BANGLADESH, Mullick Brothers, 429 (3rd Ed 2012) 25.
Carol Christine Fair, On the Issues: Bangladesh.
Washington DC: United States of Institute of Peace, 27 April 2007, p. 1; see: https://www.usip.org/publications/2007/04/issues -bangladesh Therefore, those 7 non-derogable rights should be incorporated in part IXA of the Constitution.
Derogation Under The Case Of Ataur Rahman Vs Muhibur Rahman: Ataur Rahman vs Muhibur Rahman[2009] 14 BLC (AD) is an important case which deserves to be revisited and must be contextually understood as regards the suspension of any fundamental rights conferred by part III of the Constitution during the period of an emergency.
The case is also significant to understand the interpretation of the term “equality before law” as enshrined in Article 27 of the Constitution.
The Appellate Division observed that “all persons are not equal in all respects and that persons similarly situated should be treated alike”.28 Although “equality before law” is a particular law but it cannot be used uniformly to all persons with different groups or categories according to their distinctions.
Therefore, classification is reasonable to provide them special treatments to ensure justice.
Positive discrimination could be justified sometimes where equality does not work all the time, but equity does.
It is a process of giving preferential treatment, especially in employment for the exceptional circumstance.
In the case of Ataur Rahman, the preferential treatment was necessary to justify the outcome.
In this case, one group of teachers asked for an exemption from departmental 26 M. Ehteshamul Bari, supra note 21, p 591 27 International Covenant on Civil and Political Rights, 1966; see: https://treaties.un.org/Pages/ViewDetails.aspx?src =IND&mtdsg_no=IV-4&chapter=4&clang=_en 28 Ataur Rahman v. Muhibur Rahman 14 BLC (AD) 62, 69, para 16 (2009) https://www.usip.org/publications/2007/04/issues-bangladesh https://www.usip.org/publications/2007/04/issues-bangladesh https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-4&chapter=4&clang=_en Brawijaya Law Journal Vol.5 No 1 2018 Culture and Technological Influence in Regulation Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited | 49 examination on the apprehension that they would not be successful in the departmental examination and foundation training.
This group of teachers was appointed on 20-121998 to the Bangladesh Civil Service (General Education) Cadre.
Another group of teachers from various government colleges could not take the departmental examination as well as foundation training as required of them by the Recruitment Rules, 1981 within the period of their probation.
This group of teachers was appointed prior to 12-01-1992 to the Bangladesh Civil Service (General Education) Cadre.
However, it was not their own fault but for the reason that the Government could not make any arrangement for holding such examination and training.
These two several incidents have caused the same fate for two groups of teachers and they were being unduly prejudiced discriminated in the matter of their confirmation in service and promotion to the senior scale.
To remove this injustice and inequality, the President promulgated the impugned Statutory Regulatory Order (SRO) 11-10-2006 to provide an exemption to those teachers who couldn’t take departmental examination and foundation training.
It is to be kept in mind that, it was the time of state emergency while the President promulgated the SRO 2006 dated 11-10-2006.
The High Court Division said that the aforesaid SRO 2006 dated 11-10-2006 was illegal and unconstitutional as it violates the rights guaranteed under Articles 27(Equality before law), 29(Equal Opportunity in public employment) and 31(Right to protection of Law) of the Constitution being arbitrary and discriminatory.
29 Supra note 14, Human Rights Committee, General Comment 29 (2001) (The Human Rights Committee is the body of independent experts The Appellate Division addressed amongst others two important issues in this case, (i) Whether or not the SRO 2006 dated 11-10-2006 was illegal and unconstitutional violating the provisions of Articles 27, 29 and 31 of the Constitution being arbitrary and discriminatory?
(ii) Whether or not the state of emergency in the country should be taken to have barred enforceability of the fundamental rights envisaged in the aforesaid Articles of the Constitution?
And (iii) Whether or not the President has the power to amend or vary the Bangladesh Civil Service Recruitment Rules, 1981 made by him in the exercise of Article 133 of the Constitution?
The apex court observed that, “The President in terms of Article 141C(1) is empowered to suspend the enforcement of any of the fundamental rights conferred by Part III during the period when a proclamation of emergency is in operation.
It is for the President to decide the enforcement of which of the fundamental rights should be suspended during the operation of the proclamation of emergency and this power is not liable to be circumscribed or limited by any other provisions in the Constitution including Article 26”.29 This reading of the provision begs a question whether or not it makes Article 141B of the Constitution superfluous.
It should not be difficult to understand the language of Articles 141B and 141C.
In case of Article 141B, any action out of Articles 36 to 40 and 42 during the continuance of emergency creates no cause of action as those fundamental rights remained suspended that monitors implementation of the International Covenant on Civil and Political Rights by its State parties), 2001, Para 21 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 50 | Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited during that period and the aggrieved person cannot challenge an action in violation of those fundamental rights even after lifting of emergency.
On the other hand, in case of Article 141C, an action in violation of fundamental rights ensured under Articles 27 to 35 and 41 creates a cause of action because these fundamental rights cannot be suspended during emergency.30 Therefore, the aggrieved person can challenge the action after lifting of emergency.31 This provision is clearer in the Article 359(1) of the Indian Constitution, 1950.
It says, “Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of [the rights conferred by Part III (except Articles 20 and 21)] as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for 30 Supra note 12, Joan Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies 22 Harvard International Law Journal, 6 (1981), 430 31 ibid 32 Jus Cogens is a Latin phrase and the general meaning of it is ‘compelling law’.
Porfessor Ian Brownlie explain the meaning of ‘Jus Cogens’ in his famous book titles “Principles of Public International Law”.
‘Jus cogens’ refers to certain fundamental, overriding principles of international law, from which no derogation is ever permitted.
These norms are well accepted by the international community to maintain an international order.
This doctrine was developed under the influence of natural law concepts, which maintain that states cannot be absolutely free in establishing their contractual relationship.
States were bound to respect certain fundamental principles which were deeply connected with the international community[ see: Gennady M. Danilenko, International Jus Cogens: Issues of Law-Making, 2 EUR.
J. INT’L L. 42, 44 (1991), available at http://www.ejil.org/journal/Vol2/No1/art3.html.].
These rules cannot be altered during war as well as in the peace time.
This is why the position of the rules of jus cogens is hierarchically superior the period during which the Proclamation is in force or for such shorter period as may be specified in the order.” It means the President of India can suspend the right to move any court for the enforcement of such rights conferred by Part III [except Article 20(Protection in respect of conviction for offenses) and Article 21(Protection of life and personal liberty)].
From this provision of Indian Constitution, it is clear that right to life (jus cogens)32 is not derogable.
In the case of ADM Jabalpur v. Shivkant Shukla (1976) AIR SC 1207, what the court except for Khanna33, J. failed to realise is that the right to life is not a ‘gift of the Constitution’.34 Article 4 of the ICCPR recognises the right to life and personal liberty to be a non-derogable right even during times of emergency.35 Arbitrary killing in the state emergency creates a cause of action and the state has to explain the compared to other ordinary rules of international law.
33 Justice Khanna said in his dissenting judgment that “Article 21 cannot be considered to be the sole repository of the right to life and personal liberty.
The right to life and personal liberty is the most deceive right of human beings in civilised societies governed by the rule of law.
Sanctity of life and liberty was not something new when the Constitution was drafted.
It represented a facet of higher values which mankind began to cherish in its, evolution from a state of tooth and claw to a civilized existence.
The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution.
It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution.” 34Harshit Khare, Position of Fundamental Rights during Emergency, (15 March 2011) <http://www.legalservicesindia.com/article/article /position-of-fundamental-rights-duringemergency-589-1.html > (accessed 15 September 2016) 35 ibid http://www.ejil.org/journal/Vol2/No1/art3.html http://www.legalservicesindia.com/article/article/position-of-fundamental-rights-during-emergency-589-1.html http://www.legalservicesindia.com/article/article/position-of-fundamental-rights-during-emergency-589-1.html http://www.legalservicesindia.com/article/article/position-of-fundamental-rights-during-emergency-589-1.html Brawijaya Law Journal Vol.5 No 1 2018 Culture and Technological Influence in Regulation Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited | 51 reason behind any arbitrary killing.36 Although Article 4 of the ICCPR said that what a state party could do during state emergency and a list of non-derogable rights but also the Article 13(A) of the General Committee 29 of the Human Rights Committee says that, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.
From the above discussion, it is clear that there are two kinds of fundamental rights; derogable and non-derogable.
However, in the Constitution of Bangladesh, there is no such kind of classifications, but we have found out some fundamental rights create a cause of action and some rights cannot create any cause of action.
But in the case of Ataur Rahman vs Muhibur Rahman, the Apex court of Bangladesh interpreted those rights without any classifications.
The court also said that it is for the President to decide the enforcement of which of the fundamental rights should be suspended during emergency.
This statement is actually creating blanket immunity of the government to abuse the Constitutional rights of the people of Bangladesh.
Hence, this holding is flawed.
Fundamental rights are the protected rights of our Constitution.
Some fundamental rights are even universally recognised rights which are contained in the United Nations Universal Declaration of Human Rights, the U.N. International Covenant on Civil and Political Rights, or the U.N. International 36 Although right to life is not permitted during emergency but, use of force against life can be permitted in the case of absolute necessity: a) in defence of any person from unlawful violence; b) in order to affect a lawful arrest or to prevent the escape of a person lawfully detained; c) in action lawfully taken for the purpose of quelling a riot or Covenant on Economic, Social and Cultural Rights.
Such as the right to life, the prohibition of torture, slavery etc.
These rights cannot be derogated during a state of emergency.
However, the decision of the court in Ataur Rahman v. Muhibur Rahman is erroneous decision, where the Apex court of Bangladesh tried to justify that the President can derogate any fundamental right during an emergency.
Such a proposition is contradicting core parts of our Constitution as well as several international instruments.
It seems to us that our Constitution has given the power to the President to suspend certain fundamental rights under Article 141C of the Constitution but, cannot suspend Articles 27 to 35 and 41 of the Constitution.
IV.
CONCLUSIONS AND SUGGESTIONS To get back the peace in the country, sometime, it is very much essential to derogate certain rights during emergency.
However, derogation shall not be a weapon that can be used as a veil in certain violating human rights.
Undoubtedly, these basic human rights are so imperious for stabilising humanity.
Suspending them would actually destroy the human essence and also will be against the concept of ‘rule of law’.
Rule of law considers the power laws, but not the power of men.
The men who possess power should remember that a man can go higher and higher but, the laws are above the man.37 Justice Jagdish Singh Khehar rightly cited the meaning of rule of law which was explained by Jeffrey Jowell in his seminal article “The Rule of Law Today”: insurrection.
See: McCann and others v United Kingdom 21 ECHR 97 GC (1995), Osman v United Kingdom EHRR 101 (1998) where killing was justified.
37 U/A 143(1) Of Constitution vs Of India on 27 September 2012, p 87, para 36 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 52 | Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited “Rule of law principle primarily applies to the power of implementation.
It mainly represents a state of procedural fairness.
When the rule of law is ignored by an official it may on occasion be enforced by courts.”38 Procedural fairness is one of the core foundations in implementing human rights.
To ensure rule of law, state should avoid using arbitrary power.39 In another perspective, these rights are so important to control the behavior of a human being.
Therefore, ensuring these rights would essentially approve the sustenance of human life.
The progression of the global protection of human rights has been sculpted by several national and international instruments.
It is necessary to remember that the purpose of declaring an emergency is to protect the value of the society which is subjected to a provisional threat.
An emergency should not be declared for the purpose of making sarcasm which will scrape out the idea of ‘rule of law’.
No matter how serious an emergency is should always follow the minimum standard; otherwise, it will destroy the bond between legality and democracy and also will terminate all impression of a decent and civilised life.
REFERENCES Book Emilie M. Hafner-Burton, Laurence R. Helfer, and Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties, (International Organization of Duke University: 2011), 676 M. Ehteshamul Bari, The Unjust Exercise of Emergency Powers in Bangladesh and Their Consequent Impact on the Fundamental Rights: A Critical Appraisal, (Mykolas Romeris University: 2014) Mahmudul Islam, Constitution of Bangladesh, (Mullick Brothers: 2012) Carol Christine Fair, On the Issues: Bangladesh, (Washington DC: United States of Institute of Peace: 2007) Journal Articles Muhammad Nasrullah Virk, ‘Doctrine of Necessity-Application in PakistanCases of Immense ImportanceA 38 ibid, p 48, para 100 Critical Review’ (2012) 2 (2) International Journal of Social Science and Education, 83 Joan Hartman, ‘Derogations from Human Rights Treaties in Public Emergencies’ (1981) 22 Harvard International Law Journal, 6 Gennady M. Danilenko, ‘International Jus Cogens: Issues of Law-Making’, (1991) 2 European Journal of International Law, 42 International Convention International Covenant on Civil and Political Rights 1966 United Nations Universal Declaration of Human Rights (UDHR) UN International Covenant on Civil and Political Rights (ICCPR) UN International Covenant on Economic, Social and Cultural Rights (ICESCR).
39 ibid, p 71 Brawijaya Law Journal Vol.5 No 1 2018 Culture and Technological Influence in Regulation Rahman Fundamental Rights in Times of Emergency: Ataur Rahman vs Muhibur Rahman Revisited | 53 Legislations European Convention on Human Rights 1950 Bangladesh Constitution legislation of 1958 Martial Law Cases The State[Pakistan] vs. Dosso and Another [1958] PLD SC (PAK.)
533 Ataur Rahman v. Muhibur Rahman 14 BLC (AD) 62, 69, para 16 (2009) Internet Sources George Williams, The Case that Stopped a Coup?
The Rule of Law in Fiji (27th November 2003) s< http://www.victoria.ac.nz/law/centres/ nzcpl/publications/occasional-papers/ publications/OP_Williams.pdf > (accessed 15 September 2016) Harshit Khare, Position of Fundamental Rights during Emergency, (15 March 2011) <http://www.legalservicesindia.
com/article/article/position-offundamental-rights-duringemergency-589-1.html > (accessed 15 September 2016) http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/%20publications/OP_Williams.pdf http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/%20publications/OP_Williams.pdf http://www.victoria.ac.nz/law/centres/nzcpl/publications/occasional-papers/%20publications/OP_Williams.pdf
70 | DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.05 Regional Economic Development Strategy: Increasing Local Generated Domestic Revenue of the Regional-Owned Enterprises in the Oil and Gas Sector Indah Dwi Qurbania, Theresia Sumarnob, Retno W. N Cassyc aFaculty of Law, Universitas Brawijaya.
Email: indah.qurbani80@ub.ac.id* bCentre for Energy, Petroleum, and Mineral Law and Policy, University of Dundee Email: t.b.sumarno@dundee.ac.uk cFaculty of Law, Universitas Brawijaya.
Email: cnickent@gmail.com Submitted : 2020-02-07 | Accepted : 2020-04-22 Abstract: This paper illustrates how to develop a local development strategy in the establishment regulation of regional enterprises in the oil and gas sector in Bojonegoro District, Indonesia.
This paper focuses on the locally generated domestic revenue in Bojonegoro, which have believed to be one of the most important strategies in their economic development.
The oil and gas sector has contributed to almost 50% of the regional economic growth in Bojonegoro.
However, the community in the region has not yet received an optimal benefit from the contribution as this sector only contributes 4.6% for its local employment in 2018 in comparison with the agrarian sector which contributes 36% for its local employees.
The legal research conducted in this paper is juridical normative research by emphasising the establishment arrangement of the oil and gas regional enterprises to increase the locally generated domestic revenue from the sector.
According to the Ministry Regulation of Ministry of Energy and Mineral Resources (MoEMR) Republica of Indonesia No.
1, 2008 on Guidelines for the Exploitation of Petroleum Mining in Mature Field stated that any Local (Village) Enterprise Unit (“KUD”) or Regional Local Enterprises (“BUMD”).
Keywords: strategy; locally generated domestic revenue; oil and gas; BUMD; KUD.
I.
INTRODUCTION Bojonegoro is located on the west part of the East Java Province in the border with the Region of Blora that located in the Central Java Province.
Geographically, Bojonegoro has located on coordinate 6o 59’ 1 Bappeda Provinsi Jawa Timur, Kabupaten Bojonegoro, <http://bappeda.jatimprov.go.id/bappeda/wpto 7o 37’ South Latitude and 112o 25’ to 112o 09’ East1 Longitude, 110kms away from the capital city of the province.
The large of the region is 230,706 acres and administratively is bordering with Tuban District on the north, Lamongan District on the east, the District of content/uploads/potensi-kab-kota-2013/kabbojonegoro-2013.pdf> accessed on 1 January 2020. mailto:indah.qurbani80@ub.ac.id* mailto:t.b.sumarno@dundee.ac.uk mailto:cnickent@gmail.com http://bappeda.jatimprov.go.id/bappeda/wp-content/uploads/potensi-kab-kota-2013/kab-bojonegoro-2013.pdf http://bappeda.jatimprov.go.id/bappeda/wp-content/uploads/potensi-kab-kota-2013/kab-bojonegoro-2013.pdf http://bappeda.jatimprov.go.id/bappeda/wp-content/uploads/potensi-kab-kota-2013/kab-bojonegoro-2013.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Qurbani, Sumarno, Cassy Regional Economic Development Strategy... | 71 Madiun, Nganjuk, and Jombang on the south, the District of Ngawi and Blora (Central Java).2 Before 2011, Bojonegoro consisted of 27 sub-districts, and in 20113 a new subdistrict was developed, called Gayam, as a result of a division in Bojonegoro.
Gayam consists of 12 villages that were part of the 2 sub-districts, Kalitidu and Ngasem.
This division was determined based on the Regional Regulation No.
22, 2011 on the Establishment of Gayam Sub-District in Bojonegoro.
Currently, Bojonegoro has 28 sub-districts with 419 villages and 11 village office.4 Table I-1 shows the area on each subdistrict in Bojonegoro.
Table 1.
Sub-Districts in Bojonegoro No Sub-Districts Area Ha % 1 Margomulyo 13.968 6,05 2 Ngarho 7.148 3,1 3 Tambakrejo 20.952 9,08 4 Ngambon 4.865 2,11 5 Sekar 13.024 5,65 6 Bubulan 8.473 3,67 7 Gondang 10.701 4,64 8 Temayang 12.467 5,4 9 Sugihwaras 8.715 3,78 10 Kedungadem 14.515 6,29 11 Kepohbaru 7.964 3,45 12 Baureno 6.637 2,88 13 Kanor 5.978 2,59 14 Sumberejo 7.658 3,32 15 Balen 6.052 2,62 16 Sukosewu 4.748 2,06 17 Kapas 4.638 2,01 18 Bojonegoro 2.571 1,11 19 Trucuk 3.671 1,59 20 Dander 11.836 5,13 21 Ngasem 14.721 6,38 22 Kalitidu 6.595 2,86 23 Malo 6.541 2,84 24 Purwosari 6.232 2,7 25 Padangan 4.200 1,82 26 Kasiman 5.180 2,25 27 Kadewan 5.651 2,45 28 Gayam 5.005 2,16 total 230.706 100 2 Cipta Karya, Laporan Akhir Sippa Online: Review RPIJM Kabupaten Bojonegoro 2017-2021, page, 2 <http://sippa.ciptakarya.pu.go.id/sippa_online/ws _file/dokumen/rpi2jm/DOCRPIJM_15035562060 02__BAB_2_PROFIL_KABUPATEN.pdf> accessed on 1 January2020.
Sources: Regional Regulation No.
22, 2011 on the Establisment of Sub-districts in Bojonegoro; Regional Regulation No.
26, 2011 on Neighbourhood (RT/RW) in Bojonegoro Bojonegoro, being studied in this paper, is one of the oil and gas producers region in Indonesia.
The oil and gas and economic potential in Bojonegoro can contribute to the economic growth in Bojonegoro.
This can be done by improving the investment activities either by the regional government or private investors.
In 2017, the government enacted the Regent Regulation No.
30, 2017 on Guidelines for the Development of Mining and Miners Groups in Mature Fields in Bojonegoro.
It states that the activities in the mature field should have done by the BUMD PT.
Bojonoegoro Bangun Sarana (PT.BBS) and omits the right of the local (village) unit enterprise (“KUD”) for food sources.
Having these guidelines implemented, the regent recommended PT.
BBS to run the mature field activities.
However, PT.
BBS has not approved the MoEMR.
This has been a legal issue in Bojonegoro since this KUD was the one who had run the mature fields until then and was the largest contributor to Pertamina.
Surprisingly, PT BBS has reported a loss in the mature field activities.
An investment is economically feasible when it brings positive impacts on regional economic development in which a project is located.
This impact can be an increase in the locally generated domestic revenue or an increase in the employment rate in that region.
In a bigger economic perspective, an investment is economically feasible when it contributes to the Gross Domestic Product (GDP).
BUMD is a regional enterprise established by the regional government in which most/ all of the shares are owned by 3 Dwi Retno Ariyanti, ‘Pengaruh Sektor Migas Terhadap Pengembangan Wilayah Bojonegoro’, (2013) 2(2) Jurnal Teknik POMITS, Page C-100, <http://ejurnal.its.ac.id/index.php/teknik/article/vi ew/4343/1040> 4 Bappeda Provinsi Jawa Timur, above n 1. http://sippa.ciptakarya.pu.go.id/sippa_online/ws_file/dokumen/rpi2jm/DOCRPIJM_1503556206002__BAB_2_PROFIL_KABUPATEN.pdf http://sippa.ciptakarya.pu.go.id/sippa_online/ws_file/dokumen/rpi2jm/DOCRPIJM_1503556206002__BAB_2_PROFIL_KABUPATEN.pdf http://sippa.ciptakarya.pu.go.id/sippa_online/ws_file/dokumen/rpi2jm/DOCRPIJM_1503556206002__BAB_2_PROFIL_KABUPATEN.pdf http://ejurnal.its.ac.id/index.php/teknik/article/view/4343/1040 http://ejurnal.its.ac.id/index.php/teknik/article/view/4343/1040 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 72 | Qurbani, Sumarno, Cassy Regional Economic Development Strategy... the regional government (Regional Development Law No.
23, 2014)5.
There are two classifications of BUMD, according to the purpose of the BUMD itself, they are BUMD that focuses on public services and BUMD to increase the regional revenue.
The purpose of the BUMD establishment is to develop the region through community services, public services, and increasing the revenue.
The definition above indicates that BUMD puts efforts into business activities related to investment and profitability by selling goods/services.
BUMD is a regional business investment activity to drive and cultivate regional economy, meaning, BUMD is part of economic activity to support the regional finance and provide services to the community in its related service area.
The profit from BUMD activities is other revenue sources for PAD (locally generated domestic revenue), which have shared with the regional government in a certain percentage.
Therefore, optimising the role and contribution of BUMD can support the regional government in facing the challenges in collecting PAD.
This background has led the researcher to study the case in the oil and gas sector that is maintained by the BUMD in Bojonegoro by looking at the establishment arrangement of the BUMD.
Therefore, to improve regional development, the role of BUMD becomes significant as one of the central players in the area where private investors do not take part and as a public services provider.
The BUMD has taken the role to balance the market power and to get involved in cultivating the small and medium scale business activities.
As mentioned earlier, BUMD has a significant role in contributing to regional revenue (PAD).
II.
LEGAL MATERIALS AND METHODS This paper used normative juridical research as the main legal research method.
It conducted by emphasising the establishment arrangement of the oil and gas 5 Article 1, verse 40 of District Government Law No.
23, 2014. regional-enterprises to increase the locally generated domestic revenue from the sector.
This paper also lies on several Indonesia legal instruments and Bojonegoro regional regulations related to gas and oil mining business.
III.
RESULT AND DISCUSSION Formulating regional economic development strategy by increasing the locally generated domestic revenue in the establishment arrangement of BUMD in the oil and gas sector The general objective of economic development is to increase the real income in a fairly and equally distributed in its income and business activities.
By knowing the goal and objective of the development, as well as the weaknesses and strengths of a district, will direct the strategy better, and this strategy will eventually guide the regional government in conducting business activities in their region.
Every region has a national policy to increase control of their investment activities in their region, improve the residents’ role in the economic stability and welfare, and improve its local employment rate and improve their livelihood.
A perspective and involvement from regional that applies the national policy are important for the national economic development.
At the national level, the central government can support the regional government by creating business space and economy, either both nationally and or regionally, to give all the economic players the same opportunities in realising their potential.
In Indonesia, the role of the regional government in implementing the regional economic development strategy is important and influential, whereas the central government will have a role in creating business space for regional economic activities.
This will drive the economic activities as mentioned earlier.
The regional government needs to identify the locations in the region that potentially become the centre of economic activities.
The regional Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Qurbani, Sumarno, Cassy Regional Economic Development Strategy... | 73 government can identify this strategic and fast-growing location by looking at agglomeration activities that happen in the area, such as farming, agricultural activities, animal husbandry, fishery activities, cluster industry, and mining activities.
This location can also be a location that has developed for its natural resources.
According to the Social Macroeconomic Indicator in Bojonegoro in 2018 and the RPJMD, regional tax income, regional retribution, regional resources management, and other allowable regional income sources are contributing to the increase of the real income of locally generated domestic revenue (PAD) in Bojonegoro.
The yearly contribution from 2011 to 2915 from these sources was 14.86%, 27.27%, 3.67%, and 54.19%, respectively.
The income from the regional resources management was not significant comparing to the other regional PAD sources, and the other allowable regional income sources had the highest contribution and significantly increased from IDR 32,346 billion in 2011 to IDR101,391billion in 2015.
The Government Regulation No.
54, 2017 on Regional-Owned Enterprises, Article 9, Verse 5 stated that “The regional needs based on the needs being mentioned in the verse 2, and the feasibility study of BUMD business activities in verse 3, are part of the RPJMD policy” The following discuss the key features in the oil and gas activities by the regional enterprises, the Health Safety & Environment and the Participating Interest (PI).
The Health Safety & Environment Concerns on Old Oil Fields Activities by Regional Entreprises 6 Danang Wahyuhono dkk, ‘Kontrol Pemuda Terhadap Tata Kelola Migas Dan Implikasinya Pada Ketahanan Wilayah Di Kawasan Migas Blok Cepu Kabupaten Bojonegoro’ (2019) 25(1) Jurnal Ketahanan Nasional Volume, 2, <http://repository.umy.ac.id/bitstream/handle/123 456789/29052/C.%2011.pdf?sequence=1>.
Bojonegoro has a quite big potential in oil and gas production.
Bojonegoro can have 600 million barrels to 1.4 billion barrels on their oil reserves and 1.7tcf to 2tcf on its gas reserves.6 This number is the largest estimation for Cepu Blok in Indonesia, running by Exxon Mobile.
Another operator in that block, for the Sukawati field, is JOBPPEJ (Petrochina-Pertamina), with an average production of 3 mmbbl/year.
There is also a Tiung Biru field that is still under exploration activities by Pertamina EP.
This field is a gas field, which according to the study, this gas field can contribute to the additional gas production for 250 tcf/day.
Hence, having these resources, it is believed that the oil and gas sector can contribute 20% to the national production.7 Cepu field and Sukawati field have administratively located in the Ngasem, Sadewan, and Gayam subdistricts.
Apart from oil mining activities that are maintained by big companies, there are also traditional mining activities by the community in the mature oil fields (wells) using simple tools and equipment.
These traditional mining activities should also comply with the Health, Safety, and Environment (HSE) standards of a big company.
The issue with the traditional mining activities by local communities is often concerning the HSE.
Therefore, for any regional entreprises who wish to maintain the mature oil wells should comply with the MoEMR Regulation No.1/2008.
One of the requirements of getting approval for running the activities in the mature oil fields is to submit the work program on health safety and environment activities during the operation.
It is suggested to have collaboration with existing oil and gas companies to maintain the HSE activities.
The local communities maintained the mature oil wells in Wonocolo with permission granted by the regent of Bojonegoro, which then became the 7 Dwi Ratna Putri Purnamaningsih, ‘Pengaruh Kawasan Migas Terhadap Pola Dan Struktur Ruang Perkotaan Kecamatan Kapas Kabupaten Bojonegoro’ (2017) 13 (1) Jurnal Pembangunan Wilayah & Kota, Biro Penerbit Planologi Undip, Volume: 27-43, Maret 2017, 29, <https://ejournal.undip.ac.id/index.php/pwk/articl e/viewFile/14968/11353.
http://repository.umy.ac.id/bitstream/handle/123456789/29052/C.%2011.pdf?sequence=1 http://repository.umy.ac.id/bitstream/handle/123456789/29052/C.%2011.pdf?sequence=1 https://ejournal.undip.ac.id/index.php/pwk/article/viewFile/14968/11353 https://ejournal.undip.ac.id/index.php/pwk/article/viewFile/14968/11353 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 74 | Qurbani, Sumarno, Cassy Regional Economic Development Strategy...
Directorate General of Oil and Gas Authority in 1987.
Currently, these mature oil fields, are owned by Pertamina EP Asset 4, Cepu Field.
Mature fields are considered profitable, therefore, many private investors are attracted to come.
They invested IDR1.5billion for a new well.8 There are 638 oil wells registered in this field, and there were 2,500 miners for those wells.
The residents who mine the oil are obliged to deliver their products to the Pertamina EP through the KUD (food sources KUD).
Pertamina EP does not spend any expenses on maintaining these wells.
The local communities maintain the wells on their own, in groups.
In one group usually consists of 20 to 30 people, and they get paid once a week on Thursday.
9 It was mentioned earlier that mature fields are allowed to be maintained by KUD.10 Mature fields are those fields or wells that were drilled before 1970 and were produced and are located outside of the contract area (WK).
These oil wells are no longer being operated by the SKK Migas operator, as for them, these wells are no longer economically viable, yet to be still profitable for the BUMD and KUD if they operate them.11 On 12 September 2008, KUD was established based on MR No.
1, 2008, and in 2009 the KUD was granted permission by the government to operate and produce the oil from the mature oil wells in the Pertamina EP contract area.
In 2015, the KUD requested for an extension for their activities, but the regent of Bojonegoro did not grant the request.
12 Regent Regulation No.30, 2017 on the Guidelines for the Development of Mining and Miners Groups in Mature Oil Wells in Bojonegoro, was enacted in 2017.
It states 8 Tri Wacrcono Adi, 2018, ‘Potensi Pengelolaan Sumur Minyak Tua Wonocolo Menjadi Objek Wisata Alam’ (online), <junal.acamigas.ac.id/index.php/jesdm/article/do wnload/91/85> Accessed on 27 October 2018, Thesis.
9 Interview with Sutrino, one of the KUD staff (Friday, 16 December 2018).
Thesis.
10 Ministry Regulation of MoEMR No.
1, 2008 on the Guidelines of the Oil and Gas Mining Activities in the Mature Fields.
that the operation for the mature oil wells has conducted by the BUMD PT.
BBS (this was mentioned earlier in the introduction).
PT BBS is the miners’ coordinator for the mature oil wells that have delivered to PT Pertamina.
PT BBS concerns on health, safety, security, and environment (HSSE).
They protect and rehabilitate the environment and insurance for their miners and the community shares.
PT BBS operates 494 mature oil wells from three different fields, Wonocolo, Dandangilo, and Ngrayong Field.
During the waiting period to be granted for 5 years’ permission from the MoEMR, PT BBS has an interim contract for a year.
BUMD keeps maintaining its business activities in the oil and gas sector to improve the shares dividend for the regional government (Bojonegoro).
Participating Interest 10% of BUMDs in the existing oil and gas projects The Government enacted a regulation that regulates the participation of BUMDs in the upstream oil and gas projects that have located in their jurisdiction.
This regulation is to involve BUMDs in oil and gas project by having 10% Participating Interest (PI).13 This implementation has regulated in MoEMR Regulation No.
37/2016.
This PI has expected to maximise the benefits of the project to the local community (in this case is Bojonegoro).
For example, the Cepu Block partnership is 45% owned by ExxonMobil, 45% owned by Pertamina EP Cepu, and 10% owned by BKS which consists of Petrogas Jatim Utama (PJU or BUMD East Java), Sarana Patra Hulu Cepu (SPHC or BUMD Central Java) and PT ADS (BUMD Bojonegoro).
The 10% Participating Interest (PI) is paid to the BUMDs and not to the regional government.
11 Interview with Sutrino, one of the KUD staff (Friday, 16 December 2018).
Thesis.
12 Ibid.
13 Risman Sarifudin, ‘Kewenangan Pemerintah Daerah Pengelolaan Partisipasi Interest (PI) Pada Sektor Migas’, (2019) 5(2, October) Jurnal Sosio Sains, 128-139, 134, <http://journal.lldikti9.id/sosiosains/article/view/3 04/210>.
http://journal.lldikti9.id/sosiosains/article/view/304/210 http://journal.lldikti9.id/sosiosains/article/view/304/210 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Qurbani, Sumarno, Cassy Regional Economic Development Strategy... | 75 Before this regulation took effect, there was an issue with the implementation of the PI by BUMDs.
Since they did not have sufficient capital to invest in the existing project in their jurisdiction, they involved private enterprises to invest.
The idea of maximising the benefits for the local community was not achieved, as the returns on the investment went to the private enterprises (Haikal, 2015)14.
PT.
Asri Dharma Sejahtera (ADS), is one of the BUMD in Bojonegoro that has received participating interest (PI) from Cepu Block, in-kind oil and cost recovery from Banyu Urip Field.
This has contributed to their revenue for USD120million (equivalent to IDR1.7trillion).15 PT ADS received these shares as they invested and took part in the operating expenditures in Cepu Block.
The payment mechanism is not cash but in kind, meaning the oil shares of the government has bought by the Pertamina.
This mechanism applies to other interest participants, such as Pertamina EP Cepu and Coordination Joint Body (BKS).
PT ADS then receives the payment monthly from the sales.
However, this income cannot be directly deposited into the regional cash account since they have to pay to PT Surya Energy Raya (SER) as the funding support for Cepu Block (for the ADS investment from 2009 to 2015).
They have a 75:25, scheme; 75% for PT SER, and 25% for PT ADS.
According to their agreement, PT ADS must pay back the investment for IDR1.363 trillion.
Only after they pay back this amount, PT ADS will receive their shares.
The shares dividend of the BUMD Bojonegoro, PT BBS, has increased to IDR350 million in 2019 from IDR120 million in 2018, with the participating interest from the regional government was IDR11.5billion.
This BUMD who are involved in the oil and gas sector has paid the 14 Haikal, 2015.
Larangan BUMD Gandeng Swasta Dalam Garap Eksplorasi Migas.
[online] Jpip.or.id.
<http://www.jpip.or.id/artikelview419.html> accessed 9 April 2020.
15 Nugroho, BUMD Bojonegoro Terima Pendapatan PI Blok Cepu Rp1,7 Triliun <https://www.suarabanyuurip.com/index.php?/ka bar/baca/bumd-bojonegoro-terima-pendapatan-pishares dividend for their shareholders since 2009.
However, in 2016, the BUMD was no longer paid their shares to the regional government since PT BBS was in loss and only became profitable again in 2017. a.
Legal Basis for the Establishment of Regional-Owned Enterprises in the Petroleum Mining Sector in Bojonegoro Regency BUMD plays an essential role in regional economic development, which has become one of the significant contributions to the PAD apart from regional tax and regional retribution.
Therefore, BUMD should be maintained and operated professionally by applying the Principle of Good Corporate Government (GCG), which includes transparency, accountability, responsibility, independence, and fairness.
There are five BUMDs in Bojonegoro that apply the GCG principle; they are PT ADS, PT BBS, PT.
Griya Dharma Kusuma (GDK), PD Air Minum (PDAM), and PD.
Bank Perkreditan Rakyat (BPR).
Having a better construction is related to the BUMD establishment has made the establishment arrangement clearer, which is stipulated in the Government Regulation No.
54, 2017 on BUMD.
This construction can be legal construction, objectives, capital allowance, and management, which as, a whole will impact the performance of the BUMD.16 According to the Ministry Regulation of MoEMR No.
1, 2008 Article 2, Verse 2: “in the case of a contractor does not operate and produce oil from mature oil wells as mentioned in the verse 1, KUD or BUMD can operate and produce the oil upon approval from the Minister” To enable the coordination with the contractor, the KUD or BUMD must submit blok-cepu-rp1-7-triliun> accessed on 20 December 2019.
16 Donal Devi Amdanata dkk, ‘Implementasi Asas Transparansi Good Corporate Governance Pada BUMD Di Indonesiai, (2019) 7 Jurnal Inovasi Bisnis, 154-161, 158 <http://ejournal.polbeng.ac.id/index.php/IBP/artic le/view/1172>.
https://www.suarabanyuurip.com/index.php?/kabar/baca/bumd-bojonegoro-terima-pendapatan-pi-blok-cepu-rp1-7-triliun https://www.suarabanyuurip.com/index.php?/kabar/baca/bumd-bojonegoro-terima-pendapatan-pi-blok-cepu-rp1-7-triliun https://www.suarabanyuurip.com/index.php?/kabar/baca/bumd-bojonegoro-terima-pendapatan-pi-blok-cepu-rp1-7-triliun http://ejournal.polbeng.ac.id/index.php/IBP/article/view/1172 http://ejournal.polbeng.ac.id/index.php/IBP/article/view/1172 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 76 | Qurbani, Sumarno, Cassy Regional Economic Development Strategy... their request for approval to the Minister c.q Directorate General and Implementing Body, attaching their administrative and technical documents mentioned in the MR of MoEMR No.
1, 2008 Article 3, Verse 3 and 4; they are17: a.
Deed of the establishment of KUD or BUMD and its amendment, certified by the authorised institution b.
Company registration certificate c. Tax registry number (NPWP) d. Certificate of Domicile e. Recommendation letter from the Regency / City Government and approved by the local Provincial Government f. A legalised written statement (materai) stating the ability to meet the provisions of the legislation The technical document consists of: a. Geological map of the requested mature oil fields/wells b.
The number of the well requested c. Production plan and return service fees proposal d. Proposal on work safety and health program as well as environmental management e. Technology is used for producing the oil f. Financial ability The related contractor will evaluate this request,18 and if the result of the evaluation fulfilled all the requirements, the contractor will send the request to be assessed by the Implementing Body.
If the request does not fulfil the requirement, the contractor returns the application request to the KUD or BUMD and reports it to the Implementing Body.
Upon the assessment by the Implementing Body (IB), the IB sends the request to the Minister c.q.
the Directorate General of the Oil and gas to get an approval, considering its project technical and 17 Ministry Regulation of MoEMR No.
1, 2008, on the Guidelines for the Exploitation of Petroleum Mining in Mature Article 3, Verse 2 and 4.
18 Ministry Regulation of MoEMR No.
1, 2008, on the Guidelines for the Exploitation of Petroleum Mining in Mature Article 4, Verse 1. economic.
If necessary, Minister c.q.
the Directorate General can also ask for clarification on this request to the IB, Contractor, and/or KUD or BUMD.
If the request from KUD is approved, the Directorate General, on behalf of the Minister, will grant approval to the contractor through IB.
On the other hand, if it is not approved, the Directorate General on behalf of the Minister must return the document and request to the contractor through IB along with their refusal reasons.
The contract period for this approval for KUD or BUMD is 5 years, and they can request for extension 6 months before the expiry dates of the contract.
19 There is some requirement, to disclose to get an extension, they are: a.
The number and location of the mature oil wells that will be produced b.
Service fees for producing the oil c. The term, extension, and termination of the agreement d. Mechanical equipment and technology being used e. Employment/human resources f. Quality and specification of the oil g. Delivery point of the oil h. Work safety, health, and the environmental aspect i.
Dispute resolution This production agreement must have acknowledged by the IB, and the operational production is regulated in Ministry Regulation of MoEMR No.
1, 2008, on the Guidelines for the Exploitation of Petroleum Mining in Old Oil Well Article 9, Verse 1 and 2.
It has stated that the production activities by KUD or BUMD can only have done for the mature oil fields/wells that have been agreed by the contractor and KUD or BUMD in the production agreement, and the KUD or BUMD can use the mechanical equipment or technology approved by the contractor.
Meanwhile for the service fees for producing the oil are regulated in Article 11 19 Ministry Regulation of MoEMR No.
1, 2008, on the Guidelines for the Exploitation of Petroleum Mining in Mature Fields Article 16.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Qurbani, Sumarno, Cassy Regional Economic Development Strategy... | 77 Verse 1, 2, and 3, which states that the contractor is obliged to give the service fees to KUD or BUMD for all the products delivered to the contractor as a result of production activities.
The amount of the fees is defined based on the agreement between them in the production agreement.
This fee is part of the operating costs for the contractor.
b.
Extracting locally generated domestic revenue strategy through the arrangement of the establishment of regional-owned enterprises in the oil and gas sector in Bojonegoro Regency Economic activity is an activity run by a person, group, or country in the economic sector to produce income to fulfil the needs.
Indonesia runs its economic activity based on the 1945 Republic of Indonesia Constitute Law, Article 33,20 Verse 4 that “The national economics activities are held based on democratic economy with the principle of togetherness, efficiency, fairness, sustainability, environmental insight, independence and by maintaining a balance of progress and national economic unity” This economic activity can have done by their state enterprises.
The state enterprises are any enterprises owned by the state (The State-Owned Enterprises – BUMN) and BUMD.
Having a regional autonomy, the regional government can establish its BUMD for public services purposes, profit-oriented purposes, or both.
Each of the legal enterprises has its characteristics, which have become important for the regional government when deciding the type of the business entity according to the objective of the establishment.
Generally, regional development establishes BUMD based on its potential, characteristics and needs of the region.
Regional Regulation No.
6, 2011 on the Amendment for Regional Regulation of Bojonegoro Regency No.
5, 2006 on the Establishment of PT BBS, mentions that: 20 Indah Dwi Qurbani, ‘Prinsip Hukum Perimbangan Dana Bagi Hasil Minyak dan Gas Bumi’, (2014) a.
The BUMD business sector includes contractor service business activities classified as Big Enterprises, including projects funded by the Bojonegoro Regency Revenue and Budget Expenditures (APBD) b.
To carry out and run industrial businesses which include non-oil and gas mining, oil and natural gas mining, food and beverage industry and canning/bottling (small scale) c. To operate and run business in the field of services, which includes hotel management services, supporting activities in the oil and gas industry, rental of four-wheeled vehicles, rent and management of the property, and all services except services in the field of law and tax.
In 2014, the Government of Indonesia enacted Government Law No.
23, 2014 on Regional Government (2 October 2014).
This law consists of 411 articles that also regulate BUMD.
Before that, the BUMD was not regulated in the Regional Government under Government Law No 32, 2004 but only regulated in Ministry Regulation No.
3, 1998 on Legal form BUMD which, is the Regional Enterprise (PD) and Limited Enterprises (PT).
However, in the latest Law No.
23, 2014, mentions that BUMD consists of Public Regional Enterprises (PUD) and Limited Regional Enterprises (PPD), which have different legal forms compare to the previous one.
There have been changes from Regional Enterprises (PD) to PUD, and Limited Enterprises (PT) to Limited Region Enterprises (PPD).
The definition for BUMD was not stipulated in the Law No.
32, 2004.
The establishment of BUMD must comply with the Regional Regulation.
If they establish PPD, they should comply to the Government Law for Limited Enterprises, in which at least fulfilling these elements: 1) participating interest procedures; 2) organisation structures and staffing; 3) evaluation procedures; 4) good corporate governance; 5) planning, reporting, coaching, monitoring; 6) cooperation; 7) the 29(1) Yuridika, 114, <https://ejournal.unair.ac.id/YDK/article/view/361/195#>.
https://e-journal.unair.ac.id/YDK/article/view/361/195 https://e-journal.unair.ac.id/YDK/article/view/361/195 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 78 | Qurbani, Sumarno, Cassy Regional Economic Development Strategy... use of profits; 8) the assignment of Regional Government; 9) loan; 10) internal audit; 11) assessment on health, restructuring, and privatisation; 12) changes in the legal form; 13) bankruptcy; and 14) mergers, consolidations, and expropriations.
The form of Regional Enterprises (PD) is no longer applicable and needs a change.
Conceptually, this PD should run vital and public services in the region.
The Limited Enterprises (PT) is a general form according to the Law No 40, 2007 on Limited Enterprises, meanwhile the Limited Regional Enterprises (PPD) is also a Limited Enterprises that complies to the same Law as PT, in which its form, the region owns fully or minimum 51% shares.
Therefore, the legal form of the Limited Enterprises (PT) and Limited Regional Enterprises (PPD) can be likened.
The following has discussed on the juridical strategy of BUMD’s establishment and the regional policy strategy related to the BUMD’s activities.
Juridical strategy of the BUMD’s establishment Investment activity is one of the obligations of the Regional Government, which contributes significantly to achieving the region’s vision and mission, especially in improving investment.
This capital investment has an important role in the success of the fourth development year, which is an equal distribution to suppress the regional disparity.
Therefore, it is important to establish BUMD aligning with the provisions of the legislation.
The General Policy on Regional Planning is by allocating and prioritising the expenditures budget to participating interest/investment.
Therefore, any surplus APBD (Regional Revenue and Budget Expenditures), can be allocated to the participating interest.
The establishment of BUMD has based on the regional needs and the business feasibilities from the BUMD that will establish.
The regional needs assessment is by analysing the economic feasibility, market, financial feasibility, and other aspects, such as legislation, technology availability, and human resources availability.
The regional needs and business feasibility assessment have conducted as part of the RPJMD policy, which has regulated in the Government Regulation No.
54, 2017 Article 9, Verse 1, 2, 3, 4, and 5.
According to that regulation, the establishment of the BUMD determined and regulated in the Regional Regulation.
As mentioned earlier, BUMD consists of Public Regional Enterprises (PUD) and Limited Regional Enterprises (PPD).
The position of regional public companies as legal entities has obtained when the regional regulations governing the establishment of regional public companies come into force.
Regionally owned companies are BUMDs in the form of limited liability companies whose capital is divided into shares that are wholly or at least 51% of their shares owned by one region.
Regional Policy Strategy The development of the Bojonegoro Regency policy for 2019 – 2023 is stipulated in Bojonegoro’s RPJMD document and detailed in the yearly RKPD determined by the regent.
According to the RPJMD, the vision of the Bojonegoro Regency is “making Bojonegoro as the people’s income sources for the realization of a faithful, prosperous and competitive society” and the missions of Bojonegoro are: Creating a social life system based on religious values and local wisdom.
Achieving clean, transparent, and responsible governance.
Achieving continuous improvement in the quality of human resources Creating a sense of security and partisanship for women, children, people with disabilities, and the poor Realising an increase in welfare based on society’s economy and creative economy Realizing regional economic competitiveness based on local potential Realising infrastructure development that is equitable and environmentally friendly.
Based on information from the Head of the Bojonegoro Regency Planning and Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Qurbani, Sumarno, Cassy Regional Economic Development Strategy... | 79 Development Agency, it has stated that the contribution of the oil and gas sector is very important to the economic growth of the Bojonegoro Regency.
This oil and gas sector has contributed to its profits sharing in 2018 amounted to IDR2.2 trillion, while the rest of the surplus from the whole APBD reached IDR2.1trillion.
This was due to the realisation of the profit sharing was done in the fourth quarter in which the increase of the profit-sharing was mainly contributed by the increase of the oil price at the end of the year.
Bojonegoro can consolidate their democracy well and can effectively manage their oil and gas revenues for the maximum interests and welfare of the society, especially in the situation when Cepu Block is the largest contributor to the average daily lifting in Indonesia with a production of 220 million barrel/day.
Democratic policymaking has then expected to improve the ability of the community and existing resources to be mobilized better.
Hence, programs such as education, health services, forest and land rehabilitation efforts, and agricultural development can have realized faster and more directed based on the local capabilities of the community and natural resources.
For oil and gas producing regions, such as Bojonegoro Regency, the expectation of prosperity is achieved, and at the same time is limited by, the central government provisions regarding the size of regional shares in the framework of Participating Interest (PI) and revenue profit sharing (DBH) obtained by the regional government (Pemda).
The greater the percentage of both PI and profit-sharing, the greater the income received by the regional government.
It is obvious that in the era of regional autonomy, the management of the oil and gas sector was a policy that was not decentralized.
Based on Law No.
22 of 2001 concerning Oil and Natural Gas, the management and utilization of oil and gas wealth is the authority of the central government both in terms of its regulation, supervision, management, and 21 Indah Dwi Qurbani, ‘Politik Hukum Pengelolaan Minyak Dan Gas Bumi Di Indonesia’ (2012) 5(2) Arena Hukum, 115-121, 118, utilisation.21 The fundamental consideration for this is: "That oil and gas is a strategic non-renewable natural resource controlled by the state and is a vital commodity that controls the lives of many people and has an important role in the national economy so that its management must be able to maximally provide prosperity and welfare for the people."
(1945 Republic of Indonesia Constitute Law Article 33) The conception "controlled by the state," can be interpreted as "owned by the state," namely ownership in the broadest sense, ownership in terms of public, law which certainly serves as a source for the understanding of private ownership.
The land, water, and all the wealth underneath of the state and water are not only understood in terms of control through mere regulatory functions.
By being controlled by the state, the wealth of natural resources is entirely for the benefit of all people.
Along with regional autonomy, where the local government demands to be involved in the management of natural resources in the region, the central government accommodates the distribution of shares of capital participation in the regions.
The Bojonegoro government has successfully minimalized the knowledge gap between oil and gas industry players who are indeed very professional in their fields and regional human resources.
Eventually, the smaller this knowledge gap, within certain limits, will further increase the enthusiasm of the region to advance itself through independent activities in the process of management and utilization of natural resources, which in this case can be accommodated by BUMD.
IV.
CONCLUSION Based on Regulation of the Minister of Energy and Mineral Resources No.
1, 2008 concerning Guidelines for the Exploitation of Old Oil Wells, that old wells may have <https://arenahukum.ub.ac.id/index.php/arena/arti cle/view/113/102>.
https://arenahukum.ub.ac.id/index.php/arena/article/view/113/102 https://arenahukum.ub.ac.id/index.php/arena/article/view/113/102 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 80 | Qurbani, Sumarno, Cassy Regional Economic Development Strategy... cultivated through Local (villages) Enterprise Unit (KUD) or Regionally Owned Enterprises (BUMD).
The BUMDs established in Bojonegoro is PT.
Asli Dharma Sejahtera (ADS), PT.
Bojonegoro Bangun Sarana (BBS), PT.
Griya Dharma Kusuma (GDK), PD.
Drinking Water (PDAM), PD.
BPR.
The establishment of BUMD has based on the potential, characteristics, and needs of the region.
Based on Regional Regulation Number 6 of 2011 concerning Amendment to Regional Regulation of Bojonegoro Regency Number 5 of 2006 concerning the Establishment of PT BBS stated that: first, The BUMD business sector includes contractor service business activities that have classified as Big Enterprises, including projects, as well as those, are funded by the Bojonegoro Regency Regional Budget.
Second, carrying out and running industrial businesses which include non-oil and gas mining, oil and natural gas mining, food and beverage industry and canning/bottling (small scale).
Third, Operating and running a business in the field of services, which includes hotel management services, supporting activities in the oil and gas industry, rental of fourwheeled vehicles, rental, and management of the property and all services except services in the field of law and tax.
The regional development policy in Bojonegoro for 2019-2023 is stipulated in the Bojonegoro’s Medium-Term Regional Development Planning (RPJMD) and has detailed on the Yearly Regional Development Planning (RKPD) which was determined by the regent (bupati).
Moreover, nearly 50% of regional economic growth has driven by the oil and sector, but unfortunately, the local community has not received the optimal contribution from this growth.
This was due to this sector absorbed only 4.6% of the local workforce in 2018 when compared to the agricultural sector, which absorbed labour up to 36%.
The democratic policy-making has expected to further improve the ability of the community, and the existing resources can be mobilised better for better education, health care services, environmental rehabilitation, agriculture development.
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Ministry of Energy and Mineral Resources, Guidelines of The Oil and Gas Mining Activities in The Mature Fields (Jakarta: Ministry of Energy and Mineral Resources, 2008).
Ministry of Energy and Mineral Resources, Provisions on Participating Interest 10% Offering on the Oil and Gas Working Area.
(Jakarta: Ministry of Energy and Mineral Resources, 2016).
Rencana Pembangunan Jangka Menengah Kabupaten Bojonegoro Tahun 20162021.
Journal Amdanata, Donal Devi, et al, Implementasi Asas Transparansi Good Corporate Governance Pada BUMD Di Indonesia, Jurnal Inovasi Bisnis 7 (2019) 154-161, Page 158, http://ejournal.polbeng.ac.id/index.php /IBP/article/view/1172.
Ariyanti, Dwi Retno, ‘Pengaruh Sektor Migas Terhadap Pengembangan Wilayah Bojonegoro’, (2013) 2(2) Jurnal Teknik POMITS, Page C-100, <http://ejurnal.its.ac.id/index.php/tekn ik/article/view/4343/1040>.
Purnamaningsih, Dwi Ratna Putri, Pengaruh Kawasan Migas Terhadap Pola Dan Struktur Ruang Perkotaan Kecamatan Kapas Kabupaten Bojonegoro, Jurnal Pembangunan Wilayah & Kota, Biro Penerbit Planologi Undip, Volume 13 (1) : 27-43, Maret 2017, Page 29, https://ejournal.undip.ac.id/index.php/ pwk/article/viewFile/14968/11353.
Qurbani, Indah Dwi, Prinsip Hukum Perimbangan Dana Bagi Hasil Minyak dan Gas Bumi, Yuridika: Volume 29 No 1, Januari April 2014, Page 114, http://ejournal.polbeng.ac.id/index.php/IBP/article/view/1172 http://ejournal.polbeng.ac.id/index.php/IBP/article/view/1172 http://ejurnal.its.ac.id/index.php/teknik/article/view/4343/1040 http://ejurnal.its.ac.id/index.php/teknik/article/view/4343/1040 https://ejournal.undip.ac.id/index.php/pwk/article/viewFile/14968/11353 https://ejournal.undip.ac.id/index.php/pwk/article/viewFile/14968/11353 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Qurbani, Sumarno, Cassy Regional Economic Development Strategy... | 81 <https://ejournal.unair.ac.id/YDK/article/view/3 61/195#>.
Qurbani, Indah Dwi, Politik Hukum Pengelolaan Minyak Dan Gas Bumi Di Indonesia, Arena Hukum, Volume 5, No 2 (2012), pp.
115-121, Page 118, <https://arenahukum.ub.ac.id/index.ph p/arena/article/view/113/102>.
Wahyuhono, Danang dkk, Kontrol Pemuda Terhadap Tata Kelola Migas Dan Implikasinya Pada Ketahanan Wilayah Di Kawasan Migas Blok Cepu Kabupaten Bojonegoro, Jurnal Ketahanan Nasional Volume 25, No.
1, April 2019, Page 2, <http://repository.umy.ac.id/bitstream/ handle/123456789/29052/C.%2011.pd f?sequence=1>.
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54, 2017 on Regional-Owned Enterprises.
Ministry Regulation of Ministry of Energy and Mineral Resources (MoEMR) Republica of Indonesia No.
1, 2008 on Guidelines for the Exploitation of Petroleum Mining in Old Oil Well.
Regional Regulation Number 6 of 2011 concerning Amendment to Regional Regulation of Bojonegoro Regency Number 5 of 2006 concerning the Establishment of PT BBS.
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22 of 2001 concerning Oil and Natural Gas.
Law No.
23, 2014 on Regional Government.
Law No 40, 2007 on Limited Enterprises.
1945 Republic of Indonesia Constitute Law.
Internet Bappeda Provinsi Jawa Timur, Kabupaten Bojonegoro, <http://bappeda.jatimprov.go.id/bappe da/wp-content/uploads/potensi-kabkota-2013/kab-bojonegoro-2013.pdf> Cipta Karya, Laporan Akhir Sippa Online: Review RPIJM Kabupaten Bojonegoro 2017-2021, 2 <http://sippa.ciptakarya.pu.go.id/sippa _online/ws_file/dokumen/rpi2jm/DOC RPIJM_1503556206002__BAB_2_P ROFIL_KABUPATEN.pdf> Nugroho, BUMD Bojonegoro Terima Pendapatan PI Blok Cepu Rp1,7 Triliun <https://www.suarabanyuurip.com/ind ex.php?/kabar/baca/bumd-bojonegoroterima-pendapatan-pi-blok-cepu-rp17-triliun>.
Haikal, Larangan BUMD Gandeng Swasta Dalam Garap Eksplorasi Migas.
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DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.03 | 189 State Role in Balancing Harmony in a Diversed Society: Regulating Religions in Indonesia Iza Rumesten RS1 1Law Faculty of Sriwijaya University Email: rumesten_iza@yahoo.com Submitted : 2018-05-25 | Accepted : 2018-10-24 Abstract: As a State in which its society believes in the existence of God, it is not a surprising fact that a number of religions developand recognized in Indonesia.
These include Islam, Catholic, Protestan, Hindu, Budha and Konghucu.
Since most of Indonesian people are the followers of Islam, this religuions become the majority in Indonesia.
Certain matters are regulated separately from the national laws, so that such laws only applicable for muslim.
These include arrangement on marriage between moslem, which is provided by Indonesian Act Number 1 Year 1974 on Marriage.
Indonesia also has a specific religious court for moslem.
The competence of religious court for moslem is clearly stipulated in Article 1 paragraph (1) of Act Number 50 Year 2009 on Religious Courts.
Article 49 of the Act stipulates that the religious courts have the duty and authority to examine, decide, and resolve cases in the first instance among Moslim in the field of marriage, inheritance, will, grant, waqaf, zakat, infaq, shadaqah and sari'ah economy.
While some argues that the existance of religious court can be seen as Government failures in guarantee constitutional rights for minority, this paper seeks to find how to prevent potential religious disharmony in Indonesia.
Based on the results of normative juridical research, it can be concluded that ideal arrangements related to religion is that it cannot separate the judiciary between Islam and other religions, because it might create possible sense of injustice and disharmony of minority religions.
Thus, a specialized religious court for moslem might not be necessary.
Keywords: discrimination, arrangement, religion, religious court, Indonesia.
I.
INTRODUCTION Before turning into a state, Indonesia has already had diversities among the regions.1 According to I Nyoman Nurjaya, 2 1 Iza Rumesten RS, Makna Keragaman Daerah Dalam Pola Hubungan Hukum Antara Pemerintah Pusat dan Daerah pada Negara Kesatuan Republik Indonesia (Disertation, Faculty of Law.
Brawijaya University, 2016), 2-3. the legal fact of diversity is a legal plurality, where applicable, state law, religious law, and customary law work together and are applied in governance.
In addition, the 2 I Nyoman Nurjaya, Menuntaskan Agenda Reformasi; Dinamika Pembangunan Hukum Di Indonesia, Paper presented at Pengukuhan Guru Besar yang dibukukan, (Malang; Setara Press dan FH UB, 2008), 116.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 190 | RS State Role in Balancing Harmony in a Diversed Society... presence of 6 (six)3 religions, namely; Islam, Protestantism, Catholicism, Hinduism, Buddhism, Confucianism and other local belief in God The Almighty is embraced by Indonesian people with various growth rates.4 The guidance of the six religions is under the Ministry of Religious Affairs, while other beliefs are under the Ministry of Tourism.
The diversity of religion embraced by Indonesian people makes the issue of religion into a very complicated issue and prone to cause conflict.
A properly managed diversity will be a strength as it can be a remarkable positive potential for the progress of the nation.
On the contrary, diversity can also become a negative strength that can destruct the nation.
The founders of the nation have long been aware of it, even before Indonesia independence.
This is the proved with the establishment of Bhinneka Tunggal Ika as the motto of Indonesia that means "unity in diversity".
The founders of the country are already aware from the beginning that the issue of religion is very sensitive.
Therefore, the formulation of the first principle of Pancasila said "God".
This formula reflects the recognition of the equality of all religions.
The state then guarantees that everyone is 3 Catalog of Central Bureau of Statistics (BPS), Citizenship, ethnicity, Religion, and the Everyday Language of Indonesia.
The Results Of The Population Census Of 2010.
Jakarta (Indonesia; Badan Pusat Statistik, 2010), p. 5.
See also page http://www.bps.go.id.
http://www.bps.go.id/website/pdf_publikasi/water mark%20_Kewarganegaraan,%20Suku%20Bangs a,%20Agama%20dan%20Bahasa_281211.pdf.
Retrieved on September 10, 2015.
Regarding the recognition of the sixth of this religion can also be seen on the page http://demografi.bps.go.id/phpfiletree/bahan/kum pulan_tugas_mobilitas_pak_chotib/Kelompok_1/ Referensi/BPS_kewarganegaraan_sukubangsa_ag ama_bahasa_2010.pdf.
Retrieved on November 7, 2011. free to embrace the religion and worship according to each religion.
It is expressly 1945 Indonesian Constitution.
Furthermore, in Article 29 paragraph (2) of the 1945 Indonesian Constitution, it is clearly stipulated that the state guarantees freedom for each citizen to embrace religion and worship according to their religion and belief.
The formulation of Pancasila first principle and Article 28E paragraph (1) and Article 29 paragraph (2) of 1945 Indonesian Constitution prove that the government respects the right of the religion of the whole Indonesian people as an essential human right.
However, there is a denial in terms of religious rule that is set in legislation as follows.
First, the formulation of Article 2, Act Number 3 Year 2006 to Religious Judicature regulates that religious judicature is one of judicial power for Muslim people seeking justice about a particular case.
Religious judicature holds law and justice enforcement for the people seeking justice of specific matters for the Muslim community in the field of marriage, inheritance, will, grant, waqaf, zakat, infaq, sadaqah, and Islamic economics.
From Article 2, Act Number 3 Year 2006, it is said that those seeking for 4 Based on the population census on 2000, 88% of Indonesian people is Islam (Muslim), while the rest are Protestant, Catholic, Hindu and less than 1% of Indonesia's population is Buddhist, Jewish and traditional religions.
http://www.state.gov/g/drl/rls/irf/2009/127271.ht m. Retrieved on November 7, 2017.
The results of Indiyanto research based on the management of statistical data on population census on 2000 and 2010 from the Central Bureau of Statistics (BPS) mapping of the growth of religious life in Indonesia as follows.
Islam 87%, Christian 7%, Catholic, 2.91%, Hindu To 1.69%, Buddhist 0.72 Percent, Confucianism Is 0.05%.
https://pgi.or.id/membaca-demografi-agamaagama-di-indonesia/ retrieved November 7, 2017.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development RS State Role in Balancing Harmony in a Diversed Society... | 191 justice in Indonesian courts in are both Indonesian citizens and foreigners.
The formulation and of explanation Article 2, Act Number 3 Year 2006 has already shown the discrepancy.
In the formulation of Article 2, the religious judicature is one of the actors of the judicial power for the people seeking justice who are Muslim about the particular case, while the explanation of Article 2 explains that what is meant by people's seeking justice is every person both Indonesian citizens and foreigners who seek justice in the courts of Indonesia.
Second, Article 1 letter b of Act Number 1 Year 1974 on Marriage.
Here, a religious court is for them who are Muslim and district court for non-Muslim.
A fundamental question comes from the regulation of this chapter is whether Islam has a higher position than other religions because Muslim community has a special religious court while others religion communities go to the District Court (general court).
Third, Article 49, Act Number 50 Year 2009 in Religious Judicature explains that the Religious Court duty and authority are to examine, decide, and resolve cases at the first level among Muslims in the field of marriage, inheritance, will, grant, waqaf, zakat, infaq, sadaqah and Islamic economics.
Those three articles prove the existence of discrimination in the religious rules in Indonesia.
In connection with that matter, Manotar Tampubolon says that Indonesian Government often tolerates the action of extreme groups and fails to enforce the law to protect the minority groups.
The government also fails to provide guarantees and fulfillment of the constitutional rights of minority religious 5 Manotar Tampubolon, Disfungsi MK Selaku Pengawal Hak-Hak Konstitusional Kelompok Agama Minoritas, in Dri Utari Christina and Ismail Hasani (Ed), Masa Depan Mahkamah Konstitusi groups and often tolerates if any discriminatory action on the minority religions group happens.5 This happens due to the presence of discrimination and a discrepancy between the Act Number 50 Year 2009 on Religious Judicial and Act Number 1 Year 1974 on Marriage Article 28E paragraph (1) and Article 29 paragraph (2) of the 1945 Indonesian Constitution.
Based on the background, the formulation of the problem discussed in this paper is how to prevent discrimination of regulation of religion in Indonesia.
II.
LEGAL MATERIALS AND METHODS This study uses the normative method.
The approach used in article writing is the legislation approach and analytical approach.
The law analyzed in this study includee international laws, which are Universal Declaration of Human Rights 1948 and International Covenant on Civil and Political Rights.
Whereas nationall laws include Indonesian Act Number 1 Year 1974 on Marriage, Act Number 50 Year 2009 on Religious Court, Act Number 3 Year 2006 on Religious Judicature, Act Number 48 Year 2009 on Judicial Power as well as the 1945 Indonesian Constitution.
The legal materials used in this research were primary and secondary laws.
Primary legal materials are in the form of laws and court decisions.
Secondary legal materials are in the form of legal books, law papers and journals.
III.
RESULTS AND DISCUSSIONS a.
Religion and Human Rights UN (United Nations) states that religion is a personal attribute equal to race, ethnicity, and gender.
It is seen as a natural RI (Naskah Konferensi Mahkamah konstitusi Dan Pemajuan Hak Konstitusional Warga) (Jakarta: Pustaka Masyarakat Setara, 2013), 164.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 192 | RS State Role in Balancing Harmony in a Diversed Society... phenolmenon that can lead to a discrimination as it recognizes religion as right and freedom.6 The definition of religion, according to the High Court of Australia is a complex of beliefs and practices which point to a set of values and an understanding of the meaning of existence.7 Another definition of religion is based on the decision of the United States Supreme Court between Davis VS. Beason, 133.U.S., 333, 342, 10 S.Ct 229, 33 L. ED.637 (1890).8 It states that religion is: whether a given that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.
Where such beliefs have parallel positions in the lives of their respective holders we cannot say at one is in relation to the Supreme Being and the other is not.
Freedom of religion is a fundamental right included in 16 rights that cannot be reduced in any circumstances (not – derogable right).9 The right of religion cannot be taken by anyone (unalienable) because it is determined by the person itself and without coercion and not imposed by others.10 Therefore, in the practices, the state cannot intervene in the citizen's freedom of religion, and the state is obliged to give The guarantee to the citizen to worship without any interference.
The state should also guarantee that there is no discrimination on the person 6 Brice Dickson, ‘The United and the Freedom of Religion, the International and Comparative Law’, (1995) 44 2 Cambridge University Press on behalf of the British Institute of International and Comparative Law Stable, Quarterly, 327-357.
7 Rebbeca Wilson and Mary R Power, Conflict Resolution Styles Among Australian Christian and Moslem, (Bond University: Humanity and Social Science Papers, 2004), 60.
8 Frank S. Ravitch, Law and Religion A.
Reader: Cases, Concept, and Theory, the American Case Book Series, (Second Edition, 2008), 580. or group of people that are committed in the name of religion.11 Indonesia, despite being the world’s most populous Muslim-majority country, has since independence pursued a non-setarian state and a non-sectarian national identity.12 Although the majority population of Indonesia is Muslim Indonesia is not a religious state, as a religious state only based on one particular religion that is clearly regulated in the constitution.
There is no paragraph in the 1945 Indonesian Constitution, which states that Indonesia is a religious state or Islam is the only official religion of the state.
However, Indonesia is not a secular state because a secular state does not involve in the religion affairs embraced by the people at all, and hands over the issue of religion on the individual.
Indonesia is based on Pancasila, so Indonesia cannot be called as a secular state.
A state based on Pancasila is a religious nation protecting and facilitating the development of all religions embraced by the people without exception, so that the state has a constitutional obligation/judicial review to protect the freedom of religion for every citizen.
With regard to human rights, the Constitutional Court argues that freedom of religion is not a value-free freedom and freedom solely but rather a freedom that is accompanied by the social responsibility to realize human rights for everyone 9 Paris Minimum Standards of 1984.
10 Michael W. McConnel, John H. Garvey and Thomas C. Berg, Religion and the Constitution, 2nd Edition,( New York: Aspen Publishers, 2006), 49.
11 Article 4 paragraph (1) of the Declaration on the elimination of all forms of intolerance and of discrimination based on religion or belief 1981.
12 Kevin W. Fogg, ‘Islam in Indonesia’s Foreign Policy 1945-1949’ (2015) 53 2 Al-Jami’ah Journal of Islamic Studies 303-335.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development RS State Role in Balancing Harmony in a Diversed Society... | 193 (Par.3.34.18).
In relation to such freedom of religion, then the state has a role as a counterweight between basic right and obligation to ensure that in the imple-mentation of a person's freedom of religion does not injure the freedom of other religions.
So, the state will realize the goal to achieve a better life (the best life as possible).13 The right and freedom of religion (freedom of belief) are one of the funda-mental rights written in the Universal Declaration of Human Rights (UDHR) 1948, as the highest aspiration of the common people, in addition to the freedom of speech, freedom from fear, freedom from want.
This shows that the freedom of religion is the most fundamental right in the life of the world community.
The right and freedom of religion later is mentioned in the provision of Article 18 of the UDHR that states: Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.
Freedom of religion is also regulated in Article 18 of the International Covenant on Civil and Political Rights (ICCPR): Everyone shall the right to freedom of thought, conscience, and religion.
This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching.
Article 18 of UDHR and ICCPR implies that everyone has the right to 13 Putusan Mahkamah konstitusi No.
140/PUUVii/2009, Par.
6.2:321-322.
14 Javier Martinez-Torron, ‘The (UN) Protection of Individual Religious Identity in the Strasbourg freedom of religion including 1.
Freedom for each person to hold or accept a religion or belief of his/her choice, as well as change the religion and belief chosen.
This is an internal freedom or called as forum internum14.
Article 18 paragraph (2) of the ICCPR mentions that no one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.
It means that in the forum internum there should not be any coercion in any form that may damage or interfere with the freedom to have or adopt the religion and belief chosen.
2.
Freedom to manifest religion or belief in teaching, practice, worship and obey it, either alone or with others and in public or alone.
This freedom is external freedom or called as forum externum.15 Article 18 paragraph (3) of the ICCPR mentions that the freedom to manifest one's religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others.
It means that the restrictions can be carried out in connection with the forum externum based on law (legislation) on the basis of consideration of the interests of public safety, order, health or morals or the right and freedom of other people.
Therefore, forum internum relates to freedom to embrace belief, faith or aqidah that cannot be interfered by anyone, while the forum externum is about freedom to implement the religion or worship in which the implementation shall be regulated by the state based on the consideration of public safety protection, order, health, moral or right Case Law’, (2012) 1 2 the Oxford Journal of Law and Religion, 4.
15 Ibid.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 194 | RS State Role in Balancing Harmony in a Diversed Society... and freedom of other people.16 Taylor17 said that forum internum is a personal area of an internal person rights where the state could not interfere in these rights in any occasion.
Refer to general comment number 22 of United Nation on Human Rights Committee (HRC) Article 18 (Forty-eighth session, 1993), par.
2, it is mentioned that the provisions of Article 18 of ICCPR include the protection of: Theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.
The terms "belief" and "religion" are to be broadly construed.
Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.
The Committee therefore views with concern any tendency to discriminate again any religion or belief for any reason, including the fact that they are newly established, or representation on the part of a predominant religious community.
Therefore, the term "religion" and "belief" include a broad understanding and not just limited to theistic, non-theistic and atheistic beliefs such as animism, dynamism, or paganism, and atheist.
The right not to embrace the religion or belief is not only about traditional religion and belief, but also the newly established religion or belief or represent minority's religious that may be the subject of hostility from the believers of the dominant religion.
The protection of right of worship in Indonesia is regulated in Article 28E para16 Aidul Fitriciada Azhari, Partikulasi Dalam Putusan MK RI Tentang Kebebsan Beragama in Dri Utari Christina dan Ismail Hasani (Ed) Masa Depan Mahkamah Konstitusi RI (Naskah Konferensi Mahkamah Konstitusi dan Pemajuan Hak Konstitusional Warga) (Jakarta: Pustaka Masyarakat Setara, 2013), 98.
17 Taylor Paul M, Freedom of Religion, UN and European Human Rights Law and Practice, graph (1 and 2) of the 1945 Indonesian Constitution, which regulates that (1) everyone is free to embrace the religion and worship according to his/her religion, choose education and teaching, choose a job, choose citizenship, choose residence in the territory of the state and leave it, and return.
(2) Every person is entitled to the freedom to embrace a belief, stating what is in mind and act in accordance with his/her conscience.
Then, this article is emphasized again in Article 29 paragraph (2) of the 1945 Indonesian Constitution, which stipulates that the state guarantees freedom of each citizen to embrace the religion and to worship according to the religion and belief.
Article 28E paragraph (1) and Article 29 paragraph (2) show a genuine commitment from the Indonesian Government to protect the right of Indonesian people in terms of religion.
However, this does not guarantee that the regulation and implementation of religion matter in Indonesia have been going well.
The annual report of the international commission on freedom of religion was issued by the US.
Commission on International Religious Freedom of 2013.
The commission, in its report, stated:18 Indonesia is a stable and robust democracy with political institutions able to advance and protect human rights.
In recent years, however, the country's tradition of religious tolerance and pluralism have been strained by ongoing sectarian tensions, societal violence, and the arrest of individuals considered religiously "deviant".
While the government (Cambridge: Cambridge University Press, 2005), 115.
18 Annual Report of the United State Commission on International Religious Freedom for 2013, United State Department of state, http://www.uscirf.gov/images/2013%20USCIRF %20Annual%20%282%29.pdf.
Accessed 27 Desember 2017. http://www.uscirf.gov/images/2013%20USCIRF%20Annual%20%282%29.pdf http://www.uscirf.gov/images/2013%20USCIRF%20Annual%20%282%29.pdf Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development RS State Role in Balancing Harmony in a Diversed Society... | 195 has addressed past sectarian violence and effectively curtailed terrorist networks, religious minorities continue to experience intimidation, discrimination, and violence.
The Indonesian government, including the local police, provincial officials and, the courts, often tolerate the activities of extremist groups, fails to enforce national laws protecting religious minorities, and issues lenient sentences to individuals arrested for engaging in violence.
In addition, national laws and provincial decrees have led to serious abuse of the freedom of thought, conscience, and religion or belief, including destruction or forced closure of religious venues and imprisonment of individuals accused of blasphemy or "deviant" "religious teachings".
Based on the report of the commission, Indonesian Government often tolerates the action of extreme groups and fails to enforce the law to protect the minority groups.
The government also fails to provide guarantees and fulfillment of the constitutional rights of minority religious groups and often tolerates if any discriminatory action on the minority religion group happens.19 b.
Regulation of Religion in Laws and Legislation Human Rights as one of the material content of constitutionally indicates two meanings of protection guaranteed by the constitution itself.
First, in ruling the state, the authority is restricted by the rights of a citizen.
Second, there is a guarantee of strong protection in the state basic law (constitution), so that the citizens can make the constitution as an instrument to remind the authority to not violate Human Rights 19 Brice Diskson, above n. 6, 164.
20 Sri Hastuti PS, ‘Perlindungan HAM Dalam Empat Konstitusi di Indonesia’, (2005) 1 1 Jurnal Magister Hukum, 11-12. that have been listed in the constitution in exercising the power.20 Mahfud MD said that in the violation of Human Rights, it does not only performed blatantly by violating the law, but it also performed legally through the formality procedure because the Legislature on violation of Human Rights has been made first to justify it.21 This is what happens with the enactment of Act Number 50 Year 2009 on Religious Judicature, Article 1 paragraph (1) that clearly stipulates that religious judicature is a justice for the Muslim.
Furthermore, in Article 49, it stipulates that the religious court has a duty and authority to examine, decide, and resolve matters at the first level among Muslims in the field of marriage, inheritance, will, grant, waqaf, zakat, infaq, sadaqah and Islamic economics.
The Article 1 letter b of Act Number 1 Year 1974 on Marriage also related.
That firmly set that what is meant by the court is a Religious Court for them who are Muslim and District Court for others.
Therefore, it proves that the government has discriminated the regulation of the religion of all Indonesian people in a structured and assertive manner.
Indeed, it proves that the government fails to provide security to the believer of the minority religion to worship, including formulating a discriminatory policy as well as the politicization of religion for certain interests.
The fact it has been regulated firmly that the right of religion is a fundamental right and things that are associated with the implementation of religious activities is the duty of government to ensure the implementation.
21 Mahfud MD., Politik Hukum di Indonesia (Jakarta: LP3ES, 1998), 158.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 196 | RS State Role in Balancing Harmony in a Diversed Society...
The protection of fundamental rights becomes important to be underlined in any state of law (democracy) that put the constitution as the supreme law in the state concerned.
When the fundamental rights are included in the constitution, it becomes the part of the constitution, and then it binds all branches of state authorities.22 The letter a of Act Number 48 Year 2009 on Judicial Power clearly regulates that the judicial power, according to the 1945 Indonesian Constitution is an independent power performed by a Supreme Court and judicial institutions under it in the general court, religious court, military court, state administrative court, and Constitutional Court organize the judiciary to enforce law and justice.
The contents of the article clearly refer to religious judicature.
So, it should cover and protect all religions embraced by Indonesian people, without seeing the majority or minority.
It is important so that any discrimination regarding religious court that is only for Muslim will not happen.
It can be seen from the first, Act Number 50 Year 2009 on the Religious Judicature in Article 1 paragraph (1), which explicitly regulates that religious court is only for Muslims.
Second, Article 1 letter b of Act Number 1 Year 1974 on Marriage, explains that the religious court only for them who are Muslim and District Court for the others.
Third, Article 2 of Government Regulation Number 9 Year 1975 on Implementation of Act Number 1 Year 1974 on Marriage, the Marriage Registration Office is for those who hold marriage based on Islam and Population and Civil 22 Duga Das Basu, Human Right in Constitutional Law (New Delhi-Nagpur-Agra: Wadhwa and Company, 2003), 107.
23 Aidul Fitriciada Azhari, ‘The Essential of the 1onstitution and the Agreement of the 1945 Constitution: A Comparison of the Constitutional Registration Agency is for non-Muslims who hold marriage.
Fourth, divorce can only be done through the court (Article 39 of Act Number 1 of 1974).
Fifth, Marriage for Indonesian Citizens (WNI) who are not Muslim is subject to article 2 of Act Number 1 Year 1974.
Those regulations are contradictive with: 1) Article 27 paragraph (1) of the 1945 Indonesian Constitution regulating that all of the citizens of the state are equal before the law and government, is obliged to uphold the law and government with no exception.
2) Article 28E paragraph (1) of the 1945 Indonesian Constitution regulates that everyone free to embrace religion and worship based on the religion.
3) Article 29 paragraph (2) of the 1945 Indonesian Constitution clearly regulates that the state guarantees the freedom of each person to embrace the religion and to worship based on the religion and belief.
Article 29 of the 1945 Indonesian Constitution, according to Aidul23 is viewed by the state founders as the essence of the 1945 Indonesian Constitution that shall not be amended even if 1945 Indonesian Constitution is amended.
c. Efforts to Prevent Discrimination on Regulation of Religion The supremacy of the constitution requires consistency and harmonization in the formation and preparation of legislation and state policies by putting the 1945 Indonesian Constitution as the supreme law.
Maruar Siahaan24 said that these include institutional forms assigned to enforce the principle of constitution supremacy and how the mechanisms of it.
Amendment’, (2016) 18 3 Jurnal Hukum Ius Quia Iustum, 306.
24 Maruar Siahaan, ‘Uji Konstitusionalitas Peraturan Perundang-Undangan Negara Kita; Masalah dan Tantangan’, (2010) 7 4 Jurnal Konstitusi, 10.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development RS State Role in Balancing Harmony in a Diversed Society... | 197 Dwiyana25 said that in the perspective of the rule of law in Indonesia, the functions of state shall protect each religion and the believer by ensuring the implementation of worship, providing support facilities and maintaining inter-religious harmony, including laws and regulations both private and public.
Hans Kelsen26 introduced the theory of legal norm hierarchy (Stufentheorie), where the norms of law are tiered and layered in a hierarchy, while the lower norm is applicable, sourced and based on the higher norms.
When the higher norm is applicable, it is sourced and based on the much higher norm, and so on until the highest norm called as the fundamental norm (Groundnorm).
Based on this theory, the regulations in Article 1 letter b of Act Number 1 Year 1974 on Marriage, Article 1, paragraph (1) and Article 49 of the Act Number 50 Year 2009 on Religious Judicature should not be contrary to Article 27 paragraph (1), Article 28E paragraph (1) and Article 29 paragraph (2) of the 1945 Indonesian Constitution.
The discriminatory regulation in law can be categorized as a human rights violation, a failure to provide the rights of communities apart from the Muslims to obtain the same treatment.
In connection with that matter, Donelly27 said that the violation of the individual rights is not only limited to the violation of the law for the victims, but also a failure in providing their rights and enforcing the rights that are deemed to be legally correct.
The regulation in Article 1 letter b of Act Number 1 Year 1974 on Marriage, 25 Dwiyana Achmad Hartanto, ‘Kontribusi Hukum Islam Dalam Pembaharuan Hukum Pidanan Di Indonesia (Studi Pidana Cambuk di Nanggroe Aceh Darussalam)’, (2016) 1 2 Jurnal Al-Ahkam, 1.
26 Hans Kelsen, General Theory of Law and State, (New York: Russell & Russell, 1945), 112-113.
Article 1 paragraph (1) and Article 49 of Act Number 50 Year 2009 on Religious Judicature prove that the government fails to provide equal rights for other citizens other than Muslims.
The government only makes the Religious Court as a judicial institution for Muslims.
The religious court should be applied to all Indonesian citizens without distinction of religion.
There should be any room/section for each religion in Religious Court.
One religious judicature institution that has six rooms or section where each religion has one place, will eliminate the discriminatory regulation to the Indonesia that has six official religions.
This can be performed by amending the contents of Article 1 part b of Act Number 1 Year 1974 on Marriage, Article 1 paragraph (1) and Article 49 of Act Number 50 Year 2009 on Religious Judicature, without having to amend the 1945 Indonesian Constitution.
IV.
CONCLUSIONS AND SUGGESTIONS The 1945 Indonesian Constitution has already stated that all citizens are equal before the law and government and must uphold the law and government with no exception.
This ideal regulation should be followed by the Act Number 1 Year 1974 on Marriage and Act Number 50 Year 2009 on the Religious Judicature with no specialized religious courts that is only for Muslims.
Ideally, a religious judicature covers the six official religions recognized by the state, by making a room or section for each religion.
Therefore, the regulation will eliminate the discriminatory settings for an27 Donelly Jack, ‘Human Rights and Human Dignity: an Analysis Critique of Non-Western Conceptions of Human rights’, (1982) 76 2 The American Political Science Review, 304.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 198 | RS State Role in Balancing Harmony in a Diversed Society... Muslim citizens and can be implemented without having to amend the 1945 Indonesian Constitution, because Article 27 paragraph (1), Article 28E paragraph (1) and Article 29 paragraph (2) of the 1945 Indonesian Constitution have already regulated the citizen rights in terms of religion ideally.
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Journal Articles Azhari, Aidul Fitriciada ‘The Essential of the 1onstitution and the Agreement of the 1945 Constitution: A Comparison of the Constitutional Amendment’, (2011) 18 3 Jurnal Hukum 305-319 Dickson, Brice, ‘The United and Freedom of Religion’, (1995) 44 2 the International and Comparative Law Quarterly, 327-357.
Hartanto, Dwiyana Achmad, ‘Kontribusi Hukum Islam Dalam Pembaharuan Hukum Pidana Di Indonesia (Studi Pidana Cambuk Di Nanggroe Aceh Darussalam)’, (2016) 1 2 Jurnal AlAhkam, 171-192 Jack, Donelly, ‘Human Rights and human Dignity: an Analysis, Critique of NonWestern Conceptions of Human Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development RS State Role in Balancing Harmony in a Diversed Society... | 199 rights’, (1982) 76 2 The American political Science Review, 312-13.
Fogg, Kevin W. ‘Islam in Indonesia’s Foreign Policy 1945-1949’, (2015) 53 2 Al-Jami’ah Journal of Islamic Studies, 303-335 Martinez Torron, Javier ‘The (UN) Protection of Individual Religious Identity in the Strasbourg Case Law’, (2012) Oxford Journal of Law and Religion, 363-385 PS, Sri Hastuti, ’Perlindungan HAM Dalam Empat Konstitusi Di Indonesia’, (2005) 1 1 Jurnal Magister Hukum Siahaan, Maruar, ‘Uji Konstitusionalitas Peraturan Perundang-Undangan Negara Kita; Masalah Dan Tantangan’, (2010) 7 4 Jurnal Konstitusi, 009-048.
Thesis/ Disertation RS, Iza Rumesten, Makna Keragaman Daerah Dalam Pola Hubungan Hukum antara Pemerintah Pusat dan Daerah pada Negara Kesatuan Republik Indonesia, Disertasi, Fakultas Hukum Universitas Brawijaya, 2016.
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200 | DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.04 Recent development of Civil Procedural Law in Thailand: the Class Action and the Legal Execution Pornchai Wisuttisak1 1Chiang Mai University Email: pornchai.w@cmu.ac.th Submitted : 2018-06-30 | Accepted : 2018-10-24 Abstract Abstract: The paper aims to study on the overview of civil procedural law in Thailand with emphasis on the recent amendment regarding to class action and legal execution.
The civil procedural law in Thailand, known as Procedural Use of Civil and Commercial Codes Act 1937 was passed in 1938 as to formulate the trail, execution of judgment, and appeal in civil and commercial codes.
The civil procedural law in Thailand became a vital legal rules governing a proper civil trial and judgments.
This Thailand Civil Procedural Law was recently amended on the provisions of class action and the efficiency of the legal execution.
It is argued that such amandment create vital impact to legal practices on civil procedurals in Thailand.
The amendment helps to modernize the rules for class action and facilitates the process on legal execution in Thailand.
Adopting juridical normative method with statute approach, this paper submitted that civil procedural law should be amended throughfuly and not only partialy to keep up with the rapid changes on civil and commercial cases.
To achieve this, more amandments of Procedural Use of Civil and Commercial Codes Act 1937 need to be done.
Keywords: civil procedural law, Thailand, legal execution, class action, civil and commercial codes I.
INTRODUCTION The Thai Civil Procedural Law is based on the Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) (hereinafter Civil Procedural Act).1 The Act lays down procedural rules for applying Thai Civil and Commercial Codes 1924 (BE 2466).2 Thus, in deciding any civil and commercial cases, Thai court judges have to consider both the civil procedural law and the 1 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) civil and commercial codes.
The Thai Civil Procedural Act contains civil procedural rules in 4 main Chapters.
The first Chapter is a general rules on civil procedure.
The second chapter lays down the rules on process of deciding cases under court of first instance.
The third chapter states legal rules on the Appellate court decision and the Supreme Court decision.
The fourth chapter set out legal rules regard to specific methods 2 Major revision in 1992 and there were many minor revision up to 2017 mailto:pornchai.w@cmu.ac.th Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wisuttisak Recent development of Civil Procedural Law in Thailand… | 201 prior to the legal execution after court decision.
In order to address rapid changes.
Especially changes in modern technology such as transformations on digital economy, e-business practices and e-contractual arrangements, it is submitted that the Thai Procedural Law needs to be adjusted.
The adjustment of the law was done by the amandment of the laws, especially on the provisions regarding class action and legal execution.
It is argued that .
The amendment helps to modernize the rules for class action and facilitates the process on legal execution in Thailand.
This paper aims to analyse the amandment of Thai Procedural Law with emphasis on the recent amendment regarding to class action and legal execution.
This paper proceed with the overview of Thailand Civil Procedural Law and followed by the analyses of its amandment whether such amandment are sufficient enough to address rapid development of technology.
II.
LEGAL MATERIALS AND METHODS This paper uses normative juridical methodology, which based on primary aterials that is Thailand laws, especially on civil procedure.
Secondary materials were also used in this research, which include books, academic journal and other academic resources.
Internet resoures is also important in this research since the revision took place relatively recently.
The primary materials mention previously include Procedural Use of Civil and Commercial Codes Act 1937 and its revision, which was done in 2017.
3 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 1-169 III.
RESULTS AND DISCUSSIONS The Framework of Procedural Use of Civil and Commercial Codes Act 1937 In this section, the framework of Procedural Use of Civil and Commercial Codes Act 1937 will be firstly elaborated.
It is a very comprehensive legal framework setiing out the civil procedural Acts and commercial codes.
It consists of four main chapters and several appendixes which include appendix relates to court fees, fee for investigation to witness outside court room, fee all necessary cost for the court process, and fee for the legal execution.
Each of the chapter will be elaborated briefly in this section.
In the first chapter3, there are rules regarding to general legal definition, court jurisdiction, objection to judge who decide the case, panels of the judges, and report with case detail.
The first chapter also contains legal right of persons in civil cases, filing case, proofs and evidence, and court decision and order.
Thus, the first chapter tends to contains most of the vital rules governing civil case in the court.
In the context of the court jurisdiction, the case usually be sued in the court of justice which deals with civil commercial and civil case.
In Thailand, there are three main courts; the Courts of Justice, Administrative courts, and the Military Court.
The Courts of justice is the designated court which hear dispute and cases on civil and commercial codes.
In additional, in the first chapter section 55, any person or juristic person according to the Thai Civil and Codes have his/her right to pursue legal cases in the Court of justice.
Two persons or more are able to jointly request court to consider case, if the persons would have benefit from the cases result.4 4 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 59 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 202 | Wisuttisak Recent development of Civil Procedural Law in Thailand… Judges in deciding any case will have to consider reliable evidences which are documents and/or person witness.
However, judges may not consider the evidence in case there are general truths or the facts on which both disputing parties have already accepted.
Picture 1: Court of Justice Thailand5 In the second chapter6, there are procedural rules of court of first instance.
The judge in the court of first instance, when considering any case, must strictly apply the second chapter in civil and commercial cases.
The judges have to apply legal rules of normal civil procedures in court of first instance and in some cases have to apply special civil procedures.
The special civil procedures relate to legal 5 Court of Justice Thailand, 2017, Structure of Courts of Justice, < http://www.coj.go.th/en/cojstructure.html> procedures of petty cases.
The chapter also state rules on the process of deciding case without defendants in case that the defendants do not attend the court procedure.
When person would like to sue civil and commercial case to the court, the person initiate his/her case in court of first instance.7 The plaintiff will have to prepare clear legal document and submit the 6 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 170-222 7 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 170 http://www.coj.go.th/en/cojstructure.html Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wisuttisak Recent development of Civil Procedural Law in Thailand… | 203 documents to the court of first instance.8 After receive a case request from the plaintiff, court will issue a copy of the case to defendant within 7 days.9 During the case process, the plaintiff is prohibited to submit multiple but same case to the court.
The plaintiff is entitled to request to the court to remove the case from the case procedure.10 The third Chapter set out the procedural rules for appealing case to the Court of Appeal and to the Supreme Court.
After the decision from the court of first instance, the plaintiff or defendant are permitted to submit the decision to the appeal court.11 However, if the case involve financial dispute less than ThB 50,000, the appeal on the cases must be not be on the fact of the case, except the incident that one judge of the panel in the court of first instance have noted on the unclear fact of the case.12 If there is an appeal regarding to the fact of the case, the appeal on the fact must be of significant to the case.13 In case any person intend to submit the appeal to the court of appeal, the appeal must be within 1 month after the court of first instant has decided the case.14 The appeal do not constitute a release to the execution of decision from the court of first instance.15 Nevertheless, the person who appeal the case is able to submit to the court of appeal to give injunction order to the execution of decision from the court of first instance.16 The court of appeal after consider all 8 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 175 9 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 173 10 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 175-176 11 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 223 12 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 224 13 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 225 documents submited from both legal parties will be able to decide the appeal case by the way of “(i) if the appeal court considers that the appeal is prohibited by procedural rules, the court may dismiss the appeal, (ii) if the court of appeal considers that the decision from the court of first instance is correct, the court of appeal may upheld the decision from the court of the first instance, (iii) if the court of appeal disagrees with the decision from the court of first instance, the court of appeal may make a new decision for the case, (iv) if the court of appeal considers the decision from the court of first instance is partly correct, the court of appeal may partly upheld the case and provides additional decision as to correct the previous decision.”17 In an event that the party does not agree with the decision from the court of appeal, the party may apply to the Supreme Court within 1 month from the Court of appeal’s decision.
The party must request for an approval to appeal case from the Supreme Court by submitting the appeal.18 If the Supreme Court approve the appeal, the court must decides the case as soon as possible.
The Supreme Court may approve the appeal of the case by consideration on “(i) the issue of the case relates to public benefit, (ii) the decision from the court of appeal conflicts with precedency of the previous Supreme Court decisions, (iii) the decision from the court of appeal has no 14 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 229 15 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 231 16 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 231 17 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 242 18 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 247 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 204 | Wisuttisak Recent development of Civil Procedural Law in Thailand… precedent decision from the Supreme Court decision, (iv) the decision from the court of appeal conflicts with other court decisions, (v) the aims to develop the interpretation of laws and (vi) important problems set by the President of the Supreme court”19 The fourth Chapter envisages rules regarding to specific methods prior to the legal execution after court decision.
By the rules, the court has power to make execution of the court decision and has power to decide any method for execution set out by laws.20 If there is a court decision, court must execute the decision at the time that the decision has been made and that the party who loses the case become the debtor according to the court decision.21 If the court decision obligates the debtor to pay an amount of money or to give properties or to stop any actions, the decision must set out clear execution and clear timeframe to be complied by the decision.22 In case that the decision is on the petty case, court may not set out timeframe to act according to the decision.
But the debtor in the petty case must comply with the court decision within 15 days after the decision.23 If party who lose the case does not act according to the court decision, the win party may request the court to legally seize property or freeze property as to pay the win party according to the court decision.24 The department of the legal execution under Ministry of Justice will have to enforce their power as to obligate the debtor to pay or to act according to court 19 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 249 20 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 271 21 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 272 22 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 273 23 Ibid decision.25 The officer of the department of the legal execution will have power when the debtee requests debtor to pay or to act according to court decision.26 The officer of the department of the legal execution must collect money or control properties with due care in order to transfer them to the debtee according to court decision.27 In addition to the four main chapters, Thai Civil Procedural Act sets out appendix tables which relate to court fees, fee for investigation to witness outside court room, fee all necessary cost for the court process, and fee for the legal execution.
Thus, based on the four main chapters and the appendix tables, Thai Civil Procedural Act is very comprehensive legal rules for processing case on civil and commercial disputes in the court.
Recent development of Thai Civil Procedural Law As the first part of the paper provides overview of legal frameworks of the civil procedural law, this second part of the paper aims to discuss on the recent development of the civil procedural law relating to; 1) the revision for the class Action and 2) the revision to create efficiency of the legal execution.
Revision for the Class Action The Thai Civil Procedural Act was amended in 2015 as to significantly create a procedural rules for Class Action.
The amendment is to permit class action legal 24 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 274 25 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 274; See information about the legal execution department at <http://www.led.go.th/default.asp> 26 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 278 27 Ibid http://www.led.go.th/default.asp Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wisuttisak Recent development of Civil Procedural Law in Thailand… | 205 proceedings in Thailand.
The amendment is to fill legal gap in civil procedures that did not recognize class action lawsuits in legal proceedings.
Thus the amendment marks a vital development in the Thai court system.28 The amendment to the legislation was to develop Thai legal procedure of class actions similar to jurisdictions such as the United States but there are some different in context of Thai law.29 The amendment to the Civil Procedural Act is mainly on section 222 that set out rules for class action.
The amendment on section 222 defines people groups for legal procedure as a people who shares legal right, based on same fact and law.
In order to proceed any legal action under a class action, there must be an approval from the court.30 In requesting the court to approval any class action in court procedure, the case must be that the group of people has common legal ground on “tort, breach of contract and legal right to claim any damages from environmental law, labor protection law, security law, and competition law”31 The groups of people to proceed any legal action to the court must conjointly submit to the court that they would like to pursue the court case under class action procedure.32 If the court approve the class action of the group, the court may ask the group to pay assurance fee within 7 days.
In case that there is no payment of the assurance fee, the court may disapprove the class action.33 28 Tilleke & Gibbins, 2015, “Class Action Legal Proceedings Now Available in Thailand”, <http://www.tilleke.com/resources/class-actionlegal-proceedings-now-available-thailand> 29 Ibid 30 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/1 31 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/8 32 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/9 The members of the class action are able to opt-out the group by giving written notice to the court within 45 days of case proceeding.34 The person who have given written notice to the court to opt-out the class action group will not be able to return to the group of class action.35 Additionally, the person who leave the class action group will not be able to pursue legal case on the same legal ground of the class action.36 Once court make a case decision, the plaintiff may only appeal as a group of class action and the individuals do not have appeal rights.37 The examples of the class action allow in the amendment of the Thai Civil procedure are on the case that there are significant damages or injuries to general public and people.
The damaged and injured people may collectively claim to the court by the class action as to demand compensation for their damages or injuries.
Another example is where there are breaches of contracts by company limited or public companies, listed in Thai Stock exchanges, the consumers who suffered from the breach are able to collectively resort to class action as a legal procedure to demand compensation from the breach.
According to Ratanachaichan, the initial plan to amend the Civil Procedural Act on the class action was initiated by the Stock Exchange Commission.
The objective of the amendment is to protect wide investors and consumers in the Thai 33 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/14 34 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/15(6) 35 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/16 36 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/18 37 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 222/45 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 206 | Wisuttisak Recent development of Civil Procedural Law in Thailand… Stock Exchange from the fraudulent public company.38 The benefits to the class action in the Thai Civil Procedural act are the lower cost of proceedings, the efficiency in facilitating justice to a larger group of the society, the protection to the interests of the less privileged in society and parties suffering from minor damages by providing a means of securing compensation.39 Thus, the amendment of the Thai Civil Procedural Act is boon to create better legal procedural rules as to develop protection of wide public interests.
Revision to create efficiency of the legal execution Chapter four of the Thai Civil Procedural Act was amended in July 2017.
The main aim of the amendment is to create effective legal execution of the court decision.
The amendment to the Thai Civil Procedural Act was amended on the section 271-367 relating to authoritative power of the officer in legal execution40 and properties which are not under legal executionThe important is that there is no legal execution to the debtor salary less than ThB 20,000 41 Other legal execution include seize of property after the court decision,42 freeze of property right after the court decision,43 request for property distribution,44 sell of the property under legal execution,45 establishment of 38 Ratanachaichan, C. 2013, A Primer on the Draft Law on Class Action, < https://www.aseanlawassociation.org/9GAdocs/ Thailand.pdf> 39 Ibid 40 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 297 41 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 301 42 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 303 43 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 316 management on property instead of sell of the property46 and execution by ejectment47 The above lists are only some example of major revision on the Thai Civil Procedural Act in 2017.
There are complex and numerous details of amendments.
The paper aims not to include all details of the revision but to presents that the amendment will create effectiveness for legal execution according to the court decision.
Before the amendment in 2017, there were complaints about process of legal execution which is very slow and difficult.
The amendment clarifies and fastens process of legal execution, so the execution will be more effective.
Picture 2: Legal Execution Process48 According to Ruamridee, the director of the department of legal execution, the new revision on the Thai Civil Procedural Act on legal execution can lead to overall development of the legal execution process 44 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 326 45 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 331 46 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 336 47 Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) section 350 48 Thairath News,<https://www.thairath.co.th/ content/831209>, and Office of legal execution, Skornankorn province, <http://sub.led.go.th/ sawangdandin/index.php/all-infomation/5-201307-25-03-25-14.html> https://www.google.co.th/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiV0p2qm-nXAhUHuI8KHdyUAAsQFgglMAA&url=https%3A%2F%2Fwww.aseanlawassociation.org%2F9GAdocs%2FThailand.pdf&usg=AOvVaw0XQ561yM3yVPS5_p_S40AB https://www.google.co.th/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiV0p2qm-nXAhUHuI8KHdyUAAsQFgglMAA&url=https%3A%2F%2Fwww.aseanlawassociation.org%2F9GAdocs%2FThailand.pdf&usg=AOvVaw0XQ561yM3yVPS5_p_S40AB Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wisuttisak Recent development of Civil Procedural Law in Thailand… | 207 in Thailand.49 The revision creates effective by 1)clarification of methods to execution of properties, 2) increase power of officer conducting legal execution, 3) remove all unnecessary process of legal execution, and 4) improvement of sell of properties under legal execution.
Thus, in over all the amendment build up an efficient process for legal execution according to court decision.
IV.
CONCLUSIONS AND SUGGESTIONS The first part of the paper present the general frameworks of Thai legal procedure base on the Thai Civil Procedure Act.
The Act was passed on 1938 and has various amendments up until 2017.
The Act seems to be comprehensive and helps facilitate the legal procedure linking to trails procedure, court decision and legal execution of cases on civil and commercial codes.
Lawyers, legal practitioners, and legal academics are able to follow the fundamental legal procedure of the Thai Civil Procedure Act.
Thus, in overall, the Thai Civil Procedure Act formulate civil procedural to create high standard of legal procedure in Thailand.
The second part of the paper then focuses on the recent amendment which create a major changes to Thai civil procedure.
The changes are on the inclusion of class action in Thai Civil procedure and the transformation of legal prosecution toward effective process.
The inclusion of class action benefits public and consumers in case they collectively pursue court case with corporates.
The transformation of sections of the Thai Civil Procedure on legal execution helps fasten and clarify process of legal prosecution to all public.
Thus the recent major changes show that at least Thailand has it interest to build up better 49 Ruamridee, S, 2017, “Department of Legal Execution clarify on the new amendment”, Thai standard of civil procedure.
The development make sure that the civil procedure show a bright side of modernization of law in Thailand.
With regards to the new class action procedure, consumers would be able to collectively act against the unfair corporates and cooperatively protect them from unfair business practices.
The change elevates a legal obstructions for consumers who have less financial and legal power in Thailand’s justice system.
With regards to the new legal prosecution, the legal officers and people would have faster process of obtaining their legal rights after a court decision.
The changes also increase awareness to people who face severe financial difficulty.
The change at least gives people a chance to financially survive and to financially revive back again.
Nevertheless, the manner of amendments on the Thai Civil Procedure tends to base on the fixing on legal issues only case by case basis.
Since the enactment of Thai Civil Procedure in 1938, it has been 30 amendments to the act.
Each of amendments tends to focus on the legal issue keeping up with business economic and social changes.
With the consideration that the Thai Civil procedures should be an efficient legal mechanism to facilitate all necessary legal procedure, the paper suggest that there should be an overhaul amendments to the act and to create better formation of the Thai civil procedure.
Therefore, it should be a set policy for modernization on Thai civil procedure law in order to keep up with various rapid transformations on digital economy, ebusiness practices and e-contractual arrangements in Thailand.
Ministry of Justice News on19 July 2017, < http://www.moj.go.th/view/9991> http://www.moj.go.th/view/9991 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 208 | Wisuttisak Recent development of Civil Procedural Law in Thailand… REFERENCES Books Office of the State of Thailand, Comparison on Old and New Civil Procedural Rules (2017) <http://web.krisdika.go.th/data/outsit edata/outsite4/file/31-8-60.pdf> Ratanachaichan, C. A Primer on the Draft Law on Class Action, (20130) < https://www.aseanlawassociation.org/ 9GAdocs/Thailand.pdf> Sonvoravongsa, K., Class action for Initial Public Offering of Securities (Durakij Bundit University, 1999) Sukothaithammatirat, Civil law 1 (Thailand, 2014) Tilleke & Gibbins, Class Action Legal Proceedings Now Available in Thailand (2015) <http://www.tilleke.com/resources/cl ass-action-legal-proceedings-nowavailable-thailand> Wayupap, P., Explanation Legal Procedural Rules in Consumer Cases (Krung Siam Publishing, Bangkok, 2016) Wayupap, P., Legal Procedural Rules (Legal Book publishing, Bangkok, 2008) Journal Articles Pichiansoontorn, Y., ‘Class Action in Competition Law: The Problems of Counsels for Plaintiff’ (2018) 7 1 Thammasat Business Law Journal Internet Materials Piriyapanyaporn, C., 2018, Thailand Legal Update: Incoming Class Action Law – Section 222/8 of the Civil Procedure Code, <https://www.dfdl.com/resources/leg al-and-tax-updates/thailand-legalupdate-incoming-class-action-law/ > Ruamridee, S, 2017, “Department of Legal Execution clarify on the new amendment”, Thai Ministry of Justice News on19 July 2017, < http://www.moj.go.th/view/9991> Thesis/ Disertation Meeboonsang, N., 2008, Class Action In Environmental Case, Master Thesis, Chula Longkorn University, <http://cuir.car.chula.ac.th/bitstream/ 123456789/859/3/Namtaee.pdf > Act/ Legislation Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) Procedural Use of Civil and Commercial Codes Act 1937 (BE 2477) (Revision in 2017) http://web.krisdika.go.th/data/outsitedata/outsite4/file/31-8-60.pdf http://web.krisdika.go.th/data/outsitedata/outsite4/file/31-8-60.pdf https://www.google.co.th/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiV0p2qm-nXAhUHuI8KHdyUAAsQFgglMAA&url=https%3A%2F%2Fwww.aseanlawassociation.org%2F9GAdocs%2FThailand.pdf&usg=AOvVaw0XQ561yM3yVPS5_p_S40AB https://www.google.co.th/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiV0p2qm-nXAhUHuI8KHdyUAAsQFgglMAA&url=https%3A%2F%2Fwww.aseanlawassociation.org%2F9GAdocs%2FThailand.pdf&usg=AOvVaw0XQ561yM3yVPS5_p_S40AB https://www.aseanlawassociation.org/9GAdocs/Thailand.pdf https://www.aseanlawassociation.org/9GAdocs/Thailand.pdf https://www.dfdl.com/locations/thailand/thailand-advisers/chartchai-piriyapanyaporn https://www.dfdl.com/resources/legal-and-tax-updates/thailand-legal-update-incoming-class-action-law/ https://www.dfdl.com/resources/legal-and-tax-updates/thailand-legal-update-incoming-class-action-law/ https://www.dfdl.com/resources/legal-and-tax-updates/thailand-legal-update-incoming-class-action-law/ http://www.moj.go.th/view/9991 http://cuir.car.chula.ac.th/bitstream/123456789/859/3/Namtaee.pdf http://cuir.car.chula.ac.th/bitstream/123456789/859/3/Namtaee.pdf
50 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.04 Discourse Interpretation of Public Policy in the Context of Enforcement of Foreign Arbitral Awards in Indonesia AAA Nanda Saraswatia Choirul Hidayatb a, bFaculty of Law, Brawijaya University Email: anandasaraswati@ub.ac.id Submitted : 2019-01-03 | Accepted : 2019-02-08 Abstract: The use of the concept of "public policy" by the national judiciary as a basis for the refusal of recognition and enforcement of foreign arbitral awards leaves an issue in the Indonesian judicial system.
The main problem often questioned by the international community is that Indonesia refuses to enforce and even reject foreign arbitral awards on the grounds of violating public policy.
This paper aims to analyze the interpretation of the concept of public policy used by judges as one of the reasons for the refusal of the recognition and enforcement of foreign arbitral awards and whether such interpretation is in accordance with international standards.
The results shows that Indonesian courts tend to use a "domestic" approach when interpreting public policy namely as a provision and principles of law and national interests, rather than the international standard approach.
Such approach have raised a number of critics from other countries.
Not only because it is not in accordance with the values and principles of international law, but the interpretation is considered not to prioritize the purpose of the New York Convention, namely facilitating the recognition and enforcement of foreign arbitral awards.
Keywords: interpretation; public policy; recognition and enforcement; foreign arbitral awards.
I.
INTRODUCTION The main international convention on enforcement arbitral awards is of course the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (hereinafter the 1958 New York 1 Indonesia is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 through accession dated on 7 October 1981 Convention).
More than 150 states are members to the convention, including Indonesia.
1 Related to public policy, the convention states that:2 Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country 2 Convention of the Recognition and Enforcement of Foreign Arbitral Awards, 1958, article V (2) b Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Saraswati Discourse Interpretation of Public Policy in the Context of... | 51 where recognition and enforcement is sought finds that the recognition or enforcement of the award would be contrary to the public policy of that country.” Such article gives the courts of member states the right to refuse the recognition and enforcement of an arbitral award if such enforcement is contrary to the public policy of the state concerned.
Until today, the concept of public policy remains a highly debated, controversial and complex subject since the notion was (intentionally) not defined in the Convention and its concrete manifestations may substantially vary from one state jurisdiction to another.
Although over time, the laws and practice of arbitration have tried to align the public policy concept so that member states may benefit from a universally accepted concept, the difference approaches of national courts has made this task hard if not impossible.
This problem is also being faced by Indonesia.
Despite being a party to the Convention, Indonesia has been accused of being unfriendly to foreign arbitral awards.
This is due to the silence of the meaning or definition of public policy under the Indonesian arbitration law, making it subject to broad interpretations in various cases.
This paper aims to analyze the interpretation of the concept of public policy used by Indonesian judges as one of the reasons for the refusal of the recognition and enforcement of foreign arbitral awards and whether such interpretation is in accordance with international standards.
3 Peter Marzuki, Penelitian Hukum (Prenada Media Group, Jakarta, 2005) 93 II.
LEGAL MATERIALS AND METHODS This paper is based on a normative research, namely the procedure of research based on legal scientific logic from the normative side which is focused on studying the application of the rules or norms in positive law.3 The approach used is the statute, the conceptual and the comparative approach.
The statute approach is carried out by examining various positive legal provisions, especially international conventions and agreements related to international arbitration namely the New York Convention 1958.
This is done to understand the content of the philosophy of the convention so that it can analyze whether there is a philosophical clash between the convention and the issues at hand.
To support the study to be more comprehensive, a conceptual approach is used to study the views and legal doctrines, especially related to the concept of public order.
Whereas a comparative approach is used to compare positive laws and jurisprudence in countries in order to analyze the similarities and differences that exist, to find the direction of regulation at the international level.
III.
RESULTES AND DISCUSSIONS The Concept of Public Policy Public policy is one of the principles that must be considered important, especially in the scope of private international law.
4 This principle is recognized in every legal system, both in common and civil law.
In common law legal system, this principle is commonly known as public policy, while in civil law legal system it is known with the 4 Sudargo Gautama, Hukum Perdata Internasional Indonesia Buku IV (Penerbit Alumni, Bandung, 1989) 3 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 52 | Saraswati Discourse Interpretation of Public Policy in the Context of... term ordre public, one of which in France.
Besides that, there are still many other terms on the principle of public order, such as openbare orde in Dutch, vorbehaltklausel in German, ordine publico in Italian, and orden publico in Spanish.5 In the study of Private International Law, there is yet a specific definition formulated for the term public policy (order).
Until now there is no clear definition of what is meant by the principle.
Many writers have tried to describe public policy, which only leads to conflicts of thoughts.
Although there is no unity of opinion among legal experts, they all hold that public policy plays an important role in every state’s legal system.
This is inseparable to the fact that each country having its own general policy, where such notion is always dynamic and changes according to time.
Another reason why public policy is difficult to define is because the level of fundamentality of moral conviction is determined differently for each case in various countries, according to its conditions and situations.6 Even sometimes the principle is influenced by socio-political conditions.
In addition to the different terms in each country, the notion of public interest is also different in each country as it is influenced by the philosophy, political system, government, and characteristics of the nation.7 Public policy can be categorized into domestic and international public policy.
5 Ibid 6 Ayu Atika Dewi, ‘Problematika Pelaksanaan Putusan Arbitrase Internasional di Indonesia’ (2017) 2 (2), Jurnal Panorama Hukum, 193 7 Safrina, ‘Peranan Pengadilan dalam Pelaksanaan Putusan Arbitrase Internasionall’ (2011) 53 Kanun Jurnal Ilmu Hukum 144.
8 Susan Choi, ‘Judicial Enforcement of Arbitration Awards Under the ICSID and New York Convention’ (1996) New York University Journal of International Law and Politics 205.
Violation of domestic public policy means contrary to national laws and regulation or the national interest of the state concerned.8 Whereas in terms of international, public policy is violated if the violation touches the most basic nations of morality and justice.9 National Legislations on Public Policy As stated above, in light of the of the 1958 New York Convention a court may refuse enforcement of an award on its own motion if the enforcement would be contrary to its country’s public policy.
In the absence of a definition of public policy in the Convention, most domestic courts seem in general, have difficulty in precisely defining the meaning and the scope of the notion.
In the vast majority of jurisdictions, a violation of public policy implies a violation of fundamental or basic principles.
10 These principles seem, however, to be differently expressed by courts (and scholars) depending on whether they are in civil or common law jurisdictions.
In the first group, the definitions of public policy generally refer to the basic principles or values upon which the foundation of society rests, without precisely naming them.
On the other hand in the second group, the definition often refers to more precisely identified, yet very broad, values, such as justice, fairness or morality.
The Table 1 shows how states define and refer to public policy as the foundation of the legal system.
9 Wlliam Park, ‘When the Borrower and the Banker are at the Oods, The Interaction of Judges and Arbitration in Trans-Border Finance, in Erman Rajagukguk, Implementation of the 1958 New York Convention in Several Asian Countries: The Refusal of Foreign Arbitral Awards Enforcement on the Grounds of Public Policy’ (2008) 5(2) Indonesian Journal of International Law 189.
10 IBA Subcommittee on Recognition and Enforcement of Arbitral Awards, Report on the Public Policy Exemption in the New York Convention, October 2015, 6 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Saraswati Discourse Interpretation of Public Policy in the Context of... | 53 Table 1.
Definitions of Public Policy No.
Countries Definition Of Public Policy 1.
Belgium What touches upon the essential interests of the State or of the community or sets, in private law, the legal basis on which rests the society’s economic or moral order 2.
Brazil The fundamental principles of its jurisdiction.
It is worth mentioning that public policy includes the political, legal, moral and economical aspects of the constituted State 3.
China The principle of the law, fundamental interests of the society, safety of the country, sovereignty and good social customs 4.
Egypt Rules aiming to achieve a public interest, whether political, social or economic, pertaining to the society’s high order and which prevails over the individual interest 5.
Greece The fundamental statutory, moral, social, legal or economic perceptions that prevail in the country 6.
Italy “Those fundamental norms and values of ethical, social, political and economic nature that lie at the heart of the Italian legal order 7.
Portugal The State’s most basic principles of social, ethical, political and economic nature (inclusive of the ones comprised in the Constitution) 8.
Turkey The entire set of rules and institutions, which determines the foundation structure and protects the fundamental interests of the society from the political, social, economic, ethical and legal perspectives within a specific period of time 9.
Australia Fundamental norms of justice and fairness 10.
Canada The most basic and explicit principles of justice and fairness in Ontario” and “the essential morality of Ontario.” 11.
Singapore The most basic notions of morality and justice.” 12.
USA Most basic notions of morality and justice and fundamental notions of what is just in the United States 13.
Indonesia (i) a violation of prevailing laws and regulations in Indonesia; (ii) a danger to the national interest of Indonesia, including its economy and (iii) a violation of the Indonesian sovereignty 14.
India “(i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality 15.
Pakistan Community sense and common conscience extended and applied throughout the State to matters of public morals, health, safety, welfare and the like Based on the table above, it can be seen that civil law countries (1-8) refer public policy as the foundation of the legal system on which is based on the moral, political and economic order of the society.
In contrast, the definition is common law countries (9-12) tend to define public policy as norms of fundamental values, justice, and fairness.
Whereas in a minority jurisdiction (13-15), public policy seems to be given a much broader content.
Despite the differences, 11 Paul Stothard, Alexa Biscaro, ‘Public Policy as a Bar to Enforcement, Where are We Now?’ (2018) 10 International Arbitration Report 23. many courts stress that public policy remains a nebulous and evolving concept.11 Public Policy by Case Law As the most popular reason for rejecting the enforcement of arbitral awards, public policy has been interpreted in a number of international legal cases.
To this day, the concept has become the object of debate due to its controversial and complex weight.
Since national courts of states have Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 54 | Saraswati Discourse Interpretation of Public Policy in the Context of... taken diverse approaches in solving the problem.
These various approaches are presented in the Table 2.
Table 2.
States’ Approach States Case Approach USA American Construction Machinery & Equipment Corporation Ltd. v. Mechanised Construction of Pakistan Ltd.12 The refusal to enforce award in light of the obligations in the New York Convention is a violation of public policy.
To read the public policy defense as a parochial device protective of national political interests would seriously undermine the Convention’s utility.
French Eco Swiss China Time Ltd. v. Benetton International NV13 Public order means fundamental principles inside the EU, including competition regulations.
Through the decision of the abovementioned US court, it can be said that courts in America take a very restrictive approach in interpreting public policy.
It is clear that any intervention in the national court in international arbitration regarding this matter must be minimized.
The refusal of rejection of the enforcement of an arbitral award should be seen as an “exceptional circumstances”.
On the other hand, French courts also take a restrictive approach, where the reason for public policy can be used when an award completely violates French public policies or fundamental principles.
In the abovementioned case, competition regulations are considered as one of the fundamental principles recognized in the European Union.
Hence, in this situation, a foreign arbitral award may be rejected on the grounds of violating public policy.
Indonesian Laws and Regulations In general Indonesian laws contains the term public policy.
For example in Law No.
12 American Construction Machinery & Equipment Corporation Ltd. v. Mechanised Construction of Pakistan Ltd. case, 417 US 506, 1974 13 ECJ, Eco Swiss China Time Ltd. v. Benetton International NV, 1999 14 Explanatory to article 49 of the law.
Article 49 says that the Administrative Court shall not have the 9 year 2004 concerning the Administrative Court, public policy means the interest of the nations and state and/or the interest of the people and/or the interest of the development in accordance with the existing regulations.’14 From this article, the term is exceedingly broad.
Public policy is connected not only with the interest of the state but also with the people as well as national development.
Furthermore, no laws explain what the interests of the state or nation is.
However, when it comes to the issue of the interests of the state’s development, of state’s assets or money may be classified as falling within that meaning.
Related to arbitration, the provisions of public policy could be found in Presidential Decree No.
34 Year 1981, 15 as a ratifying legislation of the 1958 New York Convention.
Indonesia has ratified the Convention which came into force on June 7, 1959.
In connection with this, article 5 emphasizes that not all foreign arbitration decisions can be implemented.
In other words, the enforcement of a foreign power to adjudicate and decide the disputes concerning the decisions made by the authorities where the decisions are made in the interest of public policy based on the applicable laws.
15 Presidential Decree No.34 Year 1981 on the Ratification of Convention on the Recognition and Enforcement of Foreign Arbitral Awards Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Saraswati Discourse Interpretation of Public Policy in the Context of... | 55 arbitration award may be refused.
One reason often used for such basis is regarding violations of the principle of public order in a country where the decision was made.
The problem is that the Presidential Decree has only two articles, namely the article which states the binding on the Convention, as well as the entry into force article.
There is no translation text of the New York Convention in Bahasa Indonesia.16 Responding to the New York Convention that had been codified, the Supreme Court issued Supreme Court Regulation No.
1 Year 1990 on the Procedures for Implementing Foreign Arbitration Decisions in accordance with the mandate of Article 3 of the New York Convention 1958.
Public order is considered important, therefore the conditions must not conflict with public order which states: "obviously contrary to the joint human rights and the entire legal system and society in Indonesia".17 Furthermore, public order is further strengthened in the Law No.
30 Year 1999 concerning Arbitration Law and Alternative Dispute Resolution Law (hereinafter the Arbitration Law), which states that international arbitration decisions that can be implemented in Indonesia are limited only to decisions not in conflict with public order.18 This means if an international arbitration award is contrary to public order of Indonesia, then the executioner’s application may be rejected.19 The existence of the above Indonesian national regulations does not guarantee the clarity of the meaning of public order.
Hence, 16 At present all international agreements must be translated into Indonesian based on Law No.
24 of 2009 concerning Flag, Language and State’s Coat of Arms and National Anthem 17 Supreme Court Regulation No.
1 Year 1990 on the Procedures For Implementing Foreign Arbitration Decisions, article 3 ( 3), restated in article 4 (2) this norm creates uncertainty for any parties.
The main problem is that all of the legislation does not provide a clear definition to the term “public order”.
20 There is no clarity regarding what public order is and whose public order will be violated if the decision is executed.
This may create problems regarding what kind of interpretation will be used to define public order.
Could the interpretation be narrow or broad?
What are the limits?
To what extent will the ranges be?
It can be said that the enactment of the Arbitration Law is not in accordance with the principle of legislation contained in article 5 letter (f) of Law No.
12 Year 2011 on the Establishments of Laws and Regulations, specifically the principle of clarity of formulation, which must fulfill the requirements for using accountable and definite legal language preventing ambiguation in the interpretations.
When referring to doctrines, there are different interpretations of what public order is among experts.
For example, some experts formulate public order as a provision of main principles of law and national interests of a nation.
However, once again in practice the explanation is still interpreted extensively due to unclear boundaries and arrangements.
Thus, this does not fulfill the most basic legal principles, the principle of legal certainty.
Therefore, public justice and benefits as noble ideals of law enforcement are yet to achieve.
In connection with interpretation, Sudargo Gautama argued that it should not be contrary to public order, requiring that carrying out foreign arbitration decisions in 18 Law No.
30 Year 1999 concerning Arbitration Law and Alternative Dispute Resolution Law, article 66 (e) 19 Gunawan Widjaja dan Ahmad Yani, Hukum Arbitrase, (Raja Grafindo Persada, 2001), 134.
20 Jan Paulsson, The Idea of Arbitration (Oxford Up, 2013), 200.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 56 | Saraswati Discourse Interpretation of Public Policy in the Context of... the Republic of Indonesia would create a great shock in the legal system in Indonesia.
Public interests include the joints and fundamental values and national interests of a nation.
21 The contents of the foreign decision are manifestly incompatible, as stated in the conventions of private international law.
This means that the foreign arbitral awards that request a distinguish implementation are strikingly unacceptable to the Indonesian legal system, for it contradicts the 1945 Constitution and Pancasila, as well as other fundamental principles.
However, the restriction should be used as efficiently as possible, working as a shield in case only to keep the Indonesian legal system from experiencing a great shock, and not as a sword.22 Yahya Harahap, a former Chief Justice and Arbitration expert, provides the following limits on the principle of public order: "a matter which is considered contrary to order in an environment (state) if it contains a matter or condition that is contrary to the principles and values of the system law and national interest of a nation".23 Whereas Erman Rajagukuguk turned to the public interest as order, welfare, and security (law order or justice).24 Meanwhile, Tony Budidjaja suggested that violations of public order should be considered as a violation that exceeded or weighed more than 21 Sudargo Gautama, Undang-Undang Arbitrase Baru 1999 (Citra Aditya Bakti) 2.
22 Tineke Tuegeh Longdong, Asas Ketertiban Umum dan Konvensi New York 1958 (Bandung, P.Citra Aditya Bakti, 1998) 152.
23 Decision of Cassation of the Supreme Court of the Republic of Indonesia No.
01 K / Pdt.Sus / 2010 case between Astro Nusantara International BV, Astro Nusantara Holding BV, Astro Multi Media Corporation NV, Astro Multimedia NV, Astro Overseas Limited, Astro All Asia Network PLC, Measat Broadcast Network System SDN BHD and the reasons contained in article 70 of the Arbitration Act.25 Furthermore, according to article 23 Algemene Bepalingen van Wetgeving voor Nederlands Indië (hereinafter “AB”) which is the General Legislative Provisions for the Dutch East Indies, State Gazette 1847 No.23, public order is a violation of moral rules.
The provisions of article 23 AB are not only limited to the national atmosphere but also include the international atmosphere, because it covers all agreements as well as other legal actions that occur within the territory of the national state.
Dr. Tin Zuraida, SH, M.Kn in her book, The Principles for Executing International Arbitration Awards in Indonesia, Theory and Practice, cited Prof. Mr. Sudargo Gautama that the so-called Public Policy or public order is as follows: “public policy or openbare orde is just “a reserve principle which is only to be invoked exceptionally”.
The above explanation illustrates how public order is very relative, which makes judge interpret the concept differently.
Judge’s Interpretation of Public Policy As said before, Indonesian Arbitration Law provides that an international award can only be enforced in Indonesia if not contrary to public policy.
However, public policy is not clearly defined in a number of Indonesian legislation providing no uniform judicial approach to the interpretation and application.
All Asia Multimedia Network FZLLC against PT.
Ayunda Primatamitra, PT.
First Media, Tbk and PT.
Direct Vision, 20 24 Erman Rajagukguk, ‘Hukum Ekonomi Indonesia: Menjaga Persatuan Bangsa, Memulihkan Ekonomi, dan Memperluas Kesejahteraan Sosial’ (2003) 5 Jurnal Hukum Bisnis 22.
25 Suleman Batubara, Orinton Purba, Arbitrase Internasional Penyelesaian Sengketa Investasi Asing Melalui ICSID, UNCITRAL dan SIAC (Penebar Swadaya Grup, 2013), 151.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Saraswati Discourse Interpretation of Public Policy in the Context of... | 57 There is no further guideline on the application of the principle of public policy in relation to the recognition and enforcement of international awards.
26 In practice, the reasoning of court decisions that refuse enforcement on the basis of public policy varies, and should be analyzed on a case-bycase basis.
Table 3.
Public Policy Interpretation No.
Case Public Policy Interpretation 1.
ED & F Man (sugar) Ltd v Haryanto27 The unlawful agreements which violate the mandatory rules and regulations in Indonesia relevant to the subject matter of the agreements are seen as a violation of public policy.
The agreement violated the prevailing laws in Indonesia which regulated that imports of sugar were the sole discretion of BULOG.
2.
Bankers Trust v PT Mayora Indah TBK (2000)28 A contradictory ruling of the Indonesian court that had not gone through the full judicial appeal process as well as the granting of an exequatur would only confuse and be against Indonesian public policy.
The enforcement of the foreign arbitral award would amount to a violation of Indonesian public policy because the same matter is currently being examined by an Indonesian court which has not rendered its decision yet.
3.
The Astro Nusantara Bv et al v PT Ayunda Primamitra 2010)29 The arbitral award, which contained an order to cease the on-going legal proceedings in Indonesia violated the sovereignty of the state because no foreign power could ever interfere with the on-going legal proceedings in Indonesia.
Violation of state sovereignty is against Indonesian public policy.
4.
PT Bakri Brothers v. Trading Corporation of Pakistan Ltd (1984)30 Due process, which means public policy as a fundamental principle, includes that all parties have an equal opportunity to be heard.
This principle demands that each party must have been effectivity offered such opportunity.
The proceeding failed to provide equal treatment therefore considered a violation of public policy.
The principle in international law is what has been legally recognized in a national law in terms of arbitration must also be recognized in other countries.
This public policy should be interpreted strictly and applied carefully.
This principle is only an exception.
No agreement in international law should fail to develop and lose to national law.
Based on the table above, Indonesian courts have interpreted the public policy exception very broadly where is applies 26 Ade Maman Suherman, Arbitrase dan Alternatif Penyelesaian Sengketa, Aspek Hukum Dalam Ekonomi Global (Ghalia Indonesia, 2014), 39.
27 The Central Jakarta District Court Decision No.
499/Pdt/G/VI/1988/PN.Jkt.Pst dated 29 June 1989, upheld by the Jakarta High Court Decision No.
486/Pdt/1989/PT.DKI dated 14 October 1989, and subsequently by the Indonesian Supreme Court Decision No.
1205 K/Pdt/1990 dated 14 December 1991.
28 The CJDC Decisions No.
01 and 02/Pdt/Arb.Int/1999/PN.Jkt.Pst in conjunction with No.
02/Pdt.P/2000/PN.Jkt.Pst dated 3 February 2000, upheld by the Indonesian Supreme Court Decision No.
02 K/Ex’r/Arb.Int/Pdt/2000 dated 5 September 2000, in conjunction with the public policy in the “domestic” sense.
This bearing is due to the provision of Article 4 (2) of the Supreme Court Regulation Number 1 of 1990 on the Enforcement Procedures of Foreign Arbitral Award mentioned earlier.
From such provision, the emphasis of public policy is laid on the Indonesia’s internal conditions, such as, 31 a violation of the prevailing laws and regulations in Indonesia; endangering the national interest of Indonesia; and a violation against the SJDC Decision No.
46/Pdt.G/1999/PN.Jkt.Sel 9 December 1999.
29 The CJDC Decision No.
05/Pdt.Arb.Int/2009 dated 28 October 2009, upheld by the Indonesian Supreme Court Decision No.
01 K/Pdt.Sus/2010 dated 24 February 2010.
30 The South Jakarta District Court Decision No.
64/Pdt/G/ 1984/PN.Jkt.Sel dated 1 November 1984, upheld by the Jakarta High Court Decision No.
512/Pdt/1985/PT.DKI dated 23 December 1985, and subsequently by the Indonesian Supreme Court Decision No.
4231 K/Pdt/1986 dated 4 May 1988.
31 Frans H. Winarta, Indonesia Country Report on Public Policy for IBA APAG (IBA, 2015), Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 58 | Saraswati Discourse Interpretation of Public Policy in the Context of... sovereignty of Indonesia, and not on international conditions.32 In sum, the examples show that specific reasons are the basis for saying that a foreign arbitration decision is contrary to the public policy in Indonesia, namely: a.
If during the process of legal proceeding a party is not given the opportunity to be heard enough before the decision is taken, this is considered as a form of intervention towards the on-going proceeding of the domestic courts.
b.
If the procedure for taking the arbitral award is not in accordance with the procedural law, the verdict is taken in violation of the arbitration law agreed upon by the parties.
In this case there was a district court that was still hearing and examining the case of the two parties.
This definitely violates public policy.
Under the international standard, the violation of public policy is viewed as an attitude which sets aside the value of the state and also the norms and rules under its restrictive international obligations.
33 It is why merely adopting the ground of contravention of the state’s internal rules of law, including its mandatory rules, is not considered as legal justification for refusing enforcement of foreign arbitral awards.
34 Therefore, the stance taken by the Indonesian courts have been criticized as exaggerating and out of the principle of fundamentality, which has been discerned to be not enough 32 Erman Rajagukguk, Implementation of the 1958 New York Convention in Several Asian Countries: The Refusal of Foreign Arbitral Awards Enforcement on the Grounds of Public Policy, Paper Presented in the 3rd Asian Law Institute (ASLI) Annual Conference on The Development of Law in Asia: Convergence versus Divergence?, Shanghai May 25-26, 2006, 2. reasonable for objecting the international nature of arbitral awards.
This adoption of broad and “domestic” public policy exception has made it difficult for a winning party to enforce foreign arbitral awards.
IV.
CONCLUSIONS AND SUGGESTIONS Although Indonesia has ratified New York Convention, Indonesia has shown several unfriendly approaches to foreign arbitration through rejection of the enforcement of foreign arbitral awards.
Through several case law, it is found that the Indonesian judicial attitude towards public policy defense to refuse enforcement of foreign arbitral awards has been broad and expansive.
The decisions that have been made by the court give rise to various criticisms on the grounds of using a "domestic" perspective, and not a perspective based on values and principles of international law.
Such conditions are seen by the international community as a legal uncertainty.
Therefore, in term of normative aspect, the law in Indonesia needs to expressly draw the distinction between international and domestic public policy.
In terms of interpretation by the courts, Indonesia need to see and compare best practices by other states.
This is to prevent courts to easily intervene in the enforcement of international arbitration award on the grounds of public policy.
33 International Law Association, Resolution of the ILA on Public Policy as Bar to Enforcement of International Arbitral Awards (ILA, 2002) 34 Mahmudin Nur Al-Gozaly, ‘The Judicial Expansive Attitude towards Public Policy in Enforcement of Foreign Arbitral Awards in Indonesia’, (2014) 14 Jurnal Opinio Juris 162.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Saraswati Discourse Interpretation of Public Policy in the Context of... | 59 REFERENCES Books Batubara, Suleman, and Purba, Orinton, Arbitrase Internasional Penyelesaian Sengketa Investasi Asing Melalui ICSID, UNCITRAL dan SIAC (Penebar Swadaya Grup, 2013).
Gautama, Sudargo, Hukum Perdata Internasional Indonesia Buku IV, (Alumni, Bandung, 1989).
Gautama, Sudargo, Undang-Undang Arbitrase Baru 1999, (Citra Aditya Bakti).
Paulsson, Jan, the Idea of Arbitration, (Oxford Up, 2013).
Widjaja, Gunawan and Yani, Ahmad, Hukum Arbitrase, (Raja Grafindo Persada, 2001).
Journals Al-Gozaly, Mahmudin Nur, ‘The Judicial Expansive Attitude towards Public Policy in Enforcement of Foreign Arbitral Awards in Indonesia’ (2014) 14 Jurnal Opinio Juris.
Choi, Susan, ‘Judicial Enforcement of Arbitration Awards Under the ICSID and New York Convention’ (1996) New York University Journal of International Law and Politics.
Chong, Adeline, ‘Transnational public policy in civil and commercial matters’, (2012) Law Quarterly Review.
Dewi, Ayu Atika, ‘Problematika Pelaksanaan Putusan Arbitrase Internasional di Indonesia’ (2017) 2(2) Jurnal Panorama Hukum.
Hikmah, Mutiara, ‘Penolakan Putusan Arbitrase Internasional dalam Kasus Astro All Asia Netwok Plc, Kajian Putusan Nomor 05/Pdt/ArbInt/2009/PNJP’, (2012) 5(1) Jurnal Yudisial.
International Law Association, ‘Resolution of the ILA on Public Policy as Bar to Enforcement of International Arbitral Awards 2002’ Longdong, Tineke Tuegeh, Asas Ketertiban Umum dan Konvensi New York 1958, Bandung: P Citra Aditya Bakti, (1998) Rajagukguk, Erman, ‘Hukum Ekonomi Indonesia: Menjaga Persatuan Bangsa, Memulihkan Ekonomi, dan Memperluas Kesejahteraan Sosial’, (2003) 5 Jurnal Hukum Bisnis.
Safrina, Peranan Pengadilan dalam Pelaksanaan Putusan Arbitrase Internasional, (2011) 53 Kanun Jurnal Ilmu Hukum.
Stothard, Paul, Alexa Biscaro, ‘Public Policy as a Bar to Enforcement, Where are We Now?’ (2018) 10 International Arbitration Report.
Laws Convention of the Recognition and Enforcement of Foreign Arbitral Awards, 1958 Presidential Decree No.34 Year 1981 on the Ratification of Convention on the Recognition and Enforcement of Foreign Arbitral Awards Law No.
30 Year 1999 concerning Arbitration Law and Alternative Dispute Resolution Law
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.03| 29 Institutional and Legal Control of Gas Flaring in the Niger Delta Region of Nigeria Hakeem Ijaiya1, Mutiat Abdulsalam La-Kadri2, Maryam Bayero Jimoh3 1University of Ilorin, Ilorin E-mail: hakeemijaiya@gmail.com 2Al-Hikmah University, Ilorin E-mail: mutiatabdulsalami@yahoo.com 3Al-Hikmah University, Ilorin E-mail: maryam.bayero@yahoo.com Submitted : 2017-09-11 | Accepted : 2018-04-11 Abstract: The emission of “greenhouse gases” into the air has adverse effects on the environment.
This study examines the effects of gas flaring on the Niger Delta Region of Nigeria.
It analyses the institutional and legal framework that prevents gas flaring in the region.
The paper appraises the effectiveness of the existing laws on gas flaring with a view to suggest viable means of reviewing the laws.
The study found that continuous flaring of gas in the region over the last forty years has adversely bring about health challenges, climate change and loss of income in the region in particular and Nigeria as a whole.
The study also found that the laws are too many and ineffective and that the regulatory institutions lack the necessary authority for their enforcement.
The paper concludes that basic human rights can only be enjoyed in a pollution free environment.
The paper therefore recommends amongst other that applicable laws should be amended, harmonized and domesticated where necessary.
The study relies on primary and secondary sources of information like Constitution, Constitutional documents, Statutes, Judicial precedents, International Conventions and Treaties, Books, Journals and Internet materials.
The information obtained through these sources was subjected to content analysis.
Keywords: Gas Flaring, Environmental challenges, Applicable laws, Regulatory, Institutions.
I.
INTRODUCTION The Niger Delta Region of Nigeria is one of the Ten (10) most important wetland and coastal marine ecosystems in the world.
It is located at the southern part of Nigeria, endowed with network of rivers and massive oil deposits which is being extracted as a main income source for the Nigerian mailto:hakeemijaiya@gmail.com mailto:mutiatabdulsalami@yahoo.com mailto:maryam.bayero@yahoo.com Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 30 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... government.1 It comprises of nine states namely Abia, Akwa-Ibom, Bayelsa, CrossRiver, Delta, Edo, Imo, Rivers and Ondo.
Gas flaring refers to a situation whereby the gases from a petroleum product are allowed to be released into the atmosphere.2 The gas that is flared is referred to as associated gas.3 Gas flaring has damaged the soil, water and air quality of the region.
168 cubic meters of gas is flared in the region yearly, this is equivalent to 25% of gas consumption in the United States of America (USA) and 30% of EU gas consumption.4 This emits 400 million tons of carbon monoxide (Co) into the atmosphere annually, making Nigeria responsible for 13% of the gas flared in the world.5 This quantity is enough to meet Nigeria’s energy needs and leave a healthy balance for export.6 It is on this premise that the paper examines the institutional and legal framework that prevents gas flaring.
It further examines briefly the history of gas flaring in Nigeria.
The paper appraises the effectiveness of the existing laws on gas flaring with a view to suggest viable means of reviewing the laws.
This study concludes that there exists institutional and legal framework to curtail gas flaring and pollution generally but with a lot of limitations that need to be addressed.
II.
LEGAL MATERIALS AND METHODS The study relies on primary and secondary sources of information like Constitution, Constitutional documents, 1 Dike, K. O., Trade and Politics in the Niger Delta (Oxford: Clarendon Press, 1956), 1 2 Hassan, T. E., Nigeria’s Niger Delta Crisis: Root Causes of Peacelessness, EPU Research Papers, EPU, Australia, 2007), 1-41; See also, Kaniye, S. E., ‘The Right to a Satisfactory Environment and the African Commission’, (2003) 3 African Human Rights Law Journal, 149.
Statutes, Judicial precedents, International Conventions and Treaties, Books, Journals and Internet materials.
The information obtained through these sources was subjected to content analysis.
Primary legal materials used in this papers are those relevant to gas flaring and environmental law which include both national and international legal framework, National legal framework inculdes: Petroleum Act, The Petroleum (Drilling and Production) Regulations, Associated Gas Reinjection Act (AGRA) of 1979, Association Gas Re-injection (Continued Flaring of Gas) Regulation, Nigeria Liquefied Natural Gas (Fiscal Incentive Guarantee and Assurances) Decree (FIGAD), Nigeria Liquefied Natural Gas (Fiscal Incentive Guarantee and Assurances) Decree (FIGAD), The 1999 Constitution, West African Gas Pipeline Project (Ratification and Enforcement) Act, Petroleum Profit Tax Act, Environmental Impact Assessment (EIA) Act, Petroleum Industry Bill, 2012.
Whereas international legal framework inculdes: The 1972 Stockholm Conference on Human Environment, The Vienna Convention on the Protection of the Ozone Layer, The United Nations Conference on Environment and Development (UNCED), World Summit on Sustainable Development or Rio + 10 (Johannesburg Summit), United Nations Conference on Sustainable Development (UNCSD) and African Charter on Human and Peoples’ Rights 3 Ike, O., and Oronto, D., Where the Vultures Feast: Shell, Human Rights and Oil in the Niger Delta, (San Franscisco: Sierra Club Books, 2001), 209 4 Bassey, N., Gas Flaring: “Assaulting Communities, Jeopardizing the World”Environmental Rights Action in Conjunction with the Federal Ministry of Environment, 10-11 December, 2008, P3.
5 Ibid, 3.
6 Ibid, 3.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... | 31 III.
RESULTS AND DISCUSSIONS Gas Flaring in the Niger Delta Shell British Petroleum (Shell BP) started exploring oil in the Niger Delta in the 1930s.7 The first export was made in 1958.8 In this same year, the Secretary of State for the colonies referred to gas flaring 9 as wastage of energy and resources for which those giving advice to the Nigerians (i.e.
the British) could be reproached.10 In Nigeria, over 50% of the gas associated with crude oil extracted is flared.
However, this separated gas could be made more useful as liquefied natural gas, re-injected into the earth, vented or flared.11 The first major move to halt gas flaring in Nigeria was made in 1969 via the Petroleum Decree and the Land Use Act of 1978.
These Laws vested oil and land resources, respectively, in the State.12 Subsequently, Nigeria joined the Organization of Petroleum Exporting Countries (OPEC) in 1971, and in furtherance of OPEC’s resolution urging member states to acquire controlling interest in concessions held by foreign companies, 7 Quoted in ERA/CJP, Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity, (Amsterdam, 2005) 52.
This book can be found at both www.climatelaw.org and at www.eration.org 8 Ibid, 52.
9 These comments were contained in a confidential “reasonably comprehensive survey of the history, the present position and future prospects of the oil producing industry in Nigeria”Provided by Mr. J. S. Sadler, the British Trade Commissioner in Lagos to the Economic Relations Department of the Foreign office in London on 9th August, 1963: ‘Development of oil Resources in West Africa 1963,’ File 371/167170, UK National Archives.
10 Ibid.
11 Bassey, N., Gas Flaring: ‘Assaulting Communities, Jeopardizing the World’Environmental Rights Action in Conjunction with the Federal Ministry of Environment at Reiz Hotel, Abuja, 10-11 December, 2008.
12 Willink Commission, 1958: 95 Para 30; the Nigeria military government established the Nigerian National Oil Corporation (NNOC)13 and ordered the set-up of infrastructure to utilize associated gases within 5years of their commencement of operations.
The order was neglected by oil companies, until 1979 when the Associated Gas Re-injection Act14 was made to finally outlaw routine gas flaring in Nigeria.
The Act required oil corporations to produce detailed plans for gas utilization and guarantee zero flares by January 1, 1984, except with the express permission of the minister.15 Upon return of civilian administration in 1999, oil companies were required to end flaring of gases by 2003, later shifted to 2004, and December 2008 subsequently.16 Shell in its sustainability Report 2006 asserted that they would end routine gas flaring everywhere in the world in 2008 except in the Niger Delta,17 because the locations are not easily accessible, and ending of flares may lead to the shutdown of production in some areas.
Again, in 2007, Shell in its sustainability report raised the violent nature of the region as a further excuse for not ending gas flaring.18 Exxon 13 Decree No.
18 of 1971.
But the NNOC later became the Nigerian National Petroleum Corporation in 1977, as a result of a merger between the NNOC and the Ministry of Petroleum Resources 14 Cap 26 Laws of Federation of Nigeria, 1990.
15 Cite the section 16 The Guardian, Editorial: Gas Flaring, end of a moving target?
Tuesday January 15, 2008.
Again, among the shifts of deadlines that happened was in 2007 when it was a month to the end of a subsisting deadline, Late President Umaru Musa Yar’Adua at an International Gas Stakeholders Forum held in Abuja simply moved the deadline from January 2008 to December 2008.
17 Shell, Meeting in Energy DemandThe Shell Sustainability Report 2006, P14.
(Statement made by Shell boss in Nigeria, Basil Omiyi, May 29, 2005).
18 Nwachukwu, C., Gas Flaring: Oil Majors Seek extension of Deadline to 2010, The Punch, Lagos, Wednesday 14, November, 2007. http://www.climatelaw.org/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 32 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... Mobil declared 2010 as appropriate for ending gas flaring.19 While Chevron also opted for year 2010 as the appropriate time for ending gas flaring.20 Efforts to penalize oil companies for flaring gasses beyond the stipulated date has been futile, as the companies opt for payment of fines rather than stopping flaring of gases.
For instance, in the Associated Gas Reinjection Act of 1979, the sum of 0.50 Naira is being charged per million cubic feet (mcf) for flaring gases, but in 1998 this penalty was increased to 10 Naira per mcf.21 In 2009, the penalty was raised to $ 3.5022 for every 1,000 cubic feet of gas flared.
However, the former Senate President, David Mark noted that the proposed fine of $ 3.50 per 1,000 cubic feet of gas flared is meager and would not deter the companies.23 Considering the continuous shift of the date for ending flaring of associated gases, it is difficult to state when the menace will end.
Effects of Gas Flaring Gas flaring in the Niger Delta region is a critical environmental problem with hazardous impacts not only on the people but also extends to its economy, ecology and the environment at large.
Gas flaring has been going on for over 35years.24 It affects plant life, pollutes the surface water and burns and 19 Ibid.
20 Eboh Camillus, Oil Firms resist Nigerian Fines for Gas Flaring, Tuesday, December 4, 2007.
21 GAS, Global Gas Flaring Reduction Initiative: Report No.
3: Regulation of Associated Gas Flaring and Venting – A Global Overview and Lessons (World Bank, March 2004), 60-64.
22 Its equivalent in Naira as at now (2015) is ₦700.
23 Daniel, Alifa, Gas Flare Fine Meager says Mark, The Guardian, Thursday, November 25, 2008.
24 Kassim-Momodu, M., ‘Gas Re-injection and the Nigerian Oil Industry’ (1986 & 1987) 6 & 7 Journal of Private and Property Law, 69-90 25 Robinson, D., Ogoni: The Struggle Continues (Geneva: World Council of Churches, 1996) 28. changes to other unsafe gases.
However, where gas flaring has stopped, people were able to see a difference in their vegetation; farm yields are better than before.25 The communities affected by gas flaring have had their plant and wildlife destroyed and suffered from health challenges including respiratory diseases, cancers, blood disorders and skin diseases as a result of incessant gas flare.26 To this end, life expectancy in the Niger Delta is markedly lower than what obtains elsewhere in Nigeria.27 Although there is no direct evidence of impacts of gas flares on pregnant women, they are more likely to be vulnerable to airborne contaminants during this period and exposures to oil-related contamination have been linked to maternal outcomes such as spontaneous abortion.28 Gas flaring has also caused change in the natural climatic condition of the region, the country and the world at large.
Gas flares release about 45.8 billion kilowatts of heat into the atmosphere of the Niger Delta daily, thus raising temperatures and rendering a large area inhabitable.29 Also, acid rain occurs as a result of mixture of nitrous and sulphur oxides from the flares with atmospheric moisture.
Acid rains wreak havoc on the environment, destroying crops, roofs and adversely affect human health.30 26 Ikein, A.
A., The Impact of Oil on a Developing Country: The Case of Nigeria.
(New York: Praeger,1990) 269.
See also, Ikein, Citing Rowell, Shell Shocked: The Environmental and Social Costs of Living with Shell in Nigeria.
(1990), 269.
27 Ibid 28 See Amnesty International; Nigeria: Petroleum, Pollution and Poverty in the Niger Delta; United Kingdom, Amnesty International Publication, June, 2009, Pg 36.
29 Uyigue, Etiosa and Agho, Matthew, Coping with Climate Change and Environmental Degradation in the Niger Delta of Southern Nigeria, (CREDC, 2007).
30 Bassey, Nnimmo; "Gas Flaring: Assaulting Communities, Jeopardizing the World”, Paper Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... | 33 The above position had been buttressed by Holden C.J and he rightly observed that, ‘the more gas that is burnt, the more heat is generated.31 The impacts of climate change is more pronounced in low-lying coastal areas such as the Niger Delta, which are more prone to freak weather events, flooding, coastal erosion and rise in sea level.
Temperature increase and the resultant climate change favours proliferation of pests and spread of diseases which adversely affects agricultural productivity.32 Furthermore, Environmental noise pollution had been recognized in recent years as a serious threat to the quality of life enjoyed by the people in the industrialized nations.
For example, the Utorogun Gas Plant in the Niger Delta area creates much noise and vibrations on the land and houses at about 6 kilometers radius from it.33 However, visitors to the Niger Delta have always complained of how the people in the region talk at high pitch tone.
This may be connected with long exposure to intense noise and vibration from gas flare stacks.
Indeed, scientists have concluded that when one is exposed to intense noise level, ear cells may be damaged temporarily or permanently.
It may also lead to speech impairment.34 Lastly, loss of income has been identified as another challenge faced by the people of affected areas.
It is not a gain Presented at National Environmental Consultation, Reiz Hotel, Abuja, 2008.
31 See Chinda V Shell BP (1974)2 RSLR 1, at 13.
32 N. Bassey, above n. 30 33 Ikelegbe, A.O.
“Pollution in Nigeria: Causes, Effects and Control: The Case of Delta State.” Paper Presented at the 14th Annual Congress of the Nigeria Geographical Association, Minna, 8 April, 1993.
34 Aghalino, S.O ‘Gas Flaring, Environmental Pollution and Abatement Measures in Nigeria 1969-2001’, (2009) 11 4, Journal of Sustainable Development in Africa 229-230. saying to say that large quantity of gas is flared in Nigeria yearly.
However, if these gases have been annexed, it would add up to the revenue that will accrue to the government and inability to discharge economic and social responsibility like prompt payment of salaries and provision of basic amenities would have been avoided.
Legal Framework As early as the 60s, Government has started putting laws in place to stop flaring of gases in the Niger Delta; these include Petroleum Act of 1969 and the Gas Reinjection Act of 1979.35 Prior to this time, there were some laws that regulate oil activities though most of it was enacted in direct response to problems associated with processing of oil.36 Also, the increased international concern about the need for environmental protection has led to development of various treaties and declaration to which States are signatories.
National Laws (i) The Petroleum Act was the first law that addressed the general potential problem of oil production and its possible hazards;37 it encourages oil companies to submit oil-development schemes that specified potential solutions to environmental hazards.38 The Act remains the primary law 35 Petroleum Decree of 1969 (Petroleum Act, Cap P10 LFN, 1990) and Association Gas Re-injection Act, Decree No 99 of 1979 (Cap.
A.
25 LFN 2004).
36 For example, Mineral Oils Ordinance of 1914, Mineral Act of 1945, Exclusive Economic Zone Decree now Act of 1978 (No 28 of 1978, Cap.
110, LFN 1990), Petroleum Drilling and Production Regulations of 1969 – Decree No.
51 of 1969, Petroleum Refining Regulations of 1974 and Oil Pipeline Act 1958.
37 Omeje, K., High Stakes and Stakeholders-Oil Conflict and Security in Nigeria, 25 (2006).
38 Ukala, E., ‘Gas Flaring In Nigeria’s Niger Delta: Failed Promises and Reviving Community Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 34 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... regulating oil and gas exploratory activities in Nigeria.
It is worthy of note to point out that, directives by this Act were disregarded by the oil companies and no stringent penalty awarded.39 (ii) The Petroleum (Drilling and Production) Regulations40 permitted the flaring of gas for five years before submitting the feasibility study.41 However, it failed to stipulate any penalty for breach, hence it was considered as being optional i.e.
not mandatory and no penalty was provided for defaulters.
(iii) Associated Gas Re-injection Act (AGRA) of 1979 provided legal framework for gas utilization applicable to both land and the Exclusive Economic Zone (EEZ).
The Act mandated the oil re-injection of gas into the earth’s crust and submission of detailed plans for gas utilization.42 It set 1st of January 1984 as the deadline for bringing an end to gas flaring, however, an oil company could be exempted from this deadline if they were issued a certificate from the Petroleum Minister.43 The penalty was forfeiture of concession and the Voices’, Journal of Energy, Climate and Environment.
39 S.7(3) of Petroleum Act says that any person who fails to comply with a directive shall be guilty of an offence and on conviction shall be liable to a fine not exceeding ₦ 2,000.00 (Two thousand Naira) only.
Could this penalty be regarded as punishment for not compliance to directives?
40 The Regulations are made pursuant to S. 9 of the Petroleum Act.
41 Regulation 42 42 Ibid Section 1 (a) & (b).
43 Ibid Section 3 (1).
44 Ibid Section 4 (1) & (2).
45 Ibid Section 3 (2).
46 Akaakar, F. O., ‘The Law and Natural Gas Development in Nigeria,’ in Natural Gas: The Minister’s discretion to order the withholding of all or part of any entitlement of an offender.44 The Act also empowers the Minister to issue a certificate specifying such terms and conditions for the continued flaring of gas in a particular field, if the Minister is satisfied that gas re-injection is not feasible.45 Gas re-injection requires huge fund and existence of certain infrastructure facilities, hence the 198446 stipulated deadline was unmet, and this led to the promulgation of the Association Gas Re-injection (Continued Flaring of Gas) Regulation.47 (iv) Association Gas Re-injection (Continued Flaring of Gas) Regulation.48 This Regulation further empowered the Minister to issue certificate for continuation of gas flaring, it introduced meager penalty which was increased consecutively in 1990, 1998 and 2008.49 Oil companies found payment of penalty more affordable than ending gas flaring.
The Act was later amended in 1991/1992, through the introduction of the Association Gas Framework Agreement (AGFA), which served as a Energy for the Next Millennium.
Proceeding of the 29th Annual Conference of the Nigeria Society of Chemical Engineers, 201-210 (November, 1999).
47 S. 3(2) of Association Gas Re-injection Act.
48 S. 1.
43 of 1984 gave more power to the Minister to issue certificate to oil companies to continue flaring gas under S. 3(2) of Association Gas Reinjection Act.
49 Penalty of two kobo per 1000 standard cubic feet (scf) of gas flared at any place authority to flare was not granted was introduced.
This amount was increased to fifty kobo per 1000 scf of gas in 1990, and the amount was further increased in 1998 to Ten Naira.
The penalty was further increased in 2008 to $3.50 per 1000 scf of gas flared.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... | 35 broad based fiscal incentive for natural gas utilization as regards the processing, production, transmission, and supply to Nigerian Liquefied Natural Gas (NLNG) and other facilities.50 Also, The National Assembly in 201051 amended the Associated Gas Re-injection Act by providing that no company engaged in the production of oil or gas shall after 31st December, 2012 flare gas except the minimum allowed by the Minister.52 (v) Nigeria Liquefied Natural Gas (Fiscal Incentive Guarantee and Assurances) Decree (FIGAD)53 The Act encourages and facilitates the development of the Nigeria Liquefied Natural Gas Project (NLNG), which in turn will reduce gas flaring.
The Act grants ten years tax holidays to the NLNG companies and exempts the companies involved in the NLNG project from import duties and certain taxes.54 (vi) The 1999 Constitution which is the supreme law in Nigeria provides for environmental protection55 in a broad manner, and it falls under Chapter 2 of the Constitution, which is nonjusticiable.
To this end, it will not bring about any serious environmental change, especially as it relates to regulating gas flaring.
50 Omeke C.,"A Critique on the Legal Regime Governing Gas Flaring in Nigeria" (Paper presented at the University of Nigeria, Nsuka, 2011).
51 Associated Gas Re-injection Amendment Act of 2010 52 Ibid Section 3(1).
The amendment set December 31,2012 as the deadline for abatement of gas flaring in its S. 3(2) but went ahead to provide a new section that permitted companies to continue the flaring of gas on the payment of a temporary gas flaring penalty of ₴ 5.00 per 1000scf of gas flared in its S. 3(2)(b).However, this amendment is yet to be signed into law.
(vii) West African Gas Pipeline Project (Ratification and Enforcement) Act56 The government in order to facilitate the utilization of gas entered into a treaty with three West African Countries for the West African Gas Pipeline Project in January 31, 2003.
This Treaty established the West African Gas Project Authority (WAGP Authority), an international institution having legal personality and financial autonomy with powers to implement the project on behalf of member states.
This treaty was domesticated into national law.
(viii) Petroleum Profit Tax Act57 also provides some tax incentives to companies engaged in gas utilization projects.58 Gas utilization opportunities include Independent Power Projects (IPPs), Liquified Natural Gas (LNG), Natural Gas Liquids (NGL), Gas-toLiquids (GTL), West African Gas Pipeline (WAGP) and Domestic Gas Utilisation.59 (ix) Environmental Impact Assessment (EIA) Act60 requires the developers of major development projects to subject their projects to the provisions of the EIA Act by conducting an environmental impact assessment before commencing work.
It therefore recognizes the need for proper legal 53 Decree No.
30 of 1990.
54 Ibid S. 2 & 7.
55 Section 20 of 1999 Constitution says; “The state shall protect and improve the environment and safeguard the water, air, land, forest and wildlife of Nigeria.” 56 LFN 2004 57 Cap 354 LFN 1990; Cap.
P14 LFN 2010 58 Ibid Section 10a and 11.
59 Also, there is need for the publication of the long awaited National Gas Policy.
60 Act No.
86 of 1992.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 36 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... framework in order to curtail gas flaring.
However, most projects are carried-out without EIA.
(x) Petroleum Industry Bill, 201261 has provisions that are instructive in combating the menace of gas flaring if implemented.
This Bill seeks to consolidate all the existing oil and gas laws in the country.
The bill provides for prudent management and allocation of petroleum resources and their derivatives in accordance with the principles of good governance, transparency and the sustainable development of Nigeria.62 It prohibits gas flaring after a specified date to be fixed by the minister through regulations to be made pursuant to the Act.63 Where a licensee or lessee flares gas without the permission of the Minister, payment of a fine, of an amount not be less than the value of the gas flared is prescribed.64 The bill prohibits the issuances of a license or lease for the production of oil and gas to any applicant without an acceptable comprehensive program for the utilization or reinjection of natural gas.65 It mandates all operators to install metering equipment to measure the volume of gas flared,66 within three months of the Act coming into force, criminalises flaring without a permit67 and mandates any person, group of persons or community to lodge a documented report of gas flaring or venting with the nearest office of the inspectorate.68 An officer of the 61 The Bill was presented to both Chambers of the National Assembly by the Nigerian President in July 19, 2012.
62 Petroleum Industry Bill 2012, S. 8-9.
63 Ibid.
S. 275.
64 Ibid.
S. 277(3).
Inspectorate is required to inspect the facility within forty eight hours of receiving the report, and within seven days submit a verification report to the inspectorate, if convinced, fine may be imposed or a shutdown order may be made.69 The PIB in addition also provides for the establishment of two regulatory agencies, three funds, three companies and one support bureau namely; Upstream Petroleum Inspectorate, Downstream Petroleum Regulatory Agency, Petroleum Technology Development Fund, Petroleum Equalisation Fund, Petroleum Host Communities Fund, National Oil Company, National Gas Company, National Petroleum Assets Management Company and Petroleum Technical Bureau.
This Bill is yet to be passed into law.
International Law In addition to Nigerian laws, there are international laws some of which are domesticated in Nigeria.
These include (i) The 1972 Stockholm Conference on Human Environment which ignited government's consciousness on the need for a holistic rather than sectorial approach to environmental protection.
It was regarded as a success and a soft law instrument by international standard.
The conference came up with 26 principles, calling on States and international organisations to play a coordinated, efficient and dynamic role in the protection of the environment.
In 65 Ibid.
S. 278.
66 Ibid.
S. 279.
67 Ibid.
S. 281.
68 Ibid.
S.280.
69 Ibid.
S. 280(2)-(6).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... | 37 pursuant to the proposal at the conference, the United Nations Environment Programme (UNEP) was commenced in 1973 to coordinate UN environmental activities, and assist developing countries in implementing environmentally sound policies and practices.
Also, UNEP and the World Meteorological Organisation established the Intergovernmental Panel on Climate Change (IPCC) in 1988.
As laudable as these principles are, it is yet to be domesticated in Nigeria.
(ii) The Vienna Convention on the Protection of the Ozone Layer entered into force in 1988.
The Convention enjoins parties to imbibe measures to protect human health and the environment against hazardous activities in the ozone layer, but failed to make legal provisions for the reduction of chlouroflourocarbons (CFCs).
In furtherance to the Convention, the Montreal Protocol on substance that deplete the ozone layer was made, it came into force on the 1st of January, 1989.
(iii) The United Nations Conference on Environment and Development (UNCED), (the Earth Summit).
The conference addressed urgent problems of environmental protection and socioeconomic development.
It influenced subsequent UN Conferences and led to 70 United Nations, Johannesburg Summit 2002 Basic Information 2.
Retrieved from < www.un.org/jsummit/htm/basicinfo/unced.access ed on February 26,2015.
71 The UN Secretary-General Report of the Secretary General on Partnership, Pg 3, delivered to the Economic and Social Council, UN Doc.
E/CN.17/2004/16.
(February 10, 2004).
72 It was the World Bank Group, in collaboration with the Government of Norway that initiated this global public-private partnership to facilitate gas the agreement on Climate Change Convention, the Kyoto Protocol, and the Convention on Biological Diversity (CBD).
The Summit also endorsed the Rio Declaration on the Environment and Development which contained 27 principles to help guide international action and Agenda 21.70 (iv) World Summit on Sustainable Development or Rio + 10 (Johannesburg Summit) which is the fourth major environmental conference held under the auspices of the United Nations since 1972.
The Summit encouraged and recognized a total of 266 partnerships on sustainable development.71 The most significant of which was the Global Gas Flaring Reduction Initiative (GGFR), launched formally at the World Summit on Sustainable Development (WSSD), in Johannesburg, South Africa in 2002, with the objective of reducing carbon emissions and environmental impact of flaring, monetisation of wasted resources, improvement of energy efficiency and access to energy.72The initiative seeks to commercialize and regulate associated gas, implement global flaring and venting standard to obtain carbon credits for gas flaring, flaring projects and harness the support of relevant stakeholders in developing a feasible approach to flare reduction flaring reduction with a view to reducing air pollution, save energy and money, and reduce associated poverty.
The membership consists of government representatives from oil producing countries, state owned companies and major international oil companies who are committed to reducing wasteful and undesirable practices of gas flaring and venting through policy change, stakeholders facilitation and project implementation.
http://www.un.org/jsummit/htm/basicinfo/unced.accessed http://www.un.org/jsummit/htm/basicinfo/unced.accessed Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 38 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... through the Nigerian Flare Reduction Committee (NFRC).73 (v) United Nations Conference on Sustainable Development (UNCSD) assented to the adoption by world policy makers of a series of Sustainable Development Goals (SDGs), to complement the United Nations’ (UN) Millennium Development Goals (MDGs) and aimed at providing the foundation for a global green economy.
(vi) African Charter on Human and Peoples’ Rights74 became part of the law of Nigeria pursuant to its adoption and domestication as Africa Charter on Human and Peoples’ Rights (Application and Enforcement) Act.75 The Charter contains ample provisions on civil and political rights, economic, social and cultural rights, and right to a general satisfactory environment among others.76 On how the provisions of this Charter could help to protect the environment, the case of The Social and Economic Rights Action Center and the Center for Economic and Social Rights .V.
Federal Republic of Nigeria77 is instructive.
Institutional Framework In Nigeria, there are many institutions that regulate, monitor and enforce gas flaring activities in the oil and gas industry.
These institutions state the nature and extent of their 73 Omeke C, A Critique on the Legal Regime Governing Gas Flaring in Nigeria.
74 Adopted 19 January, 1981 by OAU now AU.
It entered into force on 21 October, 1986.
75 Cap 10, LFN, 1990.
76 Articles 4, 16, 24, and 25 among others.
77 See Comm.
No.
155/96 (2001).
In this case, the question as to the role of the provisions of the African Charter on Human and Peoples’ Rights in powers and functions, though with limitations, which invariably have hindered the smooth and efficient running of these institutions.
(i) The Department of Petroleum Resources (DPR) was the first statutory agency established to supervise and regulate the petroleum industry in Nigeria.
In 1975, the DPR was constituted into the Ministry of Petroleum Resources (MPR).
The MPR is responsible for the articulation and implementation of policies relating to petroleum and other mineral resources, excluding solid minerals.
It also maintains standards, monitors quality and quantity and regulates practices in the industry.
The Minister of the MPR is responsible for coordinating the affairs of the MPR and issuing the necessary regulations and permits under the Petroleum Act and other Laws.
In 1977, the MPR and the Nigerian National Oil Corporation (NNOC) were merged to form the Nigerian National Petroleum Corporation (NNPC).78 The Decree also created the Petroleum Inspectorate as an integral part of the Corporation with a semi-autonomous status.
Also, in 1988, the NNPC was commercialized and the Petroleum Inspectorate Division was removed from the NNPC and merged with MPR as the DPR, which became the the protection of the right to a healthful environment was addressed by the African Commission on Human Rights.
This case was a landmark decision because it represents the turning point where the provisions of the Charter were interpreted broadly to incorporate the protection of environment.
78 Decree No.
33 of 1977.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... | 39 inspectorate arm of the Ministry.
The DPR oversees all the activities of oil companies that are granted oil licenses, ensure compliance with applicable laws, enforce safety and environmental regulations and advice government on technical matters and oil related policies.
Corruption and mediocrity are amongst the limitation of these bodies.
(ii) Federal Environmental Protection Agency (FEPA) 79 was established in 1988 to protect, control and manage the Nigerian environment, and make recommendation to the Federal Government on national environmental policies and priorities.
It makes directives requiring government to embark on environmental research, expand and prescribe national regulations and create guidelines for the protection of all aspects of the environment.
During this time, FEPA operated as an agency under the Federal Ministry of Works and Housing.
In 1990s, steps were taken by the government to incorporate environmental issues with development planning.80 Again, in 1999, FEPA was replaced with the Federal Ministry of Environment (FMEnv) with a view to strengthen national institutions for protecting and 79 Decree No.58 of 1988.
80 One of these steps included amending the law governing the creation and mandate of FEPA and subsequently, FEPA was merged with the National Resources Conservation Council (NARESCON) and the Departments of Land and Natural Resources and of Erosion Control under the Ministry of Agriculture, Decree No.
59 of 1992.
81 Ibid 82 Abdulkadir, B.
A., and Yusuf, Z. D., ‘An Evaluation of the Institutional Frameworks on Environmental Protection in Nigeria: Promises conserving the environment.81 FMEnv is saddled with the primary responsibility to protect and improve water, air, land, forest and wildlife of Nigeria.
The Ministry was established to prepare, coordinate and implement environmental policies and programs.
It is also mandated to prescribe standards for and make regulations on water quality, effluent limitations, air quality, atmospheric and ozone protection, and monitor and enforce environmental laws and regulations.82 The FMEnv retains the mandate to evaluate environmental impact assessment prior to the execution of any project.83 In 2007, FEPA Act was repealed and replaced with the National Environmental Standard Regulation (Establishment) Agency (NESREA) Act 2007.
As laudable as this institution’s power and mandate are, it has not effectively exercise these powers because dangerous activities are still permitted to proceed without environmental impact assessment.84 (iii) National Environmental Standard Regulation (Establishment) Agency (NESREA) Act 2007.85 NESREA has the mandate to enforce all environmental laws in Nigeria including international agreement or and Challenges’, (2014) 4 1, Journal of Private and Property Law (JPPL).
83 Federal Ministry of Environment “About the Federal Ministry of Environment” http://www.climatechange.gov.ng/page.accessed on April 16, 2014.
84 Ibada, S. I., “Environmental Protection Laws and Sustainable Development in the Niger Delta” Retrieved from http://www.africanajournal.org./pdf/vol4no1 85 NESREA Act, Published in FRN Official Gazette No.
92 Vol.
94 of July 31, 2007, repealed the FEPA Act Cap.
F.10 LFN 2004. http://www.climatechange.gov.ng/page.accessed%20on%20April%2016 http://www.climatechange.gov.ng/page.accessed%20on%20April%2016 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 40 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... conventions on environmental protection.86 This is in consonance with the requirement and strategy of the National Policy on Environment, which requires the government to put in place legal institutions to protect and manage the Nigerian environment.87 The Agency is authorized to enforce compliance with laws, guidelines, policies and standards on environmental matters,88 and prohibits the release of hazardous substance into the environment without lawful permission and authorization.89 The Agency is also authorized to undertake, coordinate, utilize and promote the expansion of research experiments, surveys and studies by public or private agencies, institutions and organizations concerning causes, effects, extent, prevention, reduction and elimination of pollution and such other matters related to environmental protection and natural resources conservation other than in the oil and gas sector as the agency may, from time to time, determine.90 Although NESREA has a wide mandate to preserve the environment, the agency's power does not cover oil and gas matter.91 Similarly, its power to enforce 86 See Section 7 of NESREA Act, 2007.
87 See Paragraph 7 of the National Policy on Environment 1989 revised in 1998.
88 See Paragraph 7 of NESREA Act.
89 Section 8 (d) of NESREA Act.
90 Section 8 (m) of NESREA Act.
91 Nugent, C., “Review of Environmental Impact Assessment and Monitoring in Aquaculture in Africa” Retrieved from ftp:/ftp.fao.org/docrep/fao/012/i0970e/i0970e01b.
pdf.n accessed on April 16, 2014.
92 See the Constitution of the Federal Republic of Nigeria, 1999 (as amended in 2011).
S. 12(1) of the Constitution is to the effect that no international treaty or agreement has force of law compliance with international conventions and protocols is subject to domestication of such convention.92 (iv) The National Oil Spill Detection and Response Agency (NOSDRA) is also one of the institutions responsible for the protection of the environment.
However, it deals mainly with oil spills and ensures that the oil industries comply with the best practices in their operations.93 Niger Delta Development Commission94 was established to tackle environmental pollution problems associated with the Niger Delta of Nigeria (hereinafter called NDDC Act).
The Commission is empowered to formulate policies, guidelines for the Niger Delta Area and to plan and implement projects and programmes for the sustainable development and other environmental problems in the Niger Delta area.95 Although it appears that the agency has wide powers, it lacks political will,96 it can only make recommendations and not necessarily enforce.97 IV.
CONCLUSIONS AND SUGGESTIONS This study examined the existing legal and institutional frameworks for protecting the environment of the Niger Delta region from gas flaring and the impact of petroleum exploitation on the environment and people unless such have been adopted and passed into law by the National Assembly.
93 Section 5 & 7 NOSDRA Act, 2006.
94 Niger Delta Development Commission Act, Cap.
N 86 Laws of Federation of Nigeria, 2004.
95 Section 7(1) of the Act.
96 By virtue of S. 7(3) of the Act, the Commission is subjected to the direction, control or supervision in the performance of its functions by the president.
This automatically limits it powers especially if the government of the day is corrupt.
97 Nlerum S. Okogbule “The Plight of the Minority Niger Delta IN Nigeria: The Poverty of Protective Legal and Institutional Mechanism” http://www.nigerianlawguru.com/articles/general/ pdf (accessed on March 8, 2014).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... | 41 of the region.
It concluded that, there exist legal and institutional frameworks to curtail gas flaring and pollution generally in the region.
However, review of these laws and amendment of some identified limitations of the agencies is a necessary prelude to a healthy environment as the need to protect the environment has been globally recognized.
It is further concluded that, as much as there is need to give full blown power of enforcement to the existing legal and institutional frameworks, the government still needs to carryout periodic evaluation of these legislations and Agencies with a view to ensure their adequacy and effectiveness.
The following is therefore suggested; The various applicable international conventions and protocols should be promptly domesticated and implemented and Public Private Partnership (PPP) practice should be looked into as an option for effective implementation of the domesticated laws in order to materialize the goals of the international conventions.
Government should take serious steps to stop gas flaring.98 The issue of corruption should be properly addressed in order to achieve results from attempts to stop gas flares and environmental pollution.
Institutions should be decentralized to aid accountability and further strengthened to detecting and nip corruption in the bud as it relates to the oil industry.
It is also suggested that associated gases should be converted to and used as energy sources, only a minute percentage may be flared as obtained in other countries.
To this end, legal obligations must be put in place to ensure that associated gases are utilized judiciously.
Again, all Ministerial certificates that have purportedly allowed flaring must be disclosed by the oil companies, especially now that a new government is taking over power.
The government should not give an option of fine alone as gas flaring should also be criminalized and any corporation that refuses to halt flaring should be shut down.
REFERENCES Book GAS, Global Gas Flaring Reduction Initiative: Report No.
3: Regulation of Associated Gas Flaring and Venting – A Global Overview and Lessons, (World Bank, March 2004).
Ikein, A.
A.
The Impact of Oil on a Developing Country: The Case of Nigeria.
(New York: Praeger,1990).
Ikein, C. R. Shell Shocked: The Environmental and Social Costs of Living With Shell in Nigeria 98 That is, no matter the financial and infrastructural requirements for gas re-injection, gas flaring must be stopped and gas re-injection adopted.
Ladan, M.T.
Materials and Cases on Public International Law, (2007).
Omeje, K High Stakes and Stakeholders-Oil Conflict and Security in Nigeria, (2006) Robinson, D.Ogoni: The Struggle Continues (Geneva: World Council of Churches, 1996) Uyigue, E. and Agho, M. Coping with Climate Change and Environmental Degradation in the Niger Delta of Southern Nigeria, (CREDC, 2007).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 42 | Ijaiya, La-Kadri, Jimoh Institutional and Legal Control of Gas Flaring... Journal Articles Abdulkadir, B.
A., and Yusuf, Z. D. ‘An Evaluation of the Institutional Frameworks on Environmental Protection in Nigeria: Promises and Challenges’, (2014) 4 1 Journal of Private and Property Law (JPPL).
Aghalino, S.O.
‘Gas Flaring, Environmental Pollution and Abatement Measures in Nigeria 1969-2001’, (2009) 11 4 Journal of Sustainable Development in Africa.
Eregha P.B and Irughe I.A.
‘Oil Induced Environmental Degradation in the Nigeria's Niger-Delta’, (2009) 11 Journal of Sustainable Development in Africa.
Ukala, E. ‘Gas Flaring in Nigeria’s Niger Delta: Failed Promises and Reviving Community Voices’, Journal of Energy, Climate and Environment.
Conference Papers Akaakar, F. O.
(1999) ‘The Law and Natural Gas Development in Nigeria,’ in Natural Gas: The Energy for the Next Millennium.
Proceeding of the 29th Annual Conference of the Nigeria Society of Chemical Engineers.
Bassey, N. (2008) Gas Flaring: Assaulting Communities, Jeopardizing the World Rights Action in Conjunction with the Federal Ministry of Environment at Reiz Hotel, Abuja.
Ikelegbe, A.O.
(1993) “Pollution in Nigeria: Causes, Effects and Control: The Case of Delta State.” Paper Presented at the 14th Annual Congress of the Nigeria Geographical Association, Minna, 8 April, 1993.
Nlerum S. O.
(2014) “The Plight of the Minority Niger Delta IN Nigeria: The Poverty of Protective Legal and Institutional Mechanism” http://www.nigerianlawguru.com/artic les/general/pdf, accessed on March 8, 2014.
Nwachukwu, C. (2007) Gas Flaring: Oil Majors Seek extension of Deadline to 2010, The Punch, Lagos, Wednesday 14, November, 2007 Omeke, C. (2011) "A Critique on the Legal Regime Governing Gas Flaring in Nigeria" (Paper presented at the University of Nigeria, Nsuka.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.04 | 57 Functionalization of the Village Head as Customary Leader in the Social Field in South Sumatra Abdullaha, KN.
Sofyan Hasanb, Iza Rumesten RS.c, Taroman Pasyahd aLaw Faculty Of Sriwijaya University Email: abdullahgofar12@yahoo.co.id bLaw Faculty Of Sriwijaya University, Email: kn.sofyan_hasan@yahoo.co.id cLaw Faculty Of Sriwijaya University Email: rumesten_iza@yahoo.com, dLaw Faculty Of Sriwijaya University Email: taromanp@yahoo.com Submitted : 2019-01-05 | Accepted : 2020-04-15 Abstract: The presence of the New Order government has brought about changes in the lowest level of government, which fairly basic leads to some institutional unification and uniformity.
This has resulted in the loss of legal community units in Indonesia.
The loss of indigenous community units began with the beginning of Law Number 5 of 1979 on Village Governance as a follow-up to the birth of Law Number 5 of 1974 on the Principles of Government in the Regions.
Correspondingly, in South Sumatra, the lowest institutional governance tool, which is also a territorial indigenous community unit called Marga was abolished through the Decree of the Governor of South Sumatra No.142/ KPTS/1983.
With the abolition of the Marga, it implies the loss of a typical indigenous institution of South Sumatra, which was merged into the Village institution as stipulated in Law Number 5 of 1979 on Villages.
As a result, all the lowest institutions in South Sumatra switched their names to villages including, their functions and authorities.
The removal of the Marga government and being replaced with the Village, has resulted in the loss of social functions and the function of resolving disputes customarily manner in the community.
The function shift of the village head was not necessarily the transfer of the authority of the pesirah Margahead to the village head in resolving arising problems in the community.
As a result of this obscurity of the function, all arising problems in the community should resolve by the formal public law determined by the state.
This results in an imbalance in the lowest community, including in villages in South Sumatra, to break the chain, the research framework has carried out to answer these problems.
Keywords: functionalization; village head; marga, South Sumatera.
I.
INTRODUCTION Law Number 6 of 2014 on Villages, affirms in article 1 paragraph 1 that the village as a legal community unit that has territorial boundary is authorized to regulate and administer government affairs, the local community interests based on community initiatives, right of the origin, and traditional mailto:abdullahgofar12@yahoo.co.id mailto:kn.sofyan_hasan@yahoo.co.id mailto:rumesten_iza@yahoo.com mailto:taromanp@yahoo.com Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 58 | Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… right which is recognized and respected in the government system of the Republic of Indonesia.
The village has the right of the origin and traditional right in regulating and managing the interests of the local community and contributing to achieving community prosperity.
As the lowest layer of the government structure, community activities in the village should have the opportunity to develop their potential.
Indeed, a village is a necessary and connected part of a hierarchy of state structures, since there will never be a country without having the smallest parts1.
The development of the Indonesian Constitution is inseparable from the history that occurred during pre-independence until postindependence.
Especially for the Village Governance, the long history of its development began with the rule of the Dutch East Indies Colonial Government, namely Island Ministry of Ordinance (IGO) and Inlands Gemeente Ordonnantie Buitengewesten (IGOB) and the rules locally made by each region2.
After independence, the emergence of Law Number 22 the Year 1948 and Law Number 1 the Year 1957 and Law Number 18 the Year 1965 on Regional Autonomy, had maintained the character and feature of the lowest government by the respective local legal community.
However, the presence of the New Order government has brought about changes in the lowest level of government that are fairly basic leads to some institutional unification and uniformity.
The South Sumatra Customary Legal Society recognizes the term levels in which there are superior conventional legal society and subordinate usual legal society, who are subject to the superior customary legal society or indigenous people of the area3.
In the view that applies in indigenous society, not all legal events and violations of law committed and detrimental to fellow conventional law society as well as harming outside society in other customary legal society, must be settled using state law, but better and wiser to use local customary law.
Adat broadly refers to customary laws of different Indigenous groups and is one of the three components of legal plurality in Indonesia alongside Civil Law and Sharia Law.
Adat law is “a complex of rights and obligations tying together history, land law in a specifically Indonesian way, there are no uniform Adat laws as every locality has culturally specific rules to meet the needs of the community4, especially in the social field.
Table 1.
Community Affairs No Customs in the Social Field of Customary Legal Society of South Sumatra Annotation 1 Mutual assistance in opening plantation land (tanahume) Still applicable in some regions 2 Mutual assistance in the alms wedding ceremony Still applicable in some regions 3 Mutual assistance in harvesting plantation products Still applicable in some regions 4 Mutual assistance in building Mushollah and mosque Still applicable in some regions 5 Tepungtawar (foster brother) Still applicable in some regions 6 Keramasandusun (safety prayer for hamlet) Still applicable in some regions 7 Pancung Alas Still applicable in some regions Source: South Sumatra Community Informants 1 Moh.
Fadli dkk, Pembentukan Peraturan Desa Partisipatif (Head To A Good Village Governance), (Malang; UB Press, Februari, 2013), 3.
2 Ni’matul Huda, Hukum Pemerintahan Desa (Dalam Konstitusi Indonesia Sejak Kemerdekaan Hingga Era Reformasi), (Malang; Setara Press, Maret, 2015), 94.
3 Soerjono Soekanto, Hukum Adat Indonesia, ( Jakarta; PT Raja Grafindo Persada, Agustus 2016), 141 4 Boag, Carly, ‘A Comparative Study Of The Legal Frameworks Facilitating Indigenous Land Management In Postcolonial Societies: Indigenous Australia And Indonesian Adat Law’, (2016) 3(2) Brawijaya Law Journal, 125-150 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.04 | 59 Mutual assistance is a form of social field that is a part of customs in the life of the indigenous peoples of South Sumatra, such as jointly establishing places of worship, mutual assistance in the opening of plantation land, and the implementation of weddings.
In certain customary legal societies, when there is an act of adultery relationship committed by a man and a woman (unmarried couple), then both must be responsible for the village by carrying out the “keramasan dusun.” Furthermore, in the South Sumatran customs, also known as the “tepung tawar,” when there is a dispute or problem in the customary legal society.
The settlement of disputes carried out by traditional leaders in the South Sumatra custom society has called by naming or terming "tepung tawar," "ngangkan salah," "bedulur," "bepajar," and others.
The final procession has usually carried out with a ballot and thanksgiving ceremonies in the form of alms from two large families by involving the relevant community and traditional leaders.
In customary law, dispute resolution is not only seen from the interests of public law and private law which stress the principle of justice losing and winning but more that it becomes the authority of the custom leader (Pasirah) who should restore the balance if there is any shock inside the community.
However, by the birth of Law Number 5 of 1979 on Village Governance as a followup to the beginning of Number 5 of 1974 on the Principles of Governance in the Regions, it has eliminated indigenous peoples, or customary legal societies, including in South Sumatra, one of the impacts is the uniformity of all the lowest governance models in all of Indonesia, and the loss of the formal characteristics and features of the society in South Sumatra.
In line with that in South Sumatra, the lowest institutional governance instrument, which is also a territorial indigenous community unit called Marga was abolished through the Decree of the Governor of South Sumatra No.142 / KPTS / 1983.
With the abolition of the Marga, it 5 Kompilasi Adat Istiadat, Banyuasin Sedulang Setudung, (Kabupaten Banyuasin Propinsi Sumatera Selatan; 2015), 2. implies the loss of a typical indigenous institution of South Sumatra and merged into the Village institution as stipulated in Law Number 5 of 1979 on Villages.5 All the lowest institutions in South Sumatra switched their names to villages, including their functions and authorities.
The removal of the Marga government6 and being replaced with the Village brought about the loss of social functions and the function of resolving disputes traditionally in the community.
The function of the village head was not necessarily the transfer of the authority of the surname head to the village head in resolving problems arising in the community.
As a result of the obscurity of the function, all the problems that arise in the community, the solution must use the public formal legal provided by the state.
Such a solution slowly eliminates the sense of togetherness, brotherhood, and feelings of love in the community.
Law Number 6 of 2014 on Villages, the authority of the village head is more directed as a manager who is directed to manage the village government independently with the making of policies based on the principle of subsidiarity, namely the determination of local scale authority and local decision making for the benefit of the village community.
The principle of kinship is the habit of the villagers as part of a large family unit in the village community.
The principle of deliberation, namely the decision-making process that concerns the interests of the village community through discussions with various interested parties.
The principle of democracy, particularly the system of organizing the village community in a system of government, carried out by the village community or with the approval of the village community.
As well as the principle of independence, which is a process carried out by the Village Government and the village community to carry out an activity to 6 Marga adalah kesatuan pemerintahan yang terendah berdasarkan hukum adat.
Ni’matul huda, Note, 93.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 60 | Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… meet their needs with their abilities.7 That the village government is the organizer of government affairs and local community interests in the government system of the Unitary State Republic of Indonesia8.
Based on the description above it can be explained, that with the issuance of Law Number 6 of 2014 on Villages, it has provided enormous opportunities for the Village Government to regulate and run the lowest wheels of government in the Republic of Indonesia's constitutional system independently for the realization of a just, affluent and prosperous society.
With its independence, the Village Head can reinstate customary law in his system of government.
The Village Government led by a Village Head can act and can issue policies, and establish authority.
Then, as a custom leader, the Village Head must regulate and resolve the existence of a law that develops in the community.
Chart I Village Head's Policy and Authority From the chart above can be noted that Law No 6 of 2014 about the village gives a double function to the village head.
The roles are: first as the head of a village that manages the administrative affairs related to the interests of the village, and second as a culture figure ("Adat figure") that helps to control and resolve custom disputes or customary legal issues.
These two duties must be played by the head of the village in organizing and managing the village community.
Both functions are very important to be done by a village head to create peace and prosperity in the region.
Since not all problems arising from the community must have resolved using the state law with the institutions provided by the State.
However, due to the absence of a law that departs from local wisdom, so far, it has required the community to resolve disputes and violations of law by using the state's formal legal channels.
To break the chain, so 7 Moch.
Solekhan, Penyelenggaraan Pemerintahan Desa (Berbasis Partisipasi Masyarakat), (Malang; Setara Press, 2014, Malang), 51. the research framework was carried out to answer the problem.
In other words, this research, is carried out is to help the State in resolving problems that arise from the community, in particular, the people of South Sumatra through the available custom tools; as well as how to function and give a role to the Village Head in the social field in resolving disputes among the people in his area using conventional approaches and settlement, to restore the balance in the society in the national legal order.
In the empirical reality, there are sometimes many problems that arise by the indigenous peoples of Indonesia when customary law has confronted with positive law.
For example, when traditional rights of the community 8 Yusnani Hasyim Zoem et.al, Hukum Pemerintahan Daerah, (Jakarta; Raja grafindo Persada, Maret 2017), 132.
Village Head Law No 6 of 2014 As the Village Head (Policy maker) As the Custom Leader (Regulates/ Resolves any custom dispute) Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… | 61 relate to the interests of investors through state legal means.9 II.
LEGAL MATERIALS AND METHOD This paper use empirical method to answer the legal issues that occur.
Moreover, this paper also used sampling direct interview technique to collect the data in several villages, regency and city in South Sumatra.
The researcher interviews the sources relating the customary law in the interviewees village such as the implementation, development, and practice of customary law in South Sumatra.
The locations of research are located in Banyu Asin Regency; Palu Beruang Village and Kayu Ara Village in Ogan Komering regency; Musi Rawas Regency; Prabu Hamlet Village and Sungai Medang Village in Prabu Mulih City; Lubuk Linggau City; Pagar Alam City.
III.
RESULTS AND DISCUSSION The Village Head Functions a.
Customary Disputes and Development in the Social Field Customary law as a positive law has a typical characteristic that is, considerably unwritten, but its values exist and apply in the lives of the custom society who enforce it.
Customary law applies in a limited scope, that is, only applies to a custom society where the customary law lives or has located, and in this situation, it is very possible that each custom society might have different customary laws from one another, including in southern Sumatera.
This attracts the writer to study more deeply related to the existence of customary law, including disputes that occur in the community that can be resolved only through customary law.
This study is focused only on customary disputes in the field of society and has also directed to areas that were considered capable of providing information relating to any customer disputes that often occur in the community, including: 1) Customary Disputes and Settlements in Banyu asin Regency Table 2.
Customary Disputes and Settlements in Banyu asin Regency No Customary Terms Main Problem Settlement Annotation 1 Bangun (timbang bangun) Has lost someone's life Consensus Giving some money to the family of the deceased 2 Basuh Dusun (tepung dusun) Has occurred Adultery Agreement Consensus; Village Head/and Custom Leaders Slaughtering buffaloes or goats/doing deeds worth to those 3 Tekap malu Has violated the honor of others which is a customary violation Consensus Paying some money as a form of restoring honor in question 4 Tepung tawar Have occurred disputes that violate the custom Consensus Giving in the form of money as a form of peace Data results: based on data taken from informants in two villages in Banyuasin District, namely: Langkan Village and Pulau Harapan Village 9 M. Syamsudin, ‘Beban Masyarakat Adat Menghadapi Hukum Negara’, (2008) 15(3 Juli 2008) Jurnal Hukum, 338-351.
DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.04 | 62 From the list above, we can know that in Banyuasin regency the customary dispute and settlements is still alive.
Annotation: 1.
Bangun (timbang bangun), is a gift in the form of money to the family of the deceased as a result of consensus agreements from the family, which causes the loss of one's life.
2.
Basuh Dusun (tepung dusun), is to implement hamlet offerings by slaughtering buffaloes or goats or to do other acts of equal value with the cost of the offerings based on consensus agreements led by the Village Head/Lurah and Custom Leaders since adultery has occurred, all fees are charged to the perpetrators/families of the local community based on an agreement.
3.
Tekap malu is the giving of a sum of money by someone who violates the honor of another person, which is a customary violation, based on deliberation and consensus to restore the respect concerned and the peace of the community.
4.
Tepung tawar is money paid or goods are given as a result of consensus agreement, which is a form of peace Villagers who choose to solve the legal issues they face by using Adat laws in their area to resolve legal problems in an Adat Law, dependent on the legal issues of what they are facing.
As in the area of banyuasin people can apply customary law in terms of murder (Bangun), adultery (basuh Dusun), violation of other honor (Tekap Malu), and violation of customary (Tepung tawar).
The problem can also be done with the party's concortus so that the two parties can make peace again.
However, there is no prohibition for villagers to choose to use positive laws as a means of resolving the problems they face if they consider the law to be solved legally.
2) Customary Disputes and Settlements in Ogan Komering Ilir Regency Disputes in the area of custom society that occur in Ogan Ilir District are not much different from what happened in Banyuasin District, but the terms and names are a little bit different.
Common disputes and problems in the social field that took place in Ogan Komering Ilir District, among others, data are taken from Pulu Beruang and Kayu Ara Villages, Ogan Komering Ilir Regency.
Table 3.
Customary Disputes and Settlements in Ogan Komering Ilir Regency First Village Pulu Beruang Village in Ogan Komering Ilir Regency Customary Terms Main Problem Settlement Annotation Memegang gadis Has violated the honor of others which is a customary violation Promotion the principle of family Payment of fines made by the perpetrator to the victim, witnessed by the village head, customary leaders and the police.
Data: based on data taken from informants in two PuluBeruang villages in OgankomeringIlir Regency Local people tend to prefer solving problems they experience using local tools or customary law.
By the customs of the local community, the village head is considered capable of resolving disputes and problems that exist without exception.
This is done by the community to prevent and avoid unilateral decisions or arbitrariness that can harm one of the parties to the dispute.
Including the relation to the problem of “memegang gadis,” as above mentioned, the village of Pulu Beruang establishes a customary rule that still maintained today.
When there has been a violation of other people's honor, which is a customary violation, the resolution has settled by custom and family.
Usually, after the issue has resolved, the final result will be taken with a fine to one of the injured parties.
Then, in the payment of the fine, the police also usually included as witnesses besides the relevant parties.
Indigenous peoples have the Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… | 63 same pattern in resolving conflicts in the community, namely controlling life in the community and imposing sanctions if violated, so recovery is very effective.10 Sulastriyono said customary law could also be used as a source of law by judges if the law ordered,11 because customary law as a legal reality is the original Indonesian legal material which is material for the formation of Indonesian positive law.12 3) Customary Dispute and Settlements in Kayu Ara Village in Ogan Komering Ilir Regency Table 4.
Customary Disputes and Settlements in Ogan Komering Ilir Regency Second Village Kayu Ara Village in Ogan Komering Ilir Regency Customary Terms Main Problem Settlement Annotation Land Ownership Do not have a certificate, there are no signs of ownership Consensus and family principle When the landowner can bring witnesses, the land can be said to be legal.
Data: based on data taken from informants in two Kayu Ara Dalam villages in the District of Ogan komering Ilir In line with what has stated above, it is related to the issue of “memegang gadis” in the village of Pulu Beruang, Ogan Komering Ilir Regency, in Kayu Ara village, it also assumed that the chief of village was considered capable of resolving disputes and problems without exception.
Since when a dispute related to land ownership occurs, the settlement is carried out by involving local leaders.
Disputes and settlement of Indigenous debates in the social society that occur in East Ogan Komering Ulu Regency may not be too different from what happened in other regions.
However, the concern is in line with the enactment of Law Number 5 of 1979 on Village Governance.
Then followed by the issuance of the Decree of the Governor of South Sumatra No.142/KPTS/1983 on The Abolition of the Marga Governance.
So, it has an impact on the loss of customary law gradually in custom society, including in East OKU Regency.
The term sanction in English called sanctions, while in Dutch the term sanctie conceptualized as a sentence imposed on the perpetrator, while in the large Indonesian dictionary, sanctions mean: a. Endorsement or confirmation; or b.
Actions or penalties for forcing people to keep agreements or obey laws; or c. Actions (regarding the economy) as a punishment for a country Based on the explanation above, it can explain, that sanctions are penalties set for persons/entities who violate the law, including in customary law, which has sanctioned for anyone who violates local custom prohibitions.
4) Custom Development of Musi Rawas Regency The custom of Musi Rawas Regency is essentially a habit that applies to each custom society and village where the community resides.
With today's development and progress, the customs in Musi Rawas Regency have experienced a shift that sometimes can eradicate the existence of the custom.
10 Desi Tamarasari, ‘Pendekatan Hukum Adat Dalam Menyelesaikan Konflik Masyarakat Pada Daerah Otonomi’, (2002) 2(1) Jurnal Kriminologi Indonesia., 37-47.
11 Lastuti Abubakar, ‘Revitalisasi Hukum Adat Sebagai Sumber Hukum Dalam Membangun Sistem Hukum Indonesia’, (2013) 13(2) Jurnal Dinamika Hukum., 319-331.
12 Sulistriyono dan Sartika Intaning Pradhani, ‘Pemikiran Hukum Adat Djojodigoeno dan Relevansinya Kini’, (2018) 30(3) Jurnal Mimbar Hukum, 449-464.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 64 | Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… Table 5.
Custom Development of Musi Rawas Regency No Existing Customs Extinct Customs 1 Gotong Royong Bringing chicken before the wedding 2 Masak joda saat ada pernikahan Single guitar 3 Angkan-angkanan Drain the river (shared fish harvest) 4 Likokan 5 Dekorasi 6 Senjang Annotation : 1.
Gotong royong, is the custom of the local community, when there are wedding preparations, and takes care of the deceased.
2.
Masakjoda (dodol) done when there is a marriage.
Making joda (dodol) is a symbol of the happiness between the two parties who will hold a wedding party.
3.
Angkan-angkanan, usually done if there are people who have the same name.
So that those who have the same name no longer mention names when meeting but call sename.
This means that the person who has formally represented becomes his own family even though he is not from the family.
4.
Likokan is a single girl event, usually, this event has carried out before a wedding reception.
Then, this activity is also usually carried out and also includes the prospective bride who has been picked up before with permission from the prospective bride's parents beforehand.
5.
Dekorasi is an event carried out by creative local youth and young women to decorate the place where the wedding will take place.
6.
Senjang is an activity that is usually carried out by the Father or the ladies with an answer to the rhyme and accompanied by music.
The list of custom development above in Musi Rawas Regency show that the custom in Musi Rawas still use by the community in the area.
Many existing customs still be part of the local community live until this moment.
For the example, “Gotong Royong” still exist, it usually happened when there are weeding preparation, cleaning the village and almost in every event in the village.
Chart 2.
Customary Sanctions in Musi Rawas Regency Annotation : 1.
Mbayo Dende (paying a fine in the form of money), this customary sanction is usually carried out when there is a violation of local customary prohibitions, including in Musi Rawas, which requires the violator to fulfil the provisions.
Because, these provisions have been discussed beforehand, among the Chief of Village, Customary leaders and the parties related to the case.
2.
Mbasuh Dusun (Sedekah Dusun/Bersih Dusun), sanctions are imposed on people who have had relationships outside of marriage, so that local people assume that the hamlet or their place has been dirty as a result of these actions.
Therefore, the local community is willing the village to be charitable.
3.
Mampos daidusun (leaving the hamlet).
Customary Sanctions Mbayo Dende (paying a fine in the form of money) Mbasuh Dusun (Alms Hamlet/Hamlet Clean) Mampos daidusun (Exiled /expelled) Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… | 65 From the chart above show that the Musi Regency not only have customary law to manage the society activities but also they have customary sanction for the person who violates the customary law.
The customary sanction in Musi Rawas include paying fine (money), Hamlet cleaning, exiled from his/her hamlet.
The amount of sanctions is given based on the type of infringement perpetrators have committed.
Sanctions were decided based on a joint decision between the village head, the customary chairman, and the parties involved.
5) Custom Development in Prabumulih Hamlet Village, Prabumulih City Prabumulih city as one of the cities in South Sumatra, which dissociated itself from the Muara Enim Regency in 2001, however, Prabumulih's status as a municipality, did not immediately eliminate the status of the village, especially the development of customary law that has existed so far.
The development of custom hereunder is taken from Prabumulih Hamlet Village, Kelurahan Prabumulih (Marga Rambang), and Sungai Medang Village, Kelurahan Sungai Medang (Marga Belide).
The custom development in Prabumulih Vilage are: Table 6.
Custom Development of Prabumulih City First Village Prabumulih Hamlet Village No Customary Terms Main Problem Settlement Annotation 1 Kawin Lari Marriage Consensus and family principles To the authorities (police) Presented by each party, then witnessed by the Village Head/ Lurah 2 Rukok panjang Matchmaking Returned to the children, when they are adults 3 Panen padi (ngetam) sedekah kebon A form of gratitude from the event owner 4 Mandi simburan or mandi junub Customary wedding ceremony Using flowers Annotation : 1.
Kawin Lari (belarianor minggat in Rambang language), in some cases, is settled in a family manner.
However, in the Rambang area, it should be noted that there are two kinds of minggat, Minggat Terang is marriages which are regulated by custom, were at the time of the wedding the family wants to deliver out, both the groom and bride, before the wedding is held.
Minggat Gelap is elopement, which cannot be blessed by parents or family.
2.
In marriage customs, the Marga Rambanghas a uniquenesses, one of which is rukok panjang, a type of matchmaking from childhood that is carried out exactly as an adult.
Starting from the customary inter-delivery and clothes worn and guests.
However, this match has returned to the children who will grow up.
If the children still love each other, then the marriage will take place.
However, on the contrary, when these children do not like each other anymore, it does not become a problem for both parties.
From the table above show that several customary law that still exist.
For the example “Kawin Lari” there are 2 way of settlement: first, the consensus between the bride and groom family with the chief of the village as the witnesses or usually as the mediator between the two families.
Second, if the family did not want to settle the customary law, they usually bring the problem to the police.
The other example is “Panen Padi (ngetam) sedekah kebon”, this action is done to celebrate and gratitude toward God from the owner event.
However, even the owner of the farm did not do the Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 66 | Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… customary there is no punishment from the customary law.
6) Custom Development in Sungai Medan Village, Prabumulih City Table 7.
Second Village Sungai Medang Village Customary Terms Main Problem Settlement Annotation Sedekah duson (sedekah dusun) The form of gratitude from the event owner which is carried out once a year Annotation : 1.
Sedekah Duson (sedekah Dusun), is a charity which is held once a year and involves all citizens.
All residents gather in the village hall and then work together to make a meal for the charity.
In the event of a dispute, the settlement has predominantly returned by the custom elders who are mediators to resolve the problem.
Sungai Medang village does not have customary institutions, but, figure or seniority has highly upheld here, and it also has Customary Hall.
In this Sungai Medang village, there is a customary law which is called sedekah mantah.
Sedekahmantah is a form of punishment or consequence for violators of the rules that disturbs the community.
The perpetrators must carry out rituals or obligations to give alms, with one canting rice, one egg, and one coconut.
Then, the custom elders and village officials considered this as remorse, which witnessed by the family who was harmed by the perpetrator.
In SungaiMedangvillage, it also recognizes kualat penalties, meaning that when someone has promised not to do the same wicked thing, but in the future, it turns out that the action has repeated, then the action is called kualat.
In addition to the kualat sentence, there are more penalties in the form of taboos that must not be violated, when someone has done sedekah bimam or sedekah duson.
One of the restrictions is, after the sedekah bimam or sedekah duson, the community must remain silent without any activity for 3 (three) days, even if they hit nails using a hammer.
If the taboo has violated, then there is a moral sanction that will occur, the kualat law will befall the person.
7) Custom Development of Lubuk Linggau City The custom of the City of Lubuk Linggau is essentially a custom that applies to each custom society and village where the community resides.
Customs in Lubuk Linggau City is not very different from the customs that develop in other areas, including customs that exist in Musi Rawas Regency.
However, with today's development and progress, the custom has experienced a shift that sometimes can eradicate the existence of the custom Table 8.
Custom Development of Lubuk Linggau City No Existing Customs Extinct Customs 1 Gotong Royong Bringing chicken before the wedding 2 Masak joda saat ada pernikahan Being paraded around the village after the marriage contract 3 Angkan-angkanan Bridal shower 4 Tepung Tawar 5 Besindo 6 Cuci kampung 7 Senjang Of the many customs in the City of Lubuk Linggau or known as the Sebiduk Semare area, they almost gradually disappeared by the time being.
However, there still many customs exist in the area, for the example is “Cuci Kampung”, this activity usually involving almost all the people in the village to clean the village.
The chief of the village become the leader for the activities in their village.
Every person helps each other to make their village become comfortable and clean.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… | 67 8) Custom Development in Pagar Alam City The people of Pagar Alam City or who are known as the Besemah people are very familiar with customary ways in their daily lives, and even, more they often use customary law as a dispute resolution media compared to positive law.
Customary law that has considered having magical power makes it difficult for local people to abandon the law because, according to some of them when the customary law has abandoned, there will be a disaster due to the anger of the ancestors of the Besemah tribe.
However, the status of the City of Pagar Alam as a municipality does not directly eliminate the status of the village, especially the development of the existing customary law so far.
So that, even though the presence of Lurah who has been wrapped in the nuances of progress and development of the times, it does not eliminate the nuances and developments of prevailing customary law.
Table 9.
Custom Development of Pagar Alam City No Customary Terms Main Problem Settlement Annotation 1 Bersikahduson (hamlet cleaning) Kumpul kebo, adultery Consensus and family principles Slaughter of goats or cows to clean the hamlet from the anger of ancestral spirits 2 Angkan-angkanan keluarga Fights, accidents (died) Consensus and family principles Usually immediately appointed as a brother, or family Annotation : 1.
Bersikah duson is a sanction for cases of cohabiting (adultery) so that those who have carried out these actions are obliged to slaughter animals (cows or goats) that are known by the local community and are attended by the village head and local customary leaders, to avoid ancestral spirit anger according to their understanding.
2.
Angkan-angkanan keluarga, this action is usually carried out when a dispute or death has occurred due to being hit by a car or motorbike.
How the Village Chief Resolves the Disputes in the Social Field Based on the interviews relating to the implementation and practice of customary law in South Sumatra, in particular, in the districts and cities as the sample of this study, it is found that the functionalization of the village head as an official and customary leader in the social field in resolving disputes turned out to prioritize consensus and family principles.
Chart 3.
Dispute resolution by the Village Head First Party Second Party Village Head Customary Leaders Authorities (Police) Village Head’s Decision 1.
Promoting consensus agreement 2.
Upholding family principles Accepting the decision Refusing the decision Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 68 | Abdullah, Hasan, Rumesten, Pasyah Functionalization of the Village Head as Customary Leader… Based on the chart above, the parties to the dispute meet the head of the village to request mediation or to assist the parties in resolving their problems.
The village chief in deciding the matter will take into consideration the family principle and mutual agreement.
However, the parties may receive part or all of the results of the village head's decision.
If either party or both parties do not agree with the outcome of the ruling they may submit their problems to the government authorities who have the authority to complete it such as the police or any other court body.
Moreover, it can explain that the role of the Village Head in resolving cases that arise in the community is very strong.
This is proven by, namely: 1) The community assumes that the village head is responsible for any problems that happen in the community he leads.
In this case the head of the village must be ready to any problem that arise in his/her village.
2) The community considers that the Village Head understands and can solve problems that occur in the community, even solutions that have carried out outside of customary law The head of the village has responsibility to settle the dispute or problem that arise in his/her village.
It could be cause by his/her community; his/her villager with other villager; or other villager with another villager that happened in his/her village.
The Head of village shall be ready to settle the dispute or even cooperate with the other head of the village or even police and prosecutor to settle the problem that beyond his/her authority.
Villagers have a very high trust in the village head because, in solving each problem the village chief always puts forward discussion and upholds the principles of family.
Therefore, if the villagers are faced with legal issues, they first ask suggestions from the head of the village to settle the problem that they are facing, whether it can be resolved through customary law or under the litigation to be resolved using positive law.
The selection of settlement by involving the village chief is considered to be one of the ways to keep citizens ' harmony and undelete can be completed quickly.
Besides, the solution in this way also saves more costs incurred because there is no need to spend costs.
IV.
CONCLUSION Based on the data and information from the field and related to the Functionalization of the Village Head as an Official and Customary Leader in the Social Field in South Sumatra, it can be concluded that, customary law and customs procedures are still applicable and developing in the lives of the people in South Sumatra, Indonesia.
However, since it is not supported by the Indonesia rules and legal basis that governs its existence, so they decrease gradually day by day.
Moreover, the resolution of cases that have occurred in the lives of people in South Sumatra, especially those relating to cases of violation of local customs, has been returned to the Village Government together with the local custom leaders.
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Dictionary and Compilation Kompilasi Adat Istiadat, Banyuasin Sedulang Setudung, Kabupaten Banyuasin Tahun 2015.
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.05 | 209 Population Administration Policy: An Empirical and Juridical Examination Donna Okthalia Setiabudhi1, Toar Neman Palilingan2, Jeany Anita Kermite3 1 Faculty of Law, Sam Ratulangi University Email: donna_setiabudhi@yahoo.com 2 Faculty of Law, Sam Ratulangi University Email: palilingann@gmail.com 3 Faculty of Law, Sam Ratulangi University Email: jeankermite@yahoo.com Submitted : 2018-09-14 | Accepted : 2018-10-26 Abstract: Manado is a city that has a large population, high population mobility and activities in all fields that are increasingly complex.
However, actually it does not have a legal product that regulates population administration technically.
This paper aims to analyse the population administration policies in the city of Manado and propose an ideal policy that can be pursued to establish an appropriate population administration service in this region.
The research is a socio-juridical research.
The method used is descriptive by giving a systematic, factual and accurate description of the issues of research.
The results indicated that population administration services in the city of Manado were still minimal and not optimal because there were no local regulations which accommodate all the typical conditions of communities.
The lack of human resources both in quality and quantity in providing the population administration service to the community and the lack of attention the public to the importance of population administration for their lives, have made inappropriate populatuion administration service.
Thus, it is argued that the existence of local regulations are needed to regulate population administration which can accommodate the conditions of the communities in Manado and can be a reference for the implementers in providing optimal services to the community.
Keywords: administrative law, public policy, population administration I.
INTRODUCTION At this time, public services cannot be separated from human life because it is very needed and closely related to the life of peoples.
In practice, several public service activities have certain characteristics and divided into several types of services and their implementation.
It is argued that although there are existing laws in the privacy on personal data, however, those mailto:donna_setiabudhi@yahoo.com mailto:palilingann@gmail.com mailto:jeankermite@yahoo.com Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 210 | Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… legal frameworks still developed in very sectoral nature.1 Hence, the government as a public service provider and needed by the community must be responsible and continue to strive to provide the best service for the improvement of public services.
One of several services by the local government is population administration services.
This is a very important role in development, where in the population administration system can be known about population data and information that is appropriate to the situation of the population and about the condition of their residential area.2 The event of population requires valid evidence to be administered and recorded in accordance with the provisions of the legislation.
Act No.
24 of 2013 concerning Population Administration affirms that the population administration in Indonesia will be performed through the application of the Population Administration Information System.
Basically, the population administration is closely related to the fulfillment of human rights because every person in the field of population has a right without discrimination.
So it can be said that the implementation of an orderly population administration will support the realization of good governance, optimize democratization and protect human rights in order to improve the welfare of society.
Achieving these conditions is not easy, because it requires complex prerequisites such as legal tools, institutional stability, apparatus capability, regularity of management, availability of financing up to public awareness support.
1 Rosadi, S.D, ‘Protecting Privacy on Personal Data in Digital Economic Era: Legal Framework in Indonesia’ (2018) 5 1 Brawijaya Law Journal, 143 157 One of the strategic factors that must be organized and prepared to serve and effective is a legal basis and can guarantee protection and comfort for the population to obtain legal certainty domiciled in the territory of the Republic of Indonesia in accessing their rights as citizens and as Indonesian.
Legislation required must not be discriminatory, clear (not multi-interpretative), not-contradictory (should be synergistic) with other laws and regulations in public services, so that it can be used as an instrument of population control, and can function to encourage the realization of a modern population administration services with good governance and clean government.
A form of legal product needed is a local regulation.
Manado is a city that has a large population, high population mobility and activities in all fields that are increasingly complex but it does not yet have a legal product that regulates the population administration technically, therefore the author is interested in reviewing the population administration policies in the city of Manado and propose an ideal policy that can be pursued to establish an appropriate population administration service in this region.
II.
LEGAL MATERIALS AND METHODS The research is a socio-juridical research.
The method used is descriptive method by giving a systematic, factual and accurate description of the research issue.
It was conducted in the city of Manado by considering that Manado until now there is no local regulation on population administra2 Hendratno, E. T., & Fitriati, R, ‘The Study of Indonesia’s Readiness To Cope With Demographic Bonus: A Review Of Population Law’ (2015) 30 3 Journal of Indonesian Economy and Business, 195-219.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… | 211 tion.
The data was analyzed through qualitative analysis.
This analysis be based on the theoretical as a key of analysis in explaining the phenomenon of this research.
III.
RESULT AND DISCUSSION Integrated Governance and Population Administration Policy Policy philosophy appears in a pluralistic society like Indonesia.
The community consists of several interest groups and the government is considered as a unifier and has a strong control from all elements of the interest group into an integrated force.
Therefore, to manage a pluralistic society, managerial ability is needed to manage conflicts that may arise due to differences in ethnic, religious, racial, and group backgrounds into useful something for society or nation.
One of the tips for managing a pluralistic process certainly requires a policy in accordance with the wishes of the community and government.3 The policy is usually used in choosing and presenting the most important choices to be made, both in the life of government and private organizations.
The policy is free from the connotations or nuances that are included in political words which are often believed to have a partial notion.4 A policy of decision that applies and characterized by consistent and repetitive behavior, both from those who make it and those who obey it (those affected by the policy).
While public policy is a series of choices that are interconnected (including decisions that do not act) made by government agencies and officials.
3 Musanef, Sistem Pemerintahan Indonesia (Gunung Agung : Jakarta, 1985), 54 4 Ibid 5 E. Koswara, Otonomi Daerah, Untuk Demokrasi dan Kemandirian Rakyat (Yayasan Pariba: Jakarta, 2001) 92 Problems regarding policy are topics that are currently hotly discussed in both industrial and developing countries.
Policy implementation is not just a mechanism for translating policy objectives into technical and routine procedures but also involves various other factors, namely resources, relations between organizational units, the level of bureaucracy to certain political groups who may not approve the policies that have been established.5 This view does not mention the most important factor of a policy that should be a reference to determine whether a policy is implemented or not.
The intended factor is the people or society where the policy will be implemented.
Grindle 6 argues that attempts to explain this diver have led to the realization that implementation, even when successful, involves for more than a mechanical translation of goals into routine procedures, it involves fundamental question about conflict, decision making, and who gets what in a society.
Grindle also stated 2 (two) things that affecting the effectiveness of a policy, namely:7 The first, content of policy which contains interest affected, type of benefits, extend of change environed, site of decision making, program implementors, resourced committed; The second, context of implementation contains power, interest, regime characteristic, compliance and responsiveness.
In the implementation of decentralization, Rondinell and Cheema8 suggests the relationship of factors that influence the implementation of decentralization policy, 6 Ibid, 93 7 Ibid 8 Ibid 95 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 212 | Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… namely 1) The compliance approach; an implementation is considered only a technical and routine problem so that the process of implementation does not contain political elements whose plans have been predetermined by the leaders political.
2) The political approach; that views administration as an integral part that is inseparable from the process of determining the policy in which the policy is changed, re-formulated even the large burden in the process of implementation.
In several notions of authority as mentioned above, the author concludes that authority has a different notion with competence.
9 Authority is a formal power that comes from the law, while competence is a specification of authority, meaning whoever (legal subject) is given authority by law, then authorized to do something in the authority.
In the concept of population administration, the population has the meaning of people who live in the area or people who are legally entitled to live in the area.10 Administration includes activities that must be conducted by executive officers in an organization, serves to regulate, and completing collaborative efforts of a group of people who are deliberately gathered to achieve certain goals.
The notion of administration in a narrow and broad sense, namely:11 a.
In narrow meaning: comes from the word Administratie (Dutch), which includes note or registry, correspondence, minor bookkeeping, typing, agenda etc, which is clerical work.
Thus, 9 I. Fachruddin, Pengawasan Peradilan Administrasi Terhadap Tindakan Pemerintah (Alumni, Bandung, 2014) 4 10 Bappenas, Pembangunan Kependudukan Keluarga Kecil Berkualitas serta Pemuda dan Olah Raga.
(Jakarta2006) it is a small part of the activities of the administration.
b.
In broad meaning: comes from the word Administration (English), is a series of activities or processes of cooperative activities for a group of people to achieve certain goals efficiently The essence of population administration is the recognition of State to the public rights (domicile, relocation) and civil rights (12 important sectors) of the population in the field of population administration.
The population adminis-tration is directed to fulfill the human rights of every person in the field of population administration without discrimination through professional public services.
Population registration is done by recording population data, recording based on the reporting of population events and issuing population documents.
The Examination of Empirical and Juridical to the Policy of Population Administration Population administration is a very important issue because it is in touch with all life activities in Indonesia.
Almost all aspects of community life require population administration, even to register a mobile card needed a population administration.
The issue of population, since independence of Indonesia has experienced problems because there is no administrative link between one and other interests even in ancient times a citizen could have a National Identity Card more than one place because there was no connection between one and another region.
11 S.A. Wahab, Analisis Kebijaksanaan: Dari Formulasi ke Implementasi Kebijaksanaan Negara.
Jakarta : Bumi Aksara,2005), 32 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… | 213 It has caused many difficulties in the administration of the State and government, for example in law enforcement.
Civil registration is the right of every citizen to obtaining an authentic deed from a state official.
An example is a birth certificate.
The child is born without a birth certificate will have difficulties when enters education.
Likewise, in marriage, death and child status.
Many benefits bring legal consequences for a person.
A marriage certificate issued by a civil registry official, has a very big meaning in the future, when something happens.
For example, to determining the heirs or can give directions to the court where he filed for divorce and others that are unwittingly important to the life of person.
The urgency of population administration be a reason the government to issues Act No.
24 of 2013 concerning Population Administration.
Various facilities were provided by this law, the ease in the administering of population documents and the ease in civil registry based on Act No.
23 of 2013, among others: a.
The validity of electronic identity card that initially 5 (five) years changed become lifetime as along there is no change of data in the identity card.
Thus, the population must not difficult extending the validity of their card.
b.
The printing of document/electronic identity card.
Since the implementation of electronic identity card recording in mass, the printing is carried out by the Ministry of Domestic Affairs that centered in Jakarta.
Many people feel difficult to confirm if there is a mistake or occur delay.
As a consequence, many peoples have inappropriate identity card.
To prevent the difficulty in correcting the mistake of data in the identity card, it was planned in quarter III 2014 the printing of document will be delivered to the region.
The local government through the Population and Civil Registry Offices at region level is given authority to print the electronic identity card.
c. The issuance of birth certificate whose reporting exceed 1-year period.
Other easiness in administer the document in the Population and Civil Registry Office related to the issuance of birth certificate whose reporting exceed 1year period.
Initially, the issuance requires the decision of State Court, it changed by the Decision of the Population and Civil Registry Office at region level.
It is in line with the decision of Constitution Supreme dated 30 April 2013. d. The issuance of Civil registry certificate.
Before Act No.23 of 2006 is amended, the recording and issuance of the civil registry certificate is based on the principle where an event occur.
With the new law the principle is amended, namely the principle in the place of domicile of the population.
This is expected to encourage the public to take care of population and civil registration documents; e. Article 44 of this law regulates the reporting of death.
The point is that the reporting of death records which were originally the obligation of the population was changed to the obligation of the head of the environment or another name to report every death of his citizens to the implementing agency (the Population and Civil Registry Office).
With this policy, it is expected that the death record will increase significantly.
Because all this time public awareness to report and/or make death certificates is still relatively low; and Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 214 | Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… f. The active of officers.
The active system which was originally required by the population was changed to an active standard required by the government through officers.
This means that the officer who serves the population administration affairs must be proactive to serve the population.
That is why local governments must actively carry out population administration services.
Above all, various facilities in the law will be effective if further regulated by local regulations considering that local regulations are rules established in the framework of the implementation of local autonomy and with this local regulation it is hoped that population services can be carried out in line with the conditions of each local community but thus the city of Manado apparently did not yet have local regulations on population administration.
The absence of this local regulation is clearly very influential in the implementation of population administration services because it is based on the law with the nature of regulation that is still abstract.
The problem of population administration in Indonesia is a very important role in development, where from the population administration system can be known about population data and information that is appropriate to the situation of the population and the condition of the area where the population lives.12 The Unitary State of the Republic of Indonesia based on Pancasila and the 1945 Constitution of the Republic of Indonesia is essentially obliged to provide protection and recognition of the determination of the personal status and legal status of each population and 12 A Mason, ‘Population change and economic development: What have we learned from the East important event experienced by residents who are inside and or outside the territory the Unitary State of the Republic of Indonesia.
Legal status is given to provide guarantees to residents to obtain justice.
Justice is the goal of law enforcement efforts.
In addition, to the formation of local regulations, efforts to optimize population administration services in the city of Manado must be able to overcome the obstacles that occur.
The government officials in the city of Manado in increasing orderly population administration must take some concrete steps.
This is done to maximize the quality of services provided by the village official which is expected to be able to encourage the public to care more about the importance of orderly population administration.
As described above, efforts are expected to increase orderly population administration in the city of Manado.
But some things often become obstacles to creating quality population administration services.
Some obstacles such as: a.
The lack of community attendance in participating in any counseling carried out by village officials.
The number of people attendance is influenced by the apathy of the community, the busyness of the daily routine of the communities, lack of socialization and minimal level of interaction.
b.
A narrow service room so people have to wait outside the room and cause discomfort.
c. The minimum quantity of employees in serving the community causes queues and processes that tend to be slow.
d. The community has not fully understood the completeness of the document file Asia experience?’ (2003) 1 1 Applied Population and Policy, 3-14.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… | 215 which is a condition in the service process for population administration.
To overcome these obstacles, the government of Manado needs to do several things, including: a.
Always intense to conduct socialization and counseling.
For this reason, the village office distributes invitation to the head of the neighborhood and community leaders so that the peoples were enthusiastic about attending the counseling in the village.
b. Renovating the service room so that it is wider and more comfortable.
The service room is also equipped with air conditioning and a front desk.
c. Increase the number of employees in charge of serving the community to avoid long queues.
d. Besides the socialization and counseling held by the village office, the head and community leaders also took part in informing or giving understanding about the completeness of the document file.
It presents that in the population administration service in the city of Manado, there is no optimal service system because there is no substance in the local law that governs, the implementation of the duties of local government officials in population problems is not yet clear and community support is not optimal so needs issues the local regulations immediately that fulfill the requirements by taking into account the principles of the establishment of good local regulations in order to support optimization in implementation.
IV.
CONCLUSION AND SUGGESTION In Manado, the population administration services are still not optimal because there are no local regulations issued or established to accommodate all the unique conditions of communities.
The lack of human resources both in quality and quantity in providing the population administration service to the community and the lack of attention the public to the importance of population administration for their lives, have made inappropriate populatuion administration service.
Thus, it is recommended to have local regulations to regulate population administration which can accommodate the conditions of the communities in Manado and can be a reference for the implementers in providing optimal services to the community.
REFERENCES Books Bappenas, Pembangunan Kependudukan Keluarga Kecil Berkualitas serta Pemuda dan Olah Raga (Jakarta: Bappenas, 2006) Fachruddin, I, Pengawasan Peradilan Administrasi Terhadap Tindakan Pemerintah (Alumni, Bandung, 2004) Koswara, E., Otonomi Daerah, Untuk Demokrasi dan Kemandirian Rakyat (Yayasan Pariba: Jakarta, 2001) Musanef, Sistem Pemerintahan Indonesia (Gunung Agung : Jakarta, 1985) Wahab, S.A., Analisis Kebijaksanaan: Dari Formulasi ke Implementasi Kebijaksanaan Negara.
(Bumi Aksara: Jakarta, 2005) Journal Articles Hendratno, E. T., & Fitriati, R ‘The Study of Indonesia’s Readiness To Cope With Demographic Bonus: A Review Of Population Law’ (2015) 30 3 Journal of Indonesian Economy and Business Mason, A.
‘Population change and economic development: What have we learned Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 216 | Setiabudhi, Palilingan, Kermite Population Administration Policy: An Empirical and… from the East Asia experience?’ (2003) 1 1 Applied Population and Policy Rosadi, S.D.
‘ Protecting Privacy on Personal Data in Digital Economic Era: Legal Framework in Indonesia’ (2018) 5 1 Brawijaya Law Journal
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.09 | 261 Pornography and Sexual Crimes towards Children in Indonesia: A Judicial Approach Faizin Sulistio1, Nazura Abdul Manap2 1Faculty of Law, Brawijaya University Email: faizin@ub.ac.id 2 Universiti Kebangsaan Malaysia, Malaysia Email: nazura@ukm.edu.my Submitted : 2017-10-05 | Accepted : 2018-10-25 Abstract: Pornography and sexual crimes against children are two forms of crime in Indonesia.
Both of these crimes in various cases have a linkage with each other, whether one of which is a crime or pornography becomes a criminogenic factor for the onset of sexual crimes against children.
The review in this article attempts to look at the approach used by judges in deciding cases of sexual crimes against children that correlate with pornographic crimes.
This research employs normative juridical research using legislation and case approach.
The results of the review found that, in sum, there are two model of approach used by the Court in deciding criminal cases, especially pornography related to sexual crimes, which include the approach in understanding and assesing cases; and theories of punishment approach.
While the rfirst model of approach emphasizes on the understanding the impact of the action, the secodn model look more at the retaliation, prevention, combination and contemporary approach.
It is further argued that those two models are not necessarily used separately.
The combination of the two models can also be employed, such as in the case of Tanjung Pati District Court's Ruling no.
58 /Pid.B/ 2011 /PN.Tjp.
In fact, in the case, the judges combine several approaches in deciding cases and punishing defendants.
It is submitted that the objective of a judge is crucial since the objectivity resulted in a fairer verdict for the victim, the community or the perpetrator himself.
Keywords: pornography, sexual crime, decision approach, punishment approach, judicial approach I.
INTRODUCTION In mid-March 2017, Indonesia was struck by the uncovering of networks of perpetrators of pornographic and sexual crimes targeting child victims.
This network utilizes fanpage groups on the Facebook social network to create Official Loly Candy's 18+ account.
This group account is suspected to be a place for pedophiles and pornographers to interact and disseminate pornographic content with children as the objects.
The group is managed by four mailto:faizin@ub.ac.id Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 262 | Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... perpetrators who are currently detained and named as suspects by investigators.
2 of the four perpetrators were the children of M. Bachrul Ulum (Wawan aka Snorlax), DF (TDay), Dede and SH.
The name of this group is a term commonly used by pedophiles.
Loly is a candy that is identical with children.
Thus, the pedophiles interpret children as a loli or candy that could give pleasure, the pleasure in realizes sexual abnormalities.
The main requirement of being a member of this group is the obligation to upload pornographic content, especially child pornography.
In its criminal acts, the perpetrator not only shares pornographic images and videos but also sexually assaulting the children.
The perpetrators also record the video during their action and then share it to the fanpage members.
Investigators from Metrojaya Police reported that there are still other unidentified victims and perpetrators1.
Sexual violence in children may strongly cause a physical or emotional disturbance which affecting in their future growth and development2.
The prevalence of sexual assault cases against children increases in every year.
According to the Commission of Child Protection in Indonesia, in 2013, the number of sexual assault cases against children was 1445 cases, and not significantly different in 1 http://www.dw.com/id/loly-candy-di-facebookterungkap-pedofil-masih-jadi-ancaman/a37985355 (March 20, 2017) 2 Abu Huraerah, Kekerasan Terhadap Anak (Nuansa Cendikia, Bandung, 2012) 44.
3 KompasTV, https://www.youtube.com/watch?v=PaL21SNpfY E, 10 Maret 2017, (March 10 2017) 4 BeritaSatuTV, https://www.youtube.com/watch?v=RPtzYvuNl88, 10 Maret 2017, (March 10 2017) 5 Brian Fitzgerald, ‘Software as Discourse: The Power of Intellectual Property in Digital Architecture’ (2000) 18 Cardozo Arts and Entertainment Law Journal 337, 353; Gutnick 2014 (1423 cases).
Surprisingly, in 2015 the number of cases was markedly increase become 1,718 cases3.
The victims including 1443 cases in kindergarten and elementary school students, 498 cases in junior high school students, 513 cases in senior high school and 13 cases in school dropped-out children4.
The phenomenon of loly candy is a necessity in the cyberspace, where there is a relationship between the criminal act of pornography and sexual crime.
Cyberspace is also a sovereign electronic place with individuals, communities, corporations or governments without state restriction5.
Jessica Lipnack and Jeffrey Stamp described the cyberspace as "smash the boundaries, tear down the hierarchy and dismantle the bureaucracy”6.
Cyber space is a global communication medium which is enabled to transform the information and communicate between individuals7.
For the perpetrators of criminal acts of pornography and pedophilia, this also become a medium to interact with others who have the same sexual disorder.
A review of court decisions has often been found in various studies aimed at improving the process of legislative drafting.
This is understandable because court decisions are based on the community's actual conditions in responding to state law.
Based on the phenomenon and legal cases (2002) 194 ALR 433; Lawrence Lessig, ‘The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harvard Law Review 501.
David Johnson and David Post, ‘Law and Borders — The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.
6 Jessica Lipnack & jeffrey Stamps, The Age of the Network, Organizing Principle for the 21st Century (New York : John Willey & Sons, Inc, 1994), 3.
7 Green Paper, entitled ‘A Proposal to Improve Technical Management of Internet Names and Addresses’ can be found at http://www.ntia.doc.gov/ntiahome/domainname/d nsdrft.htm.
Accessed on March 23, 2010. http://www.dw.com/id/loly-candy-di-facebook-terungkap-pedofil-masih-jadi-ancaman/a-37985355%20( http://www.dw.com/id/loly-candy-di-facebook-terungkap-pedofil-masih-jadi-ancaman/a-37985355%20( http://www.dw.com/id/loly-candy-di-facebook-terungkap-pedofil-masih-jadi-ancaman/a-37985355%20( https://www.youtube.com/watch?v=PaL21SNpfYE https://www.youtube.com/watch?v=PaL21SNpfYE https://www.youtube.com/watch?v=RPtzYvuNl88 http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.htm http://www.ntia.doc.gov/ntiahome/domainname/dnsdrft.htm Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... | 263 related to sexual crimes caused by pornography, then the author conducted a study of the judge's decision in settling the case.
This study attempts to examine court decisions on related sexual crime cases and/or is associated with pornography.
From the background described above, the authors tried to study about the court's decision in sexual crime cases related to pornography crime and the approach as a priority for judges in deciding cases of sexual crimes related to pornography.
This study was based on a normative juridical study by examining retio decidendi from the judge's decision.
II.
LEGAL MATERIALS AND METHODS This research adopted a normative juridical method.
It relies heavily on existing laws and legal frameworks concerning pornography and sexual crimes againts children.
The research using statute and case approach in its discussions.
The legal frameworks used in this research is criminal law legal framework, especially Indonesian Criminal Code and Indonesian Act Number 44 Year 2008 on Pornography as well as Indonesian Act Number 35 Year 2014 concernig Child Protection and Act Number 48 Year 2009 on Judicial Power.
The analyses used the case of Tanjung Pati District Court's Ruling no.
58 /Pid.B/ 2011 /PN.Tjp as specific case on children pornography.
III.
RESULTS AND DISCUSSIONS Pornography Concept and Sexual Assault in Indonesia Discourse on pornography as a deviant act is strongly influenced by the moral values recognized by a society.
The concept of pornography that is formed is also closely related to the sense of decency in society.
In a liberal country that greatly upholds individual freedom, pornographic activity is not a deviant act and not classified as a criminal act.
This has become a distinguishing feature in the process of criminalizing pornography in Indonesia compared to other (western) countries.
Pornography in Indonesia emphasizes on the relation between morality in society and law.
Thus the context of pornography is limited by other rules of social control such as customary law and religion.
In Indonesia criminalization of pornography is listed in article 282 of the Criminal Code and article 1 (1) of Act Number 44 Year 2008 on Pornography.
The forms of pornography are described in more detail in article 1 (1) of Act Number 44 Year 2008, as follows: "Pornography is a drawing, sketch, illustration, photo, writing, sound, sound, motion picture, animation, cartoon, conversation, gesture, or another form of message through various forms of communication media and/or public performances, containing obscenity or Sexual exploitation that violates the norms of decency in society" The definition of pornography as in the above article is a business that became a social consent to harmonize technological developments with new forms of pornographic activity.
While sexual assault in the Criminal Code has several definitions such as criminal acts of decency specifically related to sexual violence.
Sexual assault, in this case, is an obscene act committed by an adult or perpetrator against children as stated in Article 287 of the Criminal Code.
In addition, the prohibition of sexual intercourse on immature women may cause injury, serious injury, and death as regulated in article 288 of the Criminal Code.
In Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 264 | Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... addition to articles 287, 288 and 289 of the Criminal Code, sexual assault in the Criminal Code is also regulated in articles 290,291, 292, 293, 294 and 295.
Concept of Judge's Decision A judge is defined as a public official who has the authority to hear and decide on a legal matter in court8.
The judge is also etymologically interpreted as an official who discovers, introduces and explains the law9.
The decision refers to some terms including decision, judgment, verdict, finding and ruling10.
Black’s Law Dictionary defines judgment as a court’s final determination of the right and obligation of the parties in a case.
While the verdict is a jury’s finding or decision on the factual issues of the case or a judge’s resolution of the issues of a case11.
While the definition of a judge in Act Number 48 Year 2009 on Judicial Power is a person who examines cases in court according to law fairly without discriminating people on different tribes, religion, race, position, and wealth.
In this context, judges have the authority to uphold justice and law enforcement.
As the enforcers of justice, the duty of the judge is to uphold justice (gerechtigdheid) not merely a certainty (rechtzekerheid).
Justice based on the Belief in God Almighty.
Even in Indonesian courts, judges in making decisions must be preceded by the words "for justice based on God Almighty".
The meaning of judgment with justice based on God Almighty is that every decision must be based on the laws and beliefs that are felt on a good conscience.
A good conscience 8 Garner, Bryan A, Black’s Law Dictionary (West Publishing co, St. Paul, 2009), 916.
9 Abdul Aziz Dahlan et al, Ensiklopedia Hukum Islam,Ichtiar Baru (Jakarta, 2001), 503. is a conscience that reflects the social conditions of society which has a sensitivity to the social conditions of society that leads to a sense of justice in the community.
Meanwhile, as a legal authority, the duty of judges is to enforce regulations in law that have been violated by the perpetrators.
In the context of this law enforcement, the constraints of judges are when the law is not in accordance with the social dynamics anymore.
John Rawl stated that the trial in court is an imperfect justice procedure.
Although the law is implemented according to the procedure, the result could be wrong.
The possibility of mistakes in judicial decisions because laws are less likely to follow social dynamics.
Therefore, it provides the basis for judges to either to form law (rechtvorming) or discover the law (rechtvinding).
In this context court judges have the following functions: a.
Ensuring that one designation is applied appropriately and fairly.
Whereas the judge's conscience is convinced that the application of existing laws can lead to injustice, then the judge is obliged to support justice rather than simply making the rules as the ever-true book.
b.
As the interpreter of the designated arrangement by adopting the method of interpretation and consider the sociocultural aspects and also arrange a provision relevant to the condition of society.
c. Conducting an act of correction of an error or legal void.
The judge in this context must find and create the law by enacting the law.
10 Alan M. Stevens dan Schmidgall, Comprehensive Indonesian-English Dictionary (Ohio University Press, Ohio, 2004), 792.
11 Garner, Bryan A, Black’s Law Dictionary (West Publishing co, St. Paul, 2009), 1968.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... | 265 d. Performing enhancements to a rigid designation arrangement in order to provide a reasonable justice.
In addition, in relation to rechtvinding or legal discovery by judges, a law expert Van Eikema Hommes defines the process of legal development by a judge in a single legal event.
This involves applying an abstract rule to a concrete event12.
This is a form of judicial discretion which is the policy of judges in making decisions based on the principles of law and an independent mind in order to give a fair decision13.
The judge as the determinant of justice will be seen as a person who knows all laws or jurists (ius Curia Novit).
Thus, although there are still no rules in some cases, the court (judge) must make a decision.
This concept in European continental court tradition is known as the invention of the law (rechtsvinding) or creating law (rechtsschepping).
This concept is a manifestation of the principle that the court should not reject any proposed case.
A judge in Indonesia should refer to three stages in exercising the authority, namely: the stage of fact verification, case eligibility, and case assessment.
In the stage of fact verification, a judge must carefully observe, acknowledge or justify the case.
While in the stage of eligibility, a judge should judge a case that actually happens and categorizes it to a particular legal section.
The judge must find the appropriate law for a confirmed case.
While the last stage is the judge must give legal arguments which 12 Sudikno Mertokusumo, Bab-Bab tentang Penemuasn Hukum (Aditya Bakti, Bandung, 1993), 4 13 Frans Hendrawinata, Mencegah Judicial Corruption melalalui Eksaminasi Publik, Mungkinkah?, in Susanti Adi Nugroho dkk, Eksaminasi Publik: Partisipasi Masyarakat Mengawasi Peradilan (ICW Jakarta, 2003), 14. involve applying the law to the case by the method of a syllogism with the following steps: 1.
Analyzing the legal norms to determine the elements contained in the contents of the norm; 2.
Analyzing the case to determine the elements in the case; 3.
Comparing the elements in the legal norm with the elements present in the case to construct deductive conclusions.
From some court decisions, there are several approaches used by judges to make decisions.
The first approach relates to the assessment and the description of the case and the second approach refers more to criminal prosecution.
An approach which is related to the full assessment of a case including: 1.
Understanding Approach This approach is very close to the interpretation of the law through hermeneutics.
According to Max Weber, this understanding approach is an analysis of the symbol system.
This approach allows people to appreciate the other's beliefs without prejudice.
Verstehen tried to make an understanding of a case by re-experiencing or reviewing experiences14.
This concept assesses the desired motive of person’s actions (in-order to motive).
Therefore, to understand the actions of a person, it is crucial to examine and analyze the person’s motive15.
14 Wilhelm Dilthey, Selected Works: Hermeneutics and the study of history, Selected Work Volume 4 (Princenton University Press, 1985), 159-161 15 Muhammad Basrowi, Teori sosiologi dalam tiga paradigm (Yayasan Kampusina, Surabaya, 2004), 60 http://www.google.co.id/search?hl=id&tbo=p&tbm=bks&q=bibliogroup:%22Selected+Works%22&source=gbs_metadata_r&cad=2 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 266 | Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia...
The understanding approach in making this decision is in line with the opinion of Judge Oliver Wendell Holmes Jr. who states that in making judgments in court is not merely a process of mathematical and mechanical syllogism.
However, it has a broad meaning.
The life of the law has not been logic; It is has been an experience.
The felt necessities of the time, the prevalent moral and political theories, the institution or public policy avowed or unconscious, even the prejudice share with their fellow.
2.
The Action Impact Approach This approach is used by the court by assessing the indirect impact of acts perpetrated by the perpetrator.
This approach can easily be known from the judge's argument that the perpetrator's actions have damaged the morale of the community, especially the younger generation.
In Courts cases, this approach is commonly used on perpetrators who trade in pornographic items such as VCD or DVD.
For example, the Ruling of District Court Bandung No 1096 / Pid.B / 2010 / PN Bdg with the defendant Jhon Deardo Sipayung16 who was arrested by the police for selling pornographic items which are VCD and DVD.
A similar case was the decision of District Court Ngawi No 310 / Pidsus / 2011 / PN.
NGW in the case of Wahyudi bin Isbani who was sentenced to 8 months for selling pornographic items to his cellular store customers.
The court verdict with an action impact approach illustrates that the court will refer to the moral values in society in making the decision.
This case is in line with Tamanaha who reported about mirror thesis which 16 District Court Verdict Bandung No 1096/Pid.B/2010/PN Bdg 17 Brian Z Tamanaha, A General Jurisprudence of Law and Society (Oxford University Press, Oxford, 2006), 1-3. means that every judge's decision becomes a reflection of the will of the people in using the law17.
Judge Holmes also declared the judge's decision bring the character of cultural relativism.
Every judge's decision is a reflection of judges' experience related to behavior, morality, and wisdom.
Holmes further stated that the law embodies the story of nation's development through many centuries, and it contains only the axioms and collections of a book mathematics18 In addition to the approach that emphasizes in understanding and assessing the cases, the next approach is more to the theories of punishment purposes, namely approaches of retaliation, deterrence or prevention.
3.
Retaliation Approach Approach to retaliation of criminal acts appears in the classical era of criminal law.
The theory that uses punishment to retaliate the perpetrators is known as an absolute theory.
According to absolute theory, retaliation is a justification for punishment.
In this context, the state is entitled to impose appropriate penalties because the perpetrator has violated the state's law.
A Dutch legal expert Vos stated that in seeking the basis of criminal prosecution, the criminal act itself is seen as the basis of the punishment of the perpetrators of criminal acts.
The use of this approach is rarely used except in certain cases that attract public attention.
The case of pornography with the defendant Ariel on the decision of the District Court and the High Court implies an attempt to satisfy the grudge of society.
In the case of Riga Antoni Putra19, the perpetrator was charged with disseminating 18 Oliver Wendell Holmes, The Common Law (Little Brown, Boston, 1963) see also Julius J. Marke, The Holmes reader (Oceana’s Docket Books, 1955), 65-70.
19 District Court Verdict Tanjung Pati No.
58 /Pid.B/ 2011 /PN.Tjp.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... | 267 his sex video clip with Lidya who was still 14 years old.
The court sentenced the perpetrator to 7 years imprisonment and a fine of 250 million rupiahs.
The perpetrator started to get acquainted with the victim, Lidya by phone.
After 2 months of a relationship, the perpetrator invites Lidya to had sexual intercourse at perpetrator’s house in Payakumbuh.
The perpetrator recorded their sexual intercourse by using a cellular phone.
The recording was then used by the perpetrator to threaten the victim to have sex with him again.
The perpetrator and the victim then had sex for 14 times and recorded it.
The perpetrator began to spread the video to his friends through his phone, and to the Lidya’s teacher so that the victim was expelled from school.
This case showed the relation between pornography and sexual crime to the children make the judge impose severe punishment to the perpetrator.
The approach of retaliation is also more visible when there are two crimes that occur.
On the other hand, Angga Ryan Saputra20 was accused of recording and spreading sexual intercourse in children on the Internet and only sentenced to 9 months in prison.
4.
Prevention Approach This approach emerges from relative theory.
In this theory, the basis of punishment is the enforcement of the order in society.
The purpose of the punishment in this theory is to prevent crime in society.
The relative theory may also be called relationship theory or objective theory.
This is because the relationship between injustice and punishment is related to the desired purpose of punishment which is to provide legal protection and prevent injustice.
20 District Court Verdict Kandangan 114/Pid.B/2012/PN.Kgn This approach can be found in the decision of District Court of Rengat No 178 / Pid.B / 2013 / PN.
RGT with defendant Ardiansyah bin Suryadi.
In this case, the perpetrator was charged with article 45 (1) of Law No.
11 of 2008 on ITE to article 65 (1) of the Criminal Code.
This section states that the perpetrator committed a crime intentionally and without the right to make access to information that violates decency.
At first, the perpetrator got acquainted with the victims, Maria and Ine Alivia via Facebook.
Without the consent of the victim, the perpetrator downloaded the victims’ picture from their facebook.
The picture was edited by taking the victims’ face and pasting it on another naked picture.
The perpetrator then informed the victims that in the blog entitled "Cewek Bispak Rengat Part II" there were their pornographic images.
Then the perpetrator said that the pictures can be removed if the victims pay to the perpetrator of 100.000 IDR.
Because the victim did not want to pay, the perpetrator in March 2012, uploaded 4 more pornographic images of Maria and 4 porn images of Ine Avilia to his Blog.
The perpetrator also extorted the victims to immediately pay of 900.000 IDR.
The victims than reported him to the police.
In its verdict, the Panel of Judges stated that the behavior of perpetrators who manipulated person’s images to pornographic images and extorted the victims are criminal acts which have no excuses of forgiveness and justification.
Thus, the court ruled that the perpetrator was sentenced to 1 year and 4 months in prison.
This severe punishment was imposed by the court to prevent perpetrators from repeating Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 268 | Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... their actions and preventing people from committing the same crimes as criminals.
5.
The Combined Approach The combined approach is a combination of both approaches of retaliation and the prevention approach.
The purpose of this approach is to combine retaliation and make an order in society.
This is in line with the maxim puniendis nemo est ultrameritum, intra meriti vero modum magis aut minus peccate piniuntur pro utilitate which means that sorrow is a natural thing to be borne by the perpetrators of criminal acts, but the severity of punishment to the perpetrator is limited to social benefits.
This is in line with the maxim who stated that natura ipsa dictat, ut qui malum fecit, malum ferat which means that nature gives the teaching that anyone who commits a crime, they will be exposed to sorrow.
It's not a sorrow as revenge but also maintaining public order21.
This combined theory is able to give a balance in punishment to the perpetrator by giving an appropriate retribution to provide a protection to the law.
This approach can be referred to Tjandra Adi Gunawan22 case in District Court Surabaya.
This case was started from the perpetrator who created a fake Facebook account with the name Evi Urwatul Wusqo.
The perpetrator admitted in Facebook that he was a woman and worked as an obstetrician at Mitra Keluarga Hospital Cibubur.
Through the account, the perpetrator in early November 2013 sent a friend request to victims of Fedorika Yaphilia, Stephanie Caroline, Ivana Wardana, Devina Dea and Merry Merlina Renata.
They were still 12 years old and 21 Jan Remmelink, Hukum Pidana: Komentar Atas Pasal-Pasal Terpenting dalam KUHP Belanda dan Padanannya dalam KUHP Indonesia (Gramedia Pustaka Utama, Jakarta, 2003), 611 enrolled as a 5th grader at Petra 9 Christian Primary School Surabaya.
The perpetrator then communicated with the victims and requested a naked picture of the victims to check the health information such as the stage of reproduction, menstruation, and prevention of breast cancer from their naked images.
Then, the victims were interested and send the naked pictures to the perpetrator.
After that, the perpetrator made several new Facebook account named Iveyaphilia and Hen Wei.
Through this Facebook account, the perpetrator uploaded naked pictures of the victims.
The perpetrators also uploaded the pornographic images in the victims’ school Facebook account.
This made the school report the perpetrator to police.
In its verdict, the panel of judges stated that the sentence imposed to perpetrator has given a sense of justice by giving an indication that the court has given appropriate retaliation to the perpetrator's actions.
The punishment also psychologically prevent perpetrators from repeating criminal acts and preventing people from committing criminal acts, especially in the pornographic crime of children.
6.
Contemporary Approach This approach tries to restore the future of the perpetrator by improving the behavior of the perpetrator.
The purpose of this approach is the perpetrators can be accepted in the society after serving the punishment.
This approach is a form of separation from punishment as punishment (poenae ut poenae) and punishment as a medicine that can recover or heal (poenae ut medicine).
22 District Court Verdict Surabaya No 2191/Pid.B/2014/PN.Sby Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia... | 269 This approach is used in the Supreme Court's verdict No.
1607K / Pid.
Sus / 2008.
In this case the victim and the perpetrator are children.
This case began when the perpetrator X saved and showed the pornographic images of the victim on the perpetrator's computer to 5 witnesses which are all brothers.
In addition, the perpetrator showed the picture to witnesses 6, 7 and 8 which were a friend of a perpetrator's school and the victim.
All the witnesses shown were still children.
The perpetrator was charged with article 283 of the Criminal Code which has and publicly displayed images or objects that violate morality to children23.
In this case, the approach was very considerate of the circumstances perpetrator who was still a children.
Even the Supreme Court only sentenced the perpetrator for 6 months with a trial period of 9 months.
This means that the perpetrator did not need to serve in a prison for 6 months if during the trial period of 9 months the perpetrator did not repeat the crime.
Whereas in cases involving children and perpetrators are adults, the courts always sentenced a heavy punishment to perpetrators.
IV.
CONCLUSIONS AND SUGGESTIONS This research concludes that there are two models of approach used by the Court in deciding criminal cases, especially pornography related to sexual crimes.
The first model relates to the effort to understand and assess cases and the second model relates to the theories of punishment.
Approach with first model is approach of understanding and impact of action.
Furthermore, approach related to the theory of punishment is the approach of retaliation, prevention, combination and contemporary approach.
23 Supreme’s Court Verdict MA No 1607K/ Pid.
Sus/ 2008 REFERENCES Books Basrowi, Muhammad Teori Sosiologi dalam Tiga Paradigm (Yayasan Kampusina, Surabaya, 2004) Dahlan, Abdul Aziz et al, Ensiklopedia Hukum Islam (Ichtiar Baru, Jakarta, 2001) Dilthey, Wilhelm, Selected Works: Hermeneutics and the study of history Selected Work Volume 4, (Princenton University Press, 1985) Garner, Bryan A, Black’s Law Dictionary (West Publishing co, St. Paul, 2009) Hendrawinata, Frans, Mencegah Judicial Corruption melalalui Eksaminasi Publik, Mungkinkah?, in Adi Nugroho Susanti (ed) Eksaminasi Publik: Partisipasi Masyarakat Mengawasi Peradilan (Jakarta, 2003) Holmes, Oliver Wendell, The Common Law (Little Brown, Boston.
1963) Huraerah, Abu, Kekerasan Terhadap Anak (Nuansa Cendikia, Bandung, 2012) Lipnack, Jessica & Stamps, Jeffrey The Age of the Network, Organizing Principle for the 21st Century (New York : John Willey & Sons, In, 1994).
Marke, Julius J The Holmes Reader (Oceana’s Docket Books, 1995) Mertokusumo, Sudikno, Bab-Bab tentang Penemuasn Hukum (Aditya bakti, Bandung, 1993) Remmelink, Jan Hukum Pidana: Komentar Atas Pasal-Pasal Terpenting dalam KUHP Belanda dan Padanannya dalam KUHP Indonesia (Gramedia Pustaka Utama, 2003) Stevens, Alan M. dan Schmidgall, Comprehensive Indonesian-English http://www.google.co.id/search?hl=id&tbo=p&tbm=bks&q=bibliogroup:%22Selected+Works%22&source=gbs_metadata_r&cad=2 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 270 | Sulistio, Manap Pornography and Sexual Crimes Towards Children in Indonesia...
Dictionary (Ohio University Press, Ohio, 2004) Tamanaha, Brian Z, A General Jurisprudence of Law and Society (Oxford University Press, 2006) Journals Articles David Johnson and David Post, ‘Law and Borders — The Rise of Law in Cyberspace’ (1996) 48 Stanford Law Review 1367.
Fitzgerald, Brian, ‘Software as Discourse: The Power of Intellectual Property in Digital Architecture’ (2000) 18 Cardozo Arts and Entertainment Law Journal 337, 353 Gutnick (2002) 194 ALR 433.
Lawrence Lessig, ‘The Law of the Horse: What Cyberlaw Might Teach’ (1999) 113 Harvard Law Review 501 Internet Resources http://www.dw.com/id/loly-candy-difacebook-terungkap-pedofil-masihjadi-ancaman/a-37985355 (20 Maret 2017) KompasTV, https://www.youtube.com/watch?v=Pa L21SNpfYE, 10 Maret 2017.
BeritaSatuTV, https://www.youtube.com/watch?v=RP tzYvuNl88, 10 Maret 2017 http://www.dw.com/id/loly-candy-di-facebook-terungkap-pedofil-masih-jadi-ancaman/a-37985355%20(20 http://www.dw.com/id/loly-candy-di-facebook-terungkap-pedofil-masih-jadi-ancaman/a-37985355%20(20 http://www.dw.com/id/loly-candy-di-facebook-terungkap-pedofil-masih-jadi-ancaman/a-37985355%20(20 https://www.youtube.com/watch?v=PaL21SNpfYE https://www.youtube.com/watch?v=PaL21SNpfYE https://www.youtube.com/watch?v=RPtzYvuNl88 https://www.youtube.com/watch?v=RPtzYvuNl88
DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.01 | 129 Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014 for Corporation Perpetrators: Why It Will Be Difficult Alfons Zakaria Faculty of Law, Universitas Brawijaya Email: al_zaka@yahoo.com Submitted : 2019-02-18 | Accepted : 2019-09-25 Abstract: Indonesian laws have recognized the legal person as a subject of criminal law.
It can be seen in all regulations enacted recently acknowledging that “any person” is a natural person (natuurlijk persoon) and legal person (rechtspersoon) who are liable for criminal punishments.
Related to legal person or corporation, Indonesia, on the other hand, regulates corporate criminal responsibility differently in every single law.
Some laws contain complete provisions, but others may fail to set the regulation properly.
The Indonesian Commerce Act Number 7 the year 2014, for example, the legislators might miss drawing the provisions regulating corporate criminal responsibility.
The Act recognizes corporations as a legal subject, but there is the absence of provisions related to when corporations shall be categorized committing a crime, which party shall be responsible when corporations shall be responsible, and what punishments shall be proper for corporations.
Furthermore, it is commonly used, that if there is an absence of criminal law provisions in an act, the Criminal Code and Criminal Procedure Code will be the referral sources.
In terms of corporate criminal responsibility regulation, however, both the Criminal Code and Criminal Procedure Code do not recognize the corporation as the subject of criminal law.
Thus, the codes may not suitable as the referral sources for corporate crime law.
Unfortunately, corporations violating the Act, then, will be difficult to be enforced in the judicial process.
As a legal research paper, it will argue that the absence of the provision related to corporate criminal responsibility leads to the failure of law enforcement of corporation wrongdoings by presenting prospective consequences of the absence of such provisions.
Keywords: corporate crime; corporation; corporate criminal responsibility.
I.
INTRODUCTION Corporations are immensely powerful entities capable of both greatly increasing human welfare and harming it.
It is, therefore, 1 James M Anderson and Ivan Waggoner, The Changing Role of Criminal Law in Controlling important that both corporations and the people who work on their behalf are appropriately regulated and controlled.1 Corporate Behavior (RAND Corporation, Santa Monica, Calif, 2014) ix.
mailto:al_zaka@yahoo.com Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 130 | Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014...
The Commerce Act Number 7 the Year 2014 is addressed to increase national economic growth, ensure smooth distribution and availability of basic needs goods and essential goods, improve consumer protection and improve the protection of natural resources.
Accordingly, the Act regulates only activities committed by people who involve in the business area.
The people are business players, exporters and importers.
The Act acknowledges, in Article 1, that business players, exporters and importers are an individual or corporation (natuurlijk person or rechtspersoon).
The Criminal Sanction Chapter of the Act regulates that wrongdoings are not committed by any person as other regulations, but only committed by business players, exporters, importers, producers and service providers.
This means that criminal punishment regulated will be imposed on an individual or corporation who act as business players, exporters and importers.
However, there is an absence of provisions related to corporate criminal responsibility.
The Act does not regulate when business players, exporters and importers as a corporation can be considered committing wrongdoings, or what sanctions that appropriate for a legal person.
Corporations must be regulated differently compared to a natural person.
Identifying the elements needed to be regulated in corporate criminal responsibility is not separated from the form and nature of corporations.
One example of financial crime regulated in the Act, is prohibition of goods distribution using “pyramid scheme” 2 mentioned in Article 105: “business player who implements a pyramid scheme system in 2 Debra A Valentine, Pyramid Schemes defines pyramid schemes “….
promise consumers or investors large profits based primarily on recruiting others to join their program, not based on profits from any real investment or real sale of distributing goods referred to Article 9 shall be sentenced with maximum imprisonment of 10 years and /or fine of ten billion rupiahs”.
If corporations, therefore, distribute their products using pyramid scheme, what provisions that can be implemented to determine, such as, who should be responsible and what proper sanctions for corporations.
Moreover, about the principle of legality, legislators should formulate the acts referred to criminal offences clearly and in detail.
This is called the principle of lex certa or bestimmtheitsgebot.
Legislators should define clearly without vague (nullum crimen sine lege stricta), so there is no ambiguity regarding the formulation of a prohibited act and given sanction.
Formulation of unclear or overly complicated will only bring legal uncertainty, and then it would lead to the failure of law enforcement.
II.
LEGAL MATERIALS AND METHODS This research is legal research using the statute approach.
Legal materials used in this research are primary legal materials and secondary legal material, primary legal materials include Indonesian regulations on the subject matter particularly the Commerce Act Number 7 the year 2014, secondary materials include books, journal articles and other relevant sources.
This paper will initially describe the principle of legality as the fundamental principle of law enforcement.
Then, it will identify kinds of crimes regulated in the Commerce Act Number 7 the year 2014.
Then, it will analyze the provisions that goods to the public.
Some schemes may purport to sell a product, but they often simply use the product to hide their pyramid structure” <https://www.ftc.gov/publicstatements/1998/05/pyramid-schemes>.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... | 131 should be regulated corporate criminal responsibility in the Commerce Act Number 7 the year 2014, by comparing with other provisions in other laws.
Finally, it will indicate the prospective consequences of the absence of such provisions.
III.
RESULT AND DISCUSSION 1.
Principle of Legality The principle of legality or nullum delictum nulla poena sine praevia lege poenali means no offence, no punishment without a pre-existing penal provision.
This principle accentuates that penal law must be strictly construed3 and there must not exist retroactive effect, 4 and forbids analogies 5 .
The main goals of the principle are to protect individual human rights and to promote the purposes of criminalization.6 According to Sudarto, the principle of legality contains two things:7 a.
A criminal offence must be formulated or stated in the law.
About this there are two consequences, the first is that the act of someone who has not listed in the law as a crime, cannot be punished, so with this principle, unwritten law lacks the power to be applied.
Whereas the second consequence is an assumption that the prohibition of the use of analogies to make an action become a criminal offence as defined in the law.
b.
Regulation of this law must exist before the occurrence of the crime.
3 Jerome Hall, General Principles of Criminal Law Second Edition (the Lawbook Exchange Ltd, 2010) 28.
4 Cian C. Murphy, ‘The Principle of Legality in Criminal Law Under the ECHR’, (2010) 2 European Human Rights Law Review 193 5 Gerhard Werle and Florian Jeßberger, Principles of International Criminal Law (Third Edit, 2014) 113.
Consequently, the law must not be retroactive.
Meanwhile, according to Moeljatno, from the principle of legality formulation, it can be concluded that:8 a.
There are no actions which prohibited and threatened with criminal penalties if it was previously not stated in the law.
b.
To determine the existence of criminal acts must not use an analogy.
c. The rule of criminal law does not apply retroactively.
While according to Fajrimei, in the tradition of civil law systems, there are four aspects of the principle of legality which is applied strictly, namely: legislation (law), retroactive, lex certa, and analogy.
Regarding these four aspects, according to Roelof H Haveman, “though it might be said that not every aspect is that strong on its own, the combination of the four aspects gives more true meaning to the principle of legality”.9 Based on history and definition, it can be concluded that the principle requires: a.
Laws must be in written (lex scripta) b.
Laws must be formulated in detail (lex certa) c. Laws must not be applied retroactively (non-retroactivity) d. Laws must not have interpreted by analogy About laws must be in writing form, the legislators should formulate the elements of criminal offences clearly and in detail.
It’s called the principle of lex certa or bestimmtheitsgebot.
Legislators should 6 Kenneth S Gallant, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press, 2009) 19–20.
7 Sudarto, Hukum Pidana I (Semarang: Yayasan Sudarto, 1990) 22.
8 Moeljatno, Asas-Asas Hukum Pidana (Jakarta: Rineka Cipta, 2002) 25.
9 Fajrimei A Gofar, Asas Legalitas Dalam Rancangan KUHP 2005 (Jakarta: ELSAM, 2005) 6.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 132 | Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... define clearly without vague (nullum crimen sine lege stricta), so there is no ambiguity regarding the formulation of a prohibited act and given sanction.
Formulation of unclear or overly complicated will only bring legal uncertainty and hinder the success of the prosecution because people are always going to be able to defend themselves that such provisions are not useful as a code of conduct.
In terms of corporate criminal responsibility, regulations must provide provisions explaining criteria or restrictions on when a corporation can be said commits a criminal act.
It should be regulated to determine which party can consider for.
The provisions that can be used as the criteria or guidelines for determining when a corporation has been said to commit criminal offence spread over several laws.
2.
Crimes in Commerce Act Number 7 the Year 2014 Chapter XVIII regulates kind s of illegal activities that will be punishable for criminal sanctions.
There are 13 articles, from Article 104 to Article 116, showing 13 kinds of wrongdoings, as presented in Table Kinds of Wrongdoing.
Table Kinds of Wrongdoing Article Subject Wrongdoing Sanction 104 business player do not use or do not complete the Indonesian language labels on goods traded in the country referred to Article 6 paragraph (1) maximum imprisonment of 5 years and /or fine of five billion rupiahs.
105 business player implement a pyramid scheme system in distributing goods referred to Article 9 maximum imprisonment of 10 years and /or fine of ten billion rupiahs.
106 business player do not have licenses in business activities, issued by the Minister referred to Article 24 paragraph (1) maximum imprisonment of 4 years and /or fine of ten billion rupiahs.
107 business player Store staple food and/or essential goods in certain number and time, in the event of scarcity of goods, price volatility, and/or traffic barriers in trade referred to Article 29 paragraph (1) maximum imprisonment of 5 years and /or fine of fifty billion rupiahs.
108 business player manipulate the data and/or information regarding the supply of basic needs goods and/or essential goods as referred to Article 30 paragraph (2) maximum imprisonment of 4 years and /or fine of ten billion rupiahs.
109 Producer or importer trade goods related to security, safety, health, and the environment that is not registered to the Minister referred to Article 32 paragraph (1) letter a maximum imprisonment of 1 year and /or fine of five billion rupiahs.
110 business player trade goods and/or services defined as goods and/or services that are prohibited to be traded as referred to Article 36 maximum imprisonment of 5 years and /or fine of five billion rupiahs.
111 importer import goods that are not in new condition as referred to Article 47 paragraph (1) maximum imprisonment of 5 years and /or fine of five billion rupiahs.
112 exporter export goods defined as prohibited goods to be exported as referred to Article 51 paragraph (1) maximum imprisonment of 5 years and /or fine of five billion rupiahs.
importer import goods defined as prohibited goods to be imported as referred to Article 51 paragraph (2) maximum imprisonment of 5 years and /or fine of five billion rupiahs.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... | 133 Article Subject Wrongdoing Sanction 113 business player trade, in domestic, goods that do not meet with SNI or technical requirements that obligated enforced, as referred to Article 57 paragraph (2) maximum imprisonment of 5 years and /or fine of five billion rupiahs.
114 Service provider trade, in domestic services that do not meet with SNI, technical or qualification requirements that obligated enforced, as referred to Article 60 paragraph (1) maximum imprisonment of 5 years and /or fine of five billion rupiahs.
115 business player trade goods and /or services by using an electronic system that is incompatible with the data and/or information referred to in Article 65 paragraph (2) maximum imprisonment of 12 years and /or fine of twelve billion rupiahs.
116 business player organize trade fairs engages the learner and/or products are promoted from abroad which do not have permission from the Minister referred to Article 77 paragraph (2) maximum imprisonment of 3 years and /or fine of five billion rupiahs.
There are two essential points from the table that must have taken about corporate regulations.
First, the subjects of wrongdoing are only business players, exporters, importers, producers and service providers.
Article 1 of the Act defines that business players, exporters and importers are an individual or corporation, either in the form of a legal entity or not.
This means that corporations acting as business players, exporters and importers, are the subject of the Act.
They can have charged on the punishments according to the articles.
Second, the punishments, then, namely imprisonment and fine, are applied to business players, exporters, importers, producers and service providers who commit the wrongdoings, either an individual or corporation.
The main question is whether corporations are possible to be sentenced to imprisonment.
The answer of course not, as legal person shall be punished by fine only.
The other questions then, what happen if the corporation will not be able to pay the fine.
To answer the question, Article 30 of the Indonesian Criminal Code (KUHP) 10 Dwidja Priyatno and Kristian, Kebijakan Formulasi Sistem Pertanggungjawaban Pidana Korporasi (Jakarta: Sinar Grafika, 2017) 29. explains that if the fine is not have paid, the penalty will have substituted by light imprisonment maximum of six months.
The question again, is a legal person possible to be sentenced imprisonment?
Accordingly, the punishments provided, imprisonment and fine, for a corporation or legal person committing wrongdoing, seem difficult to be enforced.
This situation exists in some Indonesian laws.
Thus, they seem to regulate corporate criminal responsibility inconsistently among regulations.
10 The regulations are such as the Law Number 11 of 2008 on Electronic information and transactions, the Law Number 44 of 2008 on Pornography and the Law Number 18 of 2012 on Food.
3.
Absence of the Provisions Identifying the things needed to have regulated in a corporate criminal liability is not separated from the form and nature of the corporation.
KUHP, on the other hand, only regulates person and does not recognise corporations as legal subjects.11 Accordingly, 11 Padil, ‘Karakteristik Pertanggungjawaban Pidana Korporasi Dalam Tindak Pidana Korupsi’ (2016) 4(1) Jurnal IUS 46.
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6 No.2 (2019) State Regulations and Law Enforcement 134 | Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... corporations shall be accurate regulated.12 At least there are four things that needed to be regulated precisely regarding corporate criminal liability according to Barda Nawawi Arief, which are (1) when corporations shall be categorized committing crime; (2) which party shall be responsible; (3) when corporations shall be responsible; and (4) what punishments shall be proper for corporations.13 The Commerce Act Number 7 the Year 2014 seems to fail to regulate such elements.
Thus criminal law enforcement for corporations wrongdoers will not be useful.
The following will have described on the need for those four things to be arranged particularly in a regulation.
a.
When Corporations shall be Categorized Committing Crime The Commerce Act Number 7 the Year 2014 acknowledges, in Article 1, that business players, exporters and importers are an individual or corporation (natuurlijk person or rechtspersoon).
However, the problem is when is a crime can be said to be committed by a corporation.
This is because the corporation can only run by people.
Muladi and Diah Sulityani maintain that there are five requirements related to the perpetrators of the corporation, namely (1) Is there any act by a person working in the corporation?
(2) Is the action related to the business of the corporation?
(3) Does the performance serve the corporation?
(4) Is the 12 Henry Donald Lbn Toruan, ‘Pertanggungjawaban Pidana Korupsi Korporasi’ (2014) 3(3) Rechtsvinding 406.
13 Barda Nawawi Arief, Masalah Penegakan Hukum Dan Kebijakan Hukum Pidana Dalam Penanggulangan Kejahatan (Jakarta: Kencana Prenada Media Group, 2007) 151.
14 Muladi and Diah Sulityani, Pertanggungjawaban Pidana Korporasi (Bandung: Alumni, 2015) 41.
15 Council of Europe Criminal Law Convention on Corruption corporation able to decide the deed should be committed or not?
(5) Is the act usually accepted by the corporation?14 Furthermore, Article 18 of Council of Europe Criminal Law Convention on Corruption emphasizes that: “legal persons can be held liable for the criminal offences” committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on a power of representation of the legal person; or an authority to make decisions on behalf of the legal person; or an authority to exercise control within the legal person.15 The principle suitable to determine whether a corporation has committed a crime is the principle of strict liability.
The principle is an expression that shows a criminal act does not require fault to one or more elements of the actus reus.16 The reason on the premise that states there is no fault at all in strict liability is that someone is not necessarily convicted even though he already committed action prohibited by law.
In contrast, strict liability that must be made stricter requirements (absolute liability) is that in the case of strict liability a person who has committed the forbidden act (actus reus) as defined in the law, may be convicted without the need to question whether he has a fault (mens rea) or not.
17 The implementation of this principle will remove the requirement to prove a guilty mind by <https://rm.coe.int/CoERMPublicCommonSearch Services/DisplayDCTMContent?documentId=090 000168007f3f5>.
16 Mahrus Ali, Kejahatan Korporasi (Yogyakarta : Arti Bumi Intaran, 2008) 53.
17 Hulsman in Hamzah Hatrik, Asas Pertanggungjawaban Korporasi Dalam Hukum Pidana Indonesia (Strict Liability and Vicarious Liability) (Jakarta : Raja Grafindo Persada, 1996) 110.
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6 No.2 (2019) State Regulations and Law Enforcement Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... | 135 public prosecutors, for example, intent, knowledge or recklessness 18 or psychological matter19.
Based on the provisions above, it can conclud that the Commerce Act Number 7 the Year 2014 should contain provisions regulating when a criminal offence have indicated committed by a corporation if the criminal offence: (1) performed by a person alone or on the order of the person controlling the corporation, the authorized personnel make decisions on behalf of the corporation or representing the corporation to perform a legal act or has the authority to control and/ or supervise the corporation; (2) performed in its business scope as specified in the articles of association or other provision applicable to the corporation concerned; (3) performed to meet the intent and purpose of the corporation; (4) performed in by the duties and functions of the perpetrator or any of the command; (5) performed to provide benefits to the corporation; and (6) performed either alone or together.
b.
What Party shall be Responsible The Commerce Act Number 7 the Year 2014 acknowledges that business players, exporters and importers are an individual or corporation.
The Act, however, does not regulate who should be responsible in corporations for wrongdoing committed by corporations.
In determining who should be responsible, there are three models of 18 Corporations and Financial Services Division of The Australian Treasury, Review of Sanctions in Corporate Law 15 <http://archive.treasury.gov.au/contentitem.asp?C ontentID=1182>.
19 Ridho Kurniawan and Siti Nurul Intan Sari, ‘Pertanggungjawaban Pidana Korporasi corporate responsibility, which is known, namely (1) The board of corporation as the maker who responsible; (2) Corporation as the maker and administrator who responsible; (3) Corporation as the maker who is responsible as well.
20 In the model of corporate responsibility, there is a change that a corporation can be accounted for as a maker besides as a human being (naturlijk persoon).
Thus, rejection of corporate criminal prosecution has been amended to accept the concept of the functional offender (functioneel daderschap).
21 It means that this responsibility system is the beginning of the direct responsibility of the corporation.
This model is the beginning of the direct responsibility of the corporation as well as the maker who has the responsibility.
The motivation is to pay attention to the development of the corporation itself, which is for some particular offences, the enactment of the board of the corporation as the one who can be punished is not enough.
In economic offences, it is not impossible that the fine imposed as a penalty to the board compared to the benefits that have been received by the corporation to perform the act or losses incurred in the community, or suffered by rivals, gains or losses, is greater than the fine imposed as punishment.
The criminal punishment for the board of the corporation does not provide sufficient assurance that the corporation will not commit the offence forbidden by the law again.
It turns out that it is not enough to hold the repression of offences committed by or with a corporation.
Therefore it is also necessary to give a Berdasarkan Asas Strict Liability’ (2014) 1(2) Jurnal Yuris 162.
20 Setiyono, Kejahatan Korporasi (Malang : Bayumedia Publishing, 2009) 12–14.
21 Ibid 16.
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6 No.2 (2019) State Regulations and Law Enforcement 136 | Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... criminal punishment to the corporation, and the board of the corporation or just the board.22 Moreover, there are some things that can be used as a justification that the corporation as a maker and at the same time the one who responsible, firstly, because in many criminal acts of economic and fiscal, corporate profits or losses suffered by the community can be significant, so it will not maybe be balanced when the criminal is only imposed on the board alone.
Second, criminalizing the board only, or there is no guarantee that the corporation will not repeat criminal offences.
With corporate criminalized by type and weight according to the nature of the corporation, the corporation is expected to be able to comply with the relevant regulations.23 The more appropriate provision is that it allows the board or corporation itself to be accounted for, either individually or jointly, if the corporation has committed the crime.
A closely related legal concept to corporate criminal liability is vicarious criminal liability, where the liability of superiors for the actions of their employees.
24 Andrew Weissmann and David Newman state that “a corporation is liable for the actions of its agents whenever such agents act within the scope of their employment and at least in part to benefit the corporation.25 Moreover, James M. Anderson and Ivan Waggoner believe that “Whether an activity falls within the individual’s scope of authority is determined by whether the individual engages in activities “on the corporation’s behalf in performance of [his or her] general line of work.
.
.
.
[T]hose acts must be motivated, at 22 Dwidja Priyatno, Kebijakan Legislasi Tentang Sistem Pertanggungjawaban Pidana Korporasi Di Indonesia (Bandung : CV Utomo, 2004) 57.
23 Setiyono, above n 19, 15.
24 Anderson and Waggoner, above n 1, 26. least in part, by an intent to benefit the corporation.”26 To reconcile with the absence of corporate criminal responsibility in Indonesian regulations, the Indonesian Supreme Court enacted regulation number 13 of 2016 concerning the Procedures in Handling Corporate Crime.
The regulation mentions that in imposing criminal penalties for corporations, Judges may consider corporation’s fault based on whether (1) corporations obtain profits or benefits from the crime or the crime is committed for the benefit of the corporation; (2) corporations let crime occurs; or (3) corporations do not take the necessary steps to take precautions, prevent greater impacts and ensure compliance with applicable legal provisions to avoid criminal acts.
c. When Corporations shall be Responsible The Commerce Act Number 7 the Year 2014 also fails to provide provisions regulating when corporations shall be taken responsible for their offensive act.
The criteria of when a corporation holds a criminal responsibility is not have separated from the criteria of when a corporation has committed a crime.
If the criterion of when a corporation has committed a crime fulfilled, then the responsibility can be charged to the corporation.
Later, the provision that needs to be regulated is which party has to represent the corporation in a legal process that must be followed?
Some laws have given examples of who should represent the corporation in legal proceedings.
The basic reasons that must have used in determining when corporation should be 25 Andrew Weissmann and David Newman, ‘Rethinking Criminal Corporate Liability’ (2007) 82 Indiana Law Journal 422.
26 Anderson and Waggoner, above n 1, 5.
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6 No.2 (2019) State Regulations and Law Enforcement Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... | 137 responsible according to Clinard and Yeager are (1) the degree of loss to the public; (2) the level of complicity by high corporate managers; (3) the duration of the violation; (4) the frequency of the violation by the corporations; (5) evidence on intent to violate; (6) evidence of extortion, as bribery cases; (7) the degree of notoriety engendered by the media; (8) precedent in law; (9) the history of serious violation by the corporation; (10) deterrence potential; (11) the degree of corporation evinced by the corporation.
27 d. What Punishments shall have proper for Corporations There is an absence of provisions regulating criminal sanctions for corporations in the Commerce Act Number 7 the Year 2014.
Regulating criminal sanctions for the corporation must consider the nature of the corporation which is different from a natural person.
A responsibility of corporation and people is comparable, but there are exceptions.
At least two things can be used as an exception to corporate responsibility, which are: 1) In those cases which by its nature cannot be done by the corporation, such as rape, and 2) In the case that the only crime which may be determined cannot have subjected to the corporation, such as imprisonment and death penalty.28 27 Muladi and Sulityani, above n 13, 62.
28 Setiyono, above n 19, 109.
29 Ibid 119.
30 Corporations and Financial Services Division of The Australian Treasury, Review of Sanctions in Corporate Law, above n 17, 18.
31 William Robert Thomas, How and Why Should the Criminal Law Punish Corporations?
(Dissertation, the University of Michigan, 2015) 174 <https://deepblue.lib.umich.edu/bitstream/handle/ While the additional sanctions for corporations, besides criminal sanctions, are:29 a).
The closure of all or part of the corporation in a specific time or permanently; b).
Revocation of the facilities provided by the government to the corporation concerned within a spesific time or forever; c).
Placing the corporation under guardianship within a specified time.
Regulating civil sanctions also provide advantages for law enforcement such as minimize overall enforcement costs.
30 The proper punishment for corporations that eligible for criminal liability is only a criminal penalty.31 Almost all regulations, in Indonesia, indicate that punishment for corporations is fine.
However, the regulations do not manage provisions related to substitute of fine.32 The problem then is if a punished corporation is not able to pay the fine, it shall be punished with light imprisonment as stated in article 30 of the Indonesian Criminal Code.
Light imprisonment seems impossible for a corporation.
Sjahdeini also believes that only criminal fine is possible to be imposed for the corporation.
33 Usually, punishments have regulated in the cumulative and alternative formulation.
The punishment that shall be imposed for a corporation is punishment formulated in alternatively, such as 2027.42/113460/wrtrw_1.pdf?sequence=1&isAll owed=y,>.
32 Andrianto, Pemikiran Dan Teknik Pembuatan Putusan Pemidanaan Terhadap Korporasi (Bandung : Mandar Maju, 2016) 5; Dwidja Priyatna, Sistem Pertanggungjawaban Korporasi Dalam Kebijakan Legislasi (Depok : Kencana, 2017) 185.
33 Sutan Remy Sjahdeini, Ajaran Pemidanaan: Tindak Pidana Korporasi & Seluk Beluknya (Depok : Kencana, 2017) 268.
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6 No.2 (2019) State Regulations and Law Enforcement 138 | Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... imprisonment or fine.
Other sanctions that can have given to the corporations, such as (1) financial sanctions; (2) appropriation of profits derived from the crime; (3) revocation of business license; (4) dissolution of the corporation; (5) mandatory management oversight; (6) community service order.34 4.
Consequences Obstacles in law enforcement come possibly from the law itself, namely (1) The fundamental principles are not complied by legislations; (2) There is the absence of implementing regulations needed for applying the legislation; (3) The ambiguity of the words in the legislation confused in the interpretation and application.
35 Similarly, the absence of provision regulating criminal responsibility of corporations in the Commerce Act Number 7 the year 2014, will lead to unexpected consequences that direct to the inability of law enforcers to tackle corporates violating the Act.
There are at least four consequences that may occur because of the absence of the provisions.
First, investigators and public attorneys will be lost to determine whether a corporation has conducted wrongdoing.
They usually work under particular regulations as their formal guidance.
Investigators and public attorneys might not be able to decide whether an offence performed by an individual or corporation, because there is no provision when wrongdoing is committed by a corporation.
The error in indicating who subjects an offence in the indictment will lead to the decision of acquittal.
34 Muladi and Sulityani, above n 13, 69–70.
35 Soerjono Soekanto, Faktor-Faktor Yang Mempengaruhi Penegakan Hukum (Jakarta : Raja Grafindo Persada, 2012) 7.
36 Setiawan Noerdajasakti, Ismail Navianto and Alfons Zakaria, Kendala Penegekan Hukum Second, the investigator and a public attorney will be puzzled to identify which part of the corporation shall bear responsibility.
Although Investigators and public attorneys are successful to determine that a corporation has conducted crime, they are still difficult to identify which part of the corporation shall be responsible and who can perform in corporation’s behalf.
The error in indicating whom subjects of an offence in the indictment, awill lead to the decision of acquittal.36 Third, judges do not have guidance to sentence appropriate sanction for accused corporations.
A natural person (natuurlijk persoon) differs from a legal person (rechtspersoon).
Determining proper punishments for a corporation is not separated from the form and nature of corporations.
A Legal person must not be able to be punished by the death penalty or imprisonment.
Moreover, in the Indonesian criminal law system, judges require formal guidance in the form of regulations to sentence the accused.
They are not allowed to sentence beyond what laws have formulated.
They, therefore, will not be able to sentence appropriate punishment for corporations, such as freezing part or all activities of the corporation, revocation of business license, expropriation of assets of the corporation to the state and payment of compensation.
Last but not least, these consequences will direct to the absence of a corporation that may be able to be punished under the Act.
Kejahatan Korpoasi Terkait Inkonsistensi Pengaturan Pertanggungjawaban Pidana Korporasi Dalam Perundang-Undangan Di Indonesia, Studi Di Jawa Timur (Faculty of Law Brawijaya University, 2015).
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6 No.2 (2019) State Regulations and Law Enforcement Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... | 139 IV.
CONCLUSION AND SUGGESTION Based on the discussions above, it can conclude that the Commerce Act Number 7 the year 2014 miss regulating the corporate criminal responsibility in its provisions.
The provisions that must have legalized are related to when corporations shall be categorized committing a crime, which party shall be responsible when corporations shall be responsible, and what punishments shall be proper for corporations.
This kind of provisions is the mandate of the principle of legality as the fundamental principle for insurance the primacy of law in all criminal proceedings.
This condition may lead to the inability of investigators and public attorneys to determine whether a corporation has conducted wrongdoing and then which part of the corporation shall bear responsibility.
This condition also leads to an inability for the sentencing appropriate punishment for corporations.
Thus, legislators must revise the Commerce Act Number 7 the year 2014 and insert the provisions related the corporate criminal responsibility, to ensure that criminal law enforcement can be imposed for corporation wrongdoers.
REFERENCES Books Ali, Mahrus, Kejahatan Korporasi (Yogyakarta : Arti Bumi Intaran, 2008) Anderson, James M and Ivan Waggoner, The Changing Role of Criminal Law in Controlling Corporate Behavior (RAND Corporation, Santa Monica, Calif, 2014) Andrianto, Pemikiran Dan Teknik Pembuatan Putusan Pemidanaan Terhadap Korporasi (Bandung : Mandar Maju, 2016) Arief, Barda Nawawi, Masalah Penegakan Hukum Dan Kebijakan Hukum Pidana Dalam Penanggulangan Kejahatan (Jakarta: Kencana Prenada Media Group, 2007) Gallant, Kenneth S, The Principle of Legality in International and Comparative Criminal Law (Cambridge University Press, 2009) Gofar, Fajrimei A, Asas Legalitas Dalam Rancangan KUHP 2005 (Jakarta: ELSAM, 2005) Hall, Jerome, General Principles of Criminal Law Second Edition (the Lawbook Exchange Ltd, 2010) Hatrik, Hamzah, Asas Pertanggungjawaban Korporasi Dalam Hukum Pidana Indonesia (Strict Liability and Vicarious Liability) (Jakarta : Raja Grafindo Persada, 1996) Moeljatno, Asas-Asas Hukum Pidana (Jakarta: Rineka Cipta, 2002) Muladi and Diah Sulityani, Pertanggungjawaban Pidana Korporasi (Bandung: Alumni, 2015) Priyatna, Dwidja, Sistem Pertanggungjawaban Korporasi Dalam Kebijakan Legislasi (Depok : Kencana, 2017) Priyatno, Dwidja, Kebijakan Legislasi Tentang Sistem Pertanggungjawaban Pidana Korporasi Di Indonesia (Bandung : CV Utomo, 2004) Priyatno, Dwidja and Kristian, Kebijakan Formulasi Sistem Pertanggungjawaban Pidana Korporasi (Jakarta: Sinar Grafika, 2017) Setiyono, Kejahatan Korporasi (Malang : Bayumedia Publishing, 2009) Sjahdeini, Sutan Remy, Ajaran Pemidanaan: Tindak Pidana Korporasi & Seluk Beluknya (Depok : Kencana, 2017) Soekanto, Soerjono, Faktor-Faktor Yang Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 140 | Zakaria Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014... Mempengaruhi Penegakan Hukum (Jakarta : Raja Grafindo Persada, 2012) Sudarto, Hukum Pidana I (Semarang: Yayasan Sudarto, 1990) Werle, Gerhard and Florian Jeßberger, Principles of International Criminal Law (Third Edit, 2014) Journal Articles Cian C. Murphy, ‘The Principle of Legality in Criminal Law Under the ECHR’, (2010) 2 European Human Rights Law Review Kurniawan, Ridho and Siti Nurul Intan Sari, ‘Pertanggungjawaban Pidana Korporasi Berdasarkan Asas Strict Liability’ (2014) 1(2) Jurnal Yuris Padil, ‘Karakteristik Pertanggungjawaban Pidana Korporasi Dalam Tindak Pidana Korupsi’ (2016) 4(1) Jurnal IUS Toruan, Henry Donald Lbn, ‘Pertanggungjawaban Pidana Korupsi Korporasi’ (2014) 3(3) Rechtsvinding Weissmann, Andrew and David Newman, ‘Rethinking Criminal Corporate Liability’ (2007) 82 Indiana Law Journal Research Report Noerdajasakti, Setiawan, Ismail Navianto and Alfons Zakaria, Kendala Penegekan Hukum Kejahatan Korpoasi Terkait Inkonsistensi Pengaturan Pertanggungjawaban Pidana Korporasi Dalam PerundangUndangan Di Indonesia, Studi Di Jawa Timur (Faculty of Law Brawijaya University, 2015) Internet Sources Corporations and Financial Services Division of The Australian Treasury, Review of Sanctions in Corporate Law <http://archive.treasury.gov.au/content item.asp?ContentID=1182> Council of Europe Criminal Law Convention on Corruption <https://rm.coe.int/CoERMPublicCom monSearchServices/DisplayDCTMCo ntent?documentId=090000168007f3f5 > Thomas, William Robert, How and Why Should the Criminal Law Punish Corporations?
(Dissertation, the University of Michigan, 2015) <https://deepblue.lib.umich.edu/bitstre am/handle/2027.42/113460/wrtrw_1.p df?sequence=1&isAllowed=y,> Valentine, Debra A, Pyramid Schemes <https://www.ftc.gov/publicstatements/1998/05/pyramidschemes>
102 | DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.07 The Roles of International Law on Technological Advances Emmy Latifah1, Moch Najib Imanullah2 1Faculty of Law, Universitas Sebelas Maret E-mail : emmy.latifah@staff.uns.ac.id 2 Faculty of Law, Universitas Sebelas Maret E-mail : najibimanullah@staff.uns.ac.id Submitted : 2018-02-18 | Accepted : 2018-04-02 Abstract: The study focuses on the roles of International Law in responding to the technological advances, particularly examining the International Law as a regulator on emerging technology.
The technological advances, especially in the means and method of war and environmental issues, have been contributing to the development of International Law.
It is a normative legal research using the secondary data including primary and secondary legal materials.
While the primary legal materials consist of all the international agreement related to the development of technology both directly and indirectly, secondary ones included the references having correlation and support to the issues.
The technique of analysis data used legal interpretation.
The study concludes that as a regulator of technological advances, International Law has a role to play in regulating its development.
Many facts showed that International Law has capability to respond to the challenges.
However, the scope and application of International Law is subject to a number of limitations inherent the nature of International Law itself.
Keywords: roles of international law, technological advances.
I.
INTRODUCTION Scientific and technological advances are driving rapid global change.
The waves of technological change, driven by inventions ranging from steam power to electricity to the automobile, have driven 1 Jeffry D. Sachs, The Age of Sustainable Development, (Columbia University Press, 2015), 82.
2 Historians recorded that the world has undergone various phases of industrial revolution on the period of 1760-1830.
Starting from the first industrial revolution that mechanized production, to the second one that led to mass production, to economic development and social transformation throughout history.1 Klaus Schwab has argued that we are now in the fourth industrial revolution2, where “a fusion of technologies … is blurring the lines between the physical, digital, and biological the third one that automated production.
For more detail, see Julian Hoppit, ‘Understanding the Industrial Revolution’, (1987) 30 1, The Historical Journal, 211-224; Jan De Vries, ‘The Industrial Revolution and the Industrious Revolution’, (1994) 54 2, The Journal of Economic History, 249-270. mailto:emmy.latifah@staff.uns.ac.id mailto:najibimanullah@staff.uns.ac.id Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Latifah, Imanullah The Roles of International Law on Technological Advances | 103 spheres”.3 In the latest technological revolution, “new technologies” include everything from the internet to drone to big data, and the potential application of these technologies are rapidly expanding.
Some aspects on the development of technology, such as nuclear weapons, fishing activities, biotechnology, steam cell, genetic modified organism, artificial super intelligence, are closely linked with social and political concerns.
Yet, the divisive effects of the latter are to some extent offset by the desire to overcome the massive challenges of climate, sea, and space, and to dull the ever-growing threat of nuclear weapons.
These pressures force nations to cooperate, initially perhaps because of selfinterest, self-preservation, a common adventurous spirit, or a mutual realization that atomistic behavior in certain fields will produce fewer results than collective action.
The resulting cooperation programs foster increased contact among nations; more contacts accompanied by good faith performance of assumes obligations should hasten the emergence of a common respect and understanding which may brighten the prospects for future agreements beyond science and technology.
Establishing effective control over scientific and technological pursuits will require both a realistic appraisal of political factors and a process of take and give.
Obtaining some measure of international control in the development of a system of communication satellites or climate modification, in the exploration of the sea, or in the limitation or abolition of nuclear weapons, requires a certain loss of 3 Klaus Schwab, ‘The Fourth Industrial Revolution: What it means, how to respond’, (2016) January, World Economic Forum, available at www.weforum.org/agenda/2016/01/the-fourthsovereignty by each participating nation.
But, against this loss must be measured the mutual advantages to be gained from a realistic accommodation of interests.
It is urgent to ensure the role and capacity of International Law to govern and harness the tremendous potential of science and technology.
Due recognition of this function is especially warranted at the present time when ambitious hopes and sizeable fears accompany rapid science and technology advances.
In this environment, International Law can serve as an organizational mechanism to implement the desire of nations to cooperate.
Given the difficulties in the social and political areas of human relations, international cooperation seems more feasible in scientific and technological areas.
The prohibitive cost of large-scale scientific programs necessary to ensure efficient progress in diverse field encourages cooperative ventures and sharing information.
Moreover, cooperation in social and political sphere is greatly hampered by significant ideological and emotional discord.
This friction has precluded agreement upon a substantial number of current international problems and has raised serious obstacles to social or political integration.
The aim of the study is to examine the role of International Law in responding to the technological advances.
II.
LEGAL MATERIALS AND METHODS It is a normative legal research using primary and secondary legal materials.
While the primary legal materials consist of all the international agreement related to the development of technology both directly and industrial-revolution-what-it-means-and-how-torespond.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 104 | Latifah, Imanullah The Roles of International Law on Technological Advances indirectly, secondary ones included the references, including books, journal articles as well as conference papers and other documents having correlation with the issues.
The technique of analysis data used legal interpretation.
Specifically, the international agreements as primary legal materials including: the 1868 St Petersburg Declaration Renouncing the Use, in time of war, of Explosive Projectiles under 400 Grammes Weight; the 1925 Geneva Protocol for Prohibition of Poisonous Gases and Bacteriological Methods of Welfare; the 1972 United Nations Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction; the 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons; the 1995 Protocol IV to the United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects, on blinding laser weapons 1995; the 1980 United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects; and the 1996 Amended Protocol II to the United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects, on prohibitions or restrictions on the use of mines, booby-traps, and other devices.
4 Jonathan B. Wiener, ‘The regulation of technology, and the technology of regulation’, (2004) 26, Technology in Society , 483.
5 Ibid., p. 484.
III.
RESULTS AND DISCUSSIONS The Debate on Regulatory of Technological Advances under International Law: Framing the Issues Many scholars have claim that technology and regulation can be seen as two contradictory matters.
Technology symbolizes markets, enterprise, and growth, while regulation represents government, bureaucracy, and limits to growth.4 The modern regulatory era, starting in the 1960s, the contradiction focused on one side, regulation as mechanism to restrain technological risk while the other side, regulation created hindrance over the progress of new technology.5 Moreover, in the 1970s, the debate emphasized on the development of nuclear power, supersonic transport, and food additives.
Today, the debate still continues regarding to the fears of electromagnetic field, greenhouse gas emissions, fiber optic, genetically modified foods and so on sparking new calls for precautionary regulation.6 In contrary, other scholars have different views regarding this matter.
Fist, many have argued that technological advance itself could reduce risk by introducing the excellent new method of production.7 There are many newer products and devices are often less dangerous and less polluting that older ones, proving that regulation serve as a mechanism to reduce risks rather than inhibit new technology.
Second, many have hypothesized that regulation could improve, rather than impede, businesses innovative 6 Ibid.
7 OECD, Innovation and the Environment, OECD Proceeding on Workshop of Innovation and the Environment, 2000, p. 7-9.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Latifah, Imanullah The Roles of International Law on Technological Advances | 105 edge and competitiveness.8 In this case, regulation stimulates the firm to conserve resources and switch to cleaner substitutes in ways that actually save the money of firms.
Even if such moves are costly to the firm, regulation enables firms in countries that regulate first to take the lead in selling new technologies to countries that follow.9 The crucial shortcoming over all the arguments above is the framing of regulation as a single kind of rule or strategy.
Regulation is treated as if it comes in one type and has only an effect on technology.
Nonetheless in reality, there are many different types of technologies likewise there are many difference kinds of regulations.
Difference regulatory instruments such as technology requirements, performance standards, taxes, tradable allowances, and information disclosure, could have very different effects on technological advance and other important consequences.10 In a broad sense, technology should not understand as not just hardware or equipment or chips, but as any device or system for converting inputs into outputs for changing the production function.
In this context, Wiener asserts that regulation is a technology itself.11 It is since regulation is a set of techniques for changing production functions to produce fewer of some outputs, such as pollution, waste, acid rain, or more others.
Regulation is technology of governance.12 The influence of regulation on technology is critically depend on the technology of 8 M.E.
Porter, ‘America’s Green Strategy’, (1991) 264 4, Scientific American 264, 168.
9 Jonathan B. Wiener, op.cit.
10 Ibid.
11 Ibid.
12 Ibid.
13 Rosemary Rayfuse, “Public International Law and the Regulation of Emerging Technologies” in Roger Brownsword et al (Eds), The Oxford regulation.
Diversity of regulatory design can hindrance or accelerate technological change, or shape it in varying ways, favoring some kinds of technology over others.
International Law is the system of rules and principles that regulate behavior between international actors.
In the context of technological advance, international law has the role to regulate either the development or deployment of emerging technologies in responding to the need to protect the international community from excesses of, possibly catastrophic, and even risks posed by technology.13 Since science and technological research is developing in power and capacity to transform not only the global environment, but also humankind itself, on a long term or even permanent basis, International Law is being called upon to proactively develop new form of international regulation and governance capable in anticipating, accessing, minimizing, and mitigating the risks posed by emerging or novel technologies including the risk of their rogue deployment by a state or individual acting unilaterally.14 In other words, International Law is being called upon to regulate not just the past and present development and deployment of technologies, but also the uncertain futures these technologies pose.
International Law has the role as an impartial framework or reference for the process of claim and decision.15 It seeks to limit the choice of alternative policies and Handbook of Law, Regulation, and Technology, (Oxford University Press, 2017), 500 14 United Nations Environment Programme (UNEP), 21 Issues for the 21st Century: Results of the UNEP Foresight Process on Emerging Environmental Issues, (UNEP, 2012), 2-3.
15 Tim Hillier, Sourcebook on Public International Law, (Cavendish Publishing Limited, 1998), 1415.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 106 | Latifah, Imanullah The Roles of International Law on Technological Advances methods of implementation in order to enhance values shared by most members of the international community and at least, to minimize the disruption of public order over the utilization, allocation and control of technology.16 It has to reconcile diverse national interest by means of equitable and rational solutions.
To fully this matter, International Law also has to accommodate themselves to the overriding value of efficiency inherent in modern technology.17 As problems of allocation and management become more technical in nature, the logic of efficiency will be applied more rigorously.
The role of International Law over an emerging technology remains become subject of debate.
On the one hand, International Law provides order and clarity as to the rights and obligations governing the relations between different actor, encourages to promote technological development, and facilitates exchanges of knowledge and goods and of providing framework for peacefully resolving disputes.18 On the other hand, regulating uncertainty, unknown, and even unknowable future requires flexibility, transparency, accountability, participation by a whole range of actors beyond the state, and the ability to obtain, understand, and translate scientific evidence into law.19 Despite the pretense of its ever-increasing purview over issue of global interest and concern, International Law remains rooted in its Westphalian origin premised on the state sovereignty.
This raises kinds of 16 Douglas M. Johnston, ‘Law, Technology, and the Sea’, (1967) 55, Cal.
L. Rev.
449 Available at: http://scholarship.law.barkeley.edu/californialawr eview/vol55/iss2/5 17 Ibid.
18 Rosemary Rayfuse, above n.13 502.
19 Ibid.
20 Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War, (Cambridge University Press, 2010), 38. predicaments including a fragmented and decentralized system of vague and sometimes conflicting norms and rules, uncertainty enforcement, and overlapping and competing jurisdictions and institutions.
International Law as a Regulator over Technological advances The history of human development has shown that many technological advances contributed to the development of international law.
In the field of international humanitarian law for example, on the one hand, there were new technological discoveries such as gunpowder and cannons, but on the other hand, international humanitarian law prohibits the use of certain technologies that violated humanity values, morality, and civilization.20 Indeed, attempts to ban the use of certain weapons are not something new.
Toxic weapons have been banned by Muslims, Hindus, Greeks and Romans in ancient times.
In the medieval ages, the Lateran Council instructed that the use of crossbow and albalest were considered “unchristian weapon”.21 The first international approach made by the international community related to the use of new technology, in this case was the technological advance in the field of international humanitarian law, marked by the adoption of the 1868 St Petersburg Declaration on explosive projectiles.22 This declaration strictly prohibits the use of exploding bullets.
The adoption of this 21 Adam Roberts and Richard Guelff, Documents on the Laws of War, Third Edition, (Oxford University Press, Oxford, 2000), 3.
22 The 1868 St Petersburg Declaration Renouncing the Use, In Time of war, of Explosive Projectilles Under 400 Grammes Weight, 11 December 1868, enter into force 11 December 1868, LXVI UKPP (1868) 659.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Latifah, Imanullah The Roles of International Law on Technological Advances | 107 Declaration was followed by the adoption of other declarations renouncing specific weapons and means of welfare at the Peace Conference of 1899 and 1907, which eventually led to the international treaties prohibiting the development, production, stockpiling, and use of poison gas (1925)23, bacteriological or biological weapons 1972)24, chemical weapons (1993)25, blinding laser weapons (1995)26, and other forms of conventional weapons (1980)27, including certain types of anti-personal land mines (1996).28 The latest challenge of international humanitarian law related to technological advances was the creation of cyber weapons and other emerging military technologies, such as unmanned aerial vehicles, directed-energy weapons, and lethal autonomous robots.29 The challenge faced by International Humanitarian Law is to ensure that technological advances in the field of Humanitarian Law (including methods and means of war) must be 23 The 1925 Geneva Protocol for the Prohibition of Poisonous Gases and Bacteriological Methods of Walfare, 17 June 1925, enter into force 8 February 1928, XCIV LNTS (1929) 65-74.
24 The 1972 United Nations Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, enter into force 26 March 1975, 1015 UNTS 163 (1976).
25 The 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons, 3 September 1992, enter into force 29 April 1997, 1974 UNTS 317.
26 The 1995 Protocol IV to the United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, on Blinding Laser Weapons 1995, enter into force 30 July 1998, 35 International Legal Materials 1218 (1996).
27 The 1980 United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate regulated in such a way as to maintain human dignity.30 Currently, there is no a single legally binding of international agreement to regulate technological advances in order to limit their potential risks.
Nevertheless, all states are bound by general principles of law and international customary laws that are compatible with the development and deployment of the technology.
General principles and international customary laws include: the basic norms of international peace and security law, such as the prohibition on the use of force and invention in the domestic affairs of other states;31 the basic principles of international humanitarian law, such as requirements of humanity, distinction and proportionality;32 the basic principles of human dignity and the right to life, liberty and security of the person;33 and the basic principles of international environmental law including the obligations to protect vulnerable ecosystems and species, the precautionary principles, and a range of Effects, 10 October 1980, enter into force 2 December 1983, 1342 UNTS 3.
28 The 1996 Amended Protocol II to the United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 3 May 1996, enter into force 3 December 1998, 35 International Legal Materials 1206-1217 (1996).
29 Braden R. Allenby, ‘Are New Technologies Undermining the Laws of War?’ (2014) 70 Bulletin of the Atomic Scientists, 21-31.
30 Rosemary Rayfuse, above n.13, 502.
31 Christine Gray, International Law and The Use of Force, Third Edition, (Oxford University Press, 2008), 6.
32 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Volume 1 Rules, International Committee of the Red Cross,( Cambridge University Press, 2005), 3.
33 Olivier de Schutter, International Human Rights Law, Second Editions, (Cambridge University Press, 2014), 61-66.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 108 | Latifah, Imanullah The Roles of International Law on Technological Advances procedural obligations relating to cooperation, consultation, notification, and exchange of information, environmental impact assessment, and participation.34 The general customary rules on state responsibility and liability for harm also apply.35 It means that, if the international law is seen as a dynamic process,36 so that there is no single legally binding of international law regulates the development of technology, general principles of law as one of the sources of international law constitutes “an authoritative recognition of a dynamic element on international law and of the creative function of courts which may administer it”.37 In this condition, general principles have functions, one of which is it could be applied as norms whenever there are no formulated norms governing a given question.38 Many new technologies such as nanotechnology and artificial intelligence, remain essentially unregulated by international law.39 However, synthetic biology have been discussed by the Conference of the Parties (COP) to the 1992 Convention on Biological Diversity (CBD), where the discussion of the synthetic biology on the conservation and management of 34 Philippe Sands and Jacqueline Peel, Principles of International Environmental Law, Third Editions, (Cambridge University Press, 2012), 117.
35 James Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text, and Commentaries, (Cambridge University Press, 2002), 1.
36 R. Higgins, Problems and Process: International Law and How We Use It, (Clarendon Press, 2003), 10.
37 J.L.
Brierly, The Law of the Nations: An Introduction to the International Law of Peace, (Clarendon Press, 1963), 63.
38 M. C. Bassiouni, ‘A Functional Approach to ‘General Principles of International Law’, (1990) 11 Minch.
J. Int’l L. 775-776.
Available at: http://repository.law.umich.edu/mjil/vol11/iss3/3 biological diversity.
Nevertheless, in 2014, the COP resolved that there are currently synthetic biology and biodiversity issues (CBD COP 2014).
Thus, the application of the CBD to synthetic biology remains a matter of discussion and debate within the COP.40 Furthermore, in the field of biotechnology, International Law has specifically addressed issues related to biosafety, bioterrorism, and human biotechnology.
In regard to biosafety, the Article 8 (g) of the CBD has obliged state party to establish or conserve the environmental impacts that could affect the conservation and sustainable use of biological diversity, taking into account the risks to human health.41 Moreover, in the field of biotechnology, new technology that also became the consensus of international law is "living modified organism" (LMO).
The 2000 Cartagena Protocol provides the definition of LMO as "any living organism that possesses a novel combination of genetic material obtained through the uses of modern biotechnology”.42 Meanwhile, ‘living organism’ is defined as ‘any biological entity capable of transferring or replicating genetic material, including sterile organisms, viruses 39 Albert C. Lin, “International Legal Regime and Principles Relevant to Geoengineering”, in Wil C.G.
Burns and Andrew L. Strauss (Eds), Climate Change Geoengineering: Philosophical Perspective, Legal Issues, and Governance Frameworks, (Cambridge University Press, 2013), 182-199.
40 Paul Oldham, Stephen Hall, Geoff Burton, “Synthetic Biology: Mapping the Scientific Landscape”, (2012) 7 4, PLOS Onem, 12-14.
41 Article 8 (g) of the 1992 Convention on Biological Diversity, 5 June 1992, enter into force 29 December 1993, 1760 UNTS 79.
42 Article 3 (g) of The 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, enter into force 11 September 20013, 39 International Legal Materials 1027 (2000).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Latifah, Imanullah The Roles of International Law on Technological Advances | 109 and viroids’.43 Thus, LMO includes novel viruses and organisms developed in laboratories.
Of course, merely bioengineering LMOs in a laboratory does not constitute ‘release’.
It does, however, constitute 'use' under the CBD and the more specific definition of 'contained use' in the Cartagena Protocol, which includes “any operation, undertaken within a facility ... which involves LMOs that are controlled by specific measures that limit their contact with, and their impact on, the external environment”.44 These rules describe that international law recognized new technologies in the field of biotechnology.
These provisions do not prohibit the development, use or disposal of LMOs, but rather, this one seeks to ensure ‘adequate protection measures’ against the risk of unintentional or potentially harmful of LMO release within the transboundary context.
If ‘adequate measures’ are not taken, the States Parties to the CBD and the Cartagena Protocol will be responsible internationally for any potentially transboundary damage resulting from this LMO release.45 International Law has strict rules in bioterrorism.
The 1972 United Nations Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (hereinafter called as Biological Weapons Convention/BWC) does not only regulate the use and release of biological weapons, but 43 Article 3 (h) of The 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, ibid.
44 Article 11 of The 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, ibid.
45 Grant Wilson, ‘Minimizing Global Catastrophic and Existential Risks from Emerging Technologies through International Law’ (2013) 31 308 Va. Envtl.
L. J. , 338. furthermore, this Convention governs the prohibition of the development, production, stockpiling and acquisition or retention of microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes.46 Moreover, State parties are prohibited from transferring “to any recipient whatsoever, directly or indirectly and from assisting, encouraging, or inducing any stats, group of states or international organizations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment, and means of delivery banned under the Convention within their territory, jurisdiction, or control”.47 However, regardless of the use of terminology "prohibition", the application of BWC is still possible for the purposes of prophylaxis, protection, and peaceful purposes as set forth on Article I and X.
Even the deadliest biological agents can be developed for peaceful purposes, yet still susceptible to accidental or malicious release.
It suggests that although BWC expressly rejects the use of biological agents and toxins as weapons, the states party recognize and accept the value of biological development for peaceful purposes.48 International Law also pays great attention to the issue of human dignity in the development of biotechnology and genetic engineering.
The Council of Europe's 1977 46 Article I of the 1972 United Nations Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 47 Article IV of the 1972 United Nations Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction 48 Rosemary Rayfuse, above n. 13 505.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 110 | Latifah, Imanullah The Roles of International Law on Technological Advances Convention on Human Rights and Biomedicine (CHRB), which prohibits inheritable genetic alterations of humans on the basis of that endangered humanity of all species.
Article 13 of the CHRB states that “an intervention seeking to modify the human genome' is not to say any modification in the genome of any descendants”.
It can be argued that although CBHR is a regional international agreement, with limited participation in the European countries, it is seen that International Law has taken an important (though limited) role in technological advances.
The Capability of International Law and Its Limitation on Development of Technology From the discussion before, it could be said that technological advances always bring profound implications for human life, both positive and negative implications.
On the one hand, technological advances have the potential to support innovation in products, services and processes; and to help address national and global challenges, including climate change, human population explosions, economic growth, and other environmental pressures.
On the other hand, the potential risks posed by technological advances, including misuse of technology, can have negative, even catastrophic, impacts on people and the global environment.49 Even, managing and controlling the research and development of emerging technologies would be a daunting task, particularly as, in many cases, the risks posed by some of these technologies will not be understood until 49 Grant Wilson, above n. 45 50 Catherine Brolmann and Janne Nijman, Legal Personality as A Fundamental Concept of International Law, Amsterdam Law School Legal Studies Research Paper No.
2016-43, Amsterdam they have been further developed and possibly even deployed.
Under these circumstances, International Law becomes relevant as a regulator for technological advances.
However, many limitations exist on international law’s capability50 to respond to these challenges.
In particular, the scope and application of International Law to emerging technologies is subject to a number of structural limitations inherent in the consensual nature of International Law.51 In the framework of technological development, the concern of International Law does not lie in its nature, form, development or even deployment.
An opinion of the International Court of Justice in its Advisory Opinion on the Threat or Use of Nuclear Weapons (Nuclear Weapons Advisory Opinion), stated: “in the absence of specific treaty obligations freely acceptance by states, the development of nuclear weapons is not prohibited by international law.
Indeed, even their use is not unlawful, per se; at least in circumstance where the state of the art faces an existential threat and otherwise complies with the laws of armed conflict”.
In the same context, the 1976 Convention on the Prohibition of Military or Any Other Hostile Use for Environmental Modification Techniques governs that the development and use of environmental modification technologies is neither regulated nor prohibited under international law, but only their hostile use in the context of an international armed conflict.52 In this matter, the principle of state sovereignty permits states to utilize their resources, conduct research, develop and deploy, or Center for International Law, University of Amsterdam, 2017, p. 1.
51 Rosemary Rayfuse, above n. 13 52 Article 1 of The 1976 Convention on the Prohibition of Military or Any Other Hostile Use for Environmental Modification Techniques.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Latifah, Imanullah The Roles of International Law on Technological Advances | 111 allow their nationals to research, develop, and deploy technologies as they see fit.53 On the contrary, International law has an attention on the potential harmful transboundary effect over human kind, the environment, other states, and the global interests.
Under the principle of state sovereignty, all states have an obligation to ensure that all of the activities conducted under their jurisdiction and control do not cause harm to other states It could be an example in the case of Article 4 of the 2000 Cartagena Protocol which applies not to the development of LMOs, but rather to “their transboundary development, handling, transport, use, transfer and release”.
The other example is in the CBD Article 8 (g) that requires to states to “regulate, manage or control”, but does not articulate the specific actions to be taken, leaving the precise measures to be taken to the discretion of each state.54 Even, while specific actions are articulated as, for example, in the Cartagena Protocol’s requirements relating to risk assessment and risk management, national government of the state has a broad policy to decide whether the risks are acceptable, and thereby to override a negative assessment, based on national protection goals.55 Associate with national policy created by each state, International Law recognizes the principle of due diligent.
The function of due diligence primarily as a standard of conduct that defines and circumscribes the responsibility of a state in relation to the 53 Rosemary Rayfuse, above n.13, 505.
54 Grant Wilson, above n. 45, 340.
55 Ibid.
56 Jan Hessbruegge, “The Historical Development of the Doctrines of Attribution and Due Diligence in International Law”, (2004) 36 4 New York University Journal of International Law and Politics, 286.
57 Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the conduct of third parties.56 Similarly, in international environmental law, the basic position is that states are not strictly liable for transboundary environmental damage.57 Rather, states are required to exercise due diligence to prevent significant transboundary harm emanating from their territory.58 In this context for example, due diligent depends on, inter alia, the nature of the specific activities, the technical and economic capabilities of states, the effectiveness of their territorial control, and the state of scientific or technical knowledge (Seabed Mining Advisory Opinion).
It is important to note here that as long as the state has acted in accordance with the principle of due diligence, it shall be free from international responsibility for the unintended consequences of technological developments or for unintentional or accidental acts.59 In such a situation, as Wilson notes, more notification preventing the global catastrophic or existential harm from occurring.60 Other problems relating to the capacity of international legal lie in the formal sources of international law.
Although general principle of law and customary international law are binding to all state, yet these only provide a basic framework in which the regulation of development and deployment of technology might take place.
Certain obligations covered in international agreement.
As it could be seen, making the international agreement is time-consuming Environment, Third Edition, (Oxford University Press, 2009), 217-218.
58 E.g., International Law Commission (ILC), Draft Article on Prevention of Transboundary Harm from Hazardous Activities, with Commentaries, Doc.
A/56/10 (2001), Article 3, paragraph 7.
59 Patricia Birnie, Alan Boyle, and Catherine Redgwell, above n. 57, 146.
60 Grant Wilson, above n. 45, 342.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 112 | Latifah, Imanullah The Roles of International Law on Technological Advances and cumbersome exercises, and moreover, the international agreement is generally focused on regulating specific activities, rather than future one.
It means that international agreement is limited in its substantive scope.
Besides that, the international agreement is only binding on their parties.61 There is no International Law forces a state become a party of the international agreement.
In addition, the other problem faced by international law relating to its role in technological advance is the absence of law enforcement mechanisms, even when a state has become a party to international agreement.
Another problem that equally important is the nature of subject involved in the development and deployment of technology.
The government of a state is not the only actor involved in the research, development and deployment of technology.
These activities were also conducted by individuals (both natural and corporate).
However, in order to achieve responsible research, a “governance” is required.
Recognizing the influence that private individuals can have in the development of ‘governance’ regimes, ranging anywhere along the spectrum from voluntary ethical framework involving self-regulation to formal regulatory of legislative measures adopted under national and/or international law.62 However, beyond the context of individual responsibility for international crimes, it may not be immediately apparent 61 Article 34 The 1969 Vienna Convention on the Law of Treaties.
62 Andrea Bianchi, Non-State Actors and International Law, (Ashgate, New York, 2009), xi.
63 Peter Singer, ‘Ethics and the Limits of Scientific Freedom’, (1996) 79 2 The Monist, 223.
64 Maria Paola Ferretti, ‘Risk and Distributive Justice: The Case of Regulating New Technology’ (2010) 16 3 Science and Engineering Ethics 501-515. what role international law can or should play in the regulation of these private actors.
This issue may be displayed by reference to the issue of the role of International Law in the regulation of scientific research.
The freedom to pursuit scientific knowledge is regarded as a fundamental right.
Although the precise limits of the boundaries remain open to debate, ethical limits to scientific enquiry have been identified where the nature of research is such that the process itself will have potentially adverse impacts on human subjects and non-human animals.63 Increasingly, perceptions as to the limits of the right have been influenced by changing conceptions of risks and the increasing recognition of the problem of uncertainty.64 This changing perceptions have given rise to legal regulation in some circumstance and, as analysis of the development of regulation of nuclear weapons and research on the human genome demonstrates that the presumption in favour of a freedom of gaining knowledge over prohibiting research only operates where the research is conducted “responsibly” and for “legitimate scientific purposes”.65 What constitutes “responsible” and “legitimate scientific research” depend not only on an assessment of scientific plausibility, but also on its desirability within the larger social development context,66 and on its compliance with international legal norms.
In this respect, international law can play a role in both articulating and in 65 Jack Stilgoe, Richard Owen, and Phil Macnaghten, ‘Developing a Framework for Responsible Innovation’, (2013) 42 9 Research Policy, 15681580.
66 Adam Corner and Nick Pidgeon, ‘Geoengineering the Climate: The Social and Ethical Implication’, (2010) 52 1 Environment: Science and Policy for Sustainable Development, 26.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Latifah, Imanullah The Roles of International Law on Technological Advances | 113 harmonizing the legal content of due diligent standards for what constitutes “responsible” or “legitimate scientific research” and in establishing mechanisms and institutions by or in which assessments of legitimacy and desirability can take place at the global level.
IV.
CONCLUSIONS AND SUGGESTIONS As a regulator of technological advances, International Law, despite its limitations, should have a role to play in regulating its development and use.
Many facts showed that International Law could reconcile the technological advances.
In order to enhance understanding of many interfaces between technological advances and law, especially international law, it is better to improve the chances of putting in place an international regulatory environment that stimulates technologies contributing to the human flourishing and at the same time, minimizing application that are unacceptable.
One of the accomplishments is through applying the general principles of law whenever there are no regulated norms in any disputes regarding to the technological advances.
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Conventions The 1868 St Petersburg Declaration Renouncing the Use, In Time of war, of Explosive Projectilles Under 400 Grammes Weight, 11 December 1868, enter into force 11 December 1868, LXVI UKPP (1868) 659.
The 1925 Geneva Protocol for the Prohibition of Poisonous Gases and Bacteriological Methods of Walfare, 17 June 1925, enter into force 8 February 1928, XCIV LNTS (1929) 65-74.
The 1969 Vienna Convention on the Law of Treaties, 23 May 1969, enter info force 27 January 1980, 1155 UNTS 331.
The 1972 United Nations Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, enter into force 26 March 1975, 1015 UNTS 163 (1976).
The 1976 Convention on the Prohibition of Military or Any Other Hostile Use for Environmental Modification Techniques.
The 1980 United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, enter into force 2 December 1983, 1342 UNTS 3.
The 1992 Convention on Biological Diversity, 5 June 1992, enter into force 29 December 1993, 1760 UNTS 79.
The 1993 Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons, 3 September 1992, enter into force 29 April 1997, 1974 UNTS 317.
The 1995 Protocol IV to the United Nations Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, on Blinding Laser Weapons 1995, enter into force 30 July 1998, 35 International Legal Materials 1218 (1996).
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The 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, enter into force 11 September 20013, 39 International Legal Materials 1027 (2000).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 116 | Latifah, Imanullah The Roles of International Law on Technological Advances United Nations Environment Programme (UNEP).
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Nairobi, Kenya: UNEP.
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.09| 143 Protecting Privacy On Personal Data In Digital Economic Era : Legal Framework In Indonesia Sinta Dewi Rosadi 1 1Faculty of Law, University of Padjadjaran, Bandung, Indonesia E-mail : sinta@unpad.ac.id Submitted: 2018-03-05 | Accepted: 2018-03-28 Abstract: Within the last five years it is noted that the people of Indonesia has become more aware of their privacy on personal data since their personal data is being collected, distributed and disseminated without their prior consent both by the government and businesses and their co-ventures .
These businesses tend to commit violations by using and disseminating customers’ data without the consent of their respective customers.
This article focuses on Indonesian legal framework on the Privacy on personal data.
It is argued that although there is existing laws in the privacy on personal data, however, those legal framework still developed in very sectoral nature.
It is submitted that the most suitable regulatory concept for Indonesia is a combination regulatory concept, or hybrid concept., which protect Indonesian’s and foreigner parties’ interests privacy on personal data.
To investigate existing laws in personal data protection, this research examines both national as well as international and regional legal framework in personal data protection.
Comparison between Indonesia and the practice of other ASEAN states is also conducted to determine the most suitable approaches in addressing the protection of personal data.
Keywords: privacy, personal data protection, digital, legal framework, Indonesia I.
INTRODUCTION Indonesia's digital economy potential is huge and rapidly increasing and it is predicted that digital economy would contribute to the national economy nearly of 100 billion US dollars annually by 2025 and Indonesia is expected to become the largest digital economy power in ASEAN with the projected value of e-commerce transaction reaching 130 million US Dollars.
One of the strong reasons for such a high value of digital transaction is due to the fact that Indonesian people is highly digital oriented i .
Data from the Indonesian Internet Service Providers Association (APJII) mention that Indonesian internet users are in the range of 52%, most of them access the internet on mobile for 4 hours per day.
Furthermore, there are currently 370 million active SIM cards in Indonesia, much larger than the Indonesian population that has nearly reached 270 million .
However, digital economy growth and utilization must be paired with privacy on personal data protection as one of the factors that will increase the trust in digital economy ecosystem.
Privacy on personal mailto:sinta@unpad.ac.id Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 144 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era... data protection involve the regulating and managing the processes of personal data that enabled the collecting, storing, sharing and analysing personal data as one form of privacy on personal data protection According to G20, 2017 Ministerial Declaration trust and security are fundamental to the functioning of the digital economy , without them , acceptance of digital economy will be limited and one of the initiatives is to encourage the development of national privacy on personal data strategy cover areas such regulatory framework, corporate culture and corporate privacy on personal data management system.
Privacy on personal data issue in Indonesia has recently emerged and becoming an increasing concern due to the way the government and private companies collects and processes privacy on personal data .
The problems which emerged in Indonesia comprise among others: (1) the emergence of complaints raised by either individual or group or organization against violations of personal information regarding disruption of the privacy on personal data of individuals through both print and electronic media; (2) the emergence of complaints from the public because their identity and privacy on personal data are not properly kept, for example in banking industry , or more specifically in credit card industry, where customer’s privacy on personal data can be accessed, disseminated and shared between bank and their agencies without the knowledge of the customer.
Similarly with other privacy on personal data, causing a great concern in Indonesia relates to eidentity card program where the government compile privacy on personal data.
According to the Sophos Report, Indonesia currently is in the top 10 spammers in the world with an estimated of 10,6 % junk mail originated from Indonesia, while according to the data released by the Association of Indonesian Internet Provider, the number of complaints relating to the advertisements entering into e-mail without user’s permission has reached 8389.
It indicates that privacy on personal data violations in Indonesia are increasing.
These problems occur due to the absence of rules that specifically protect the privacy on personal data of personal information either for regular or print media as well as electronic media.
Indonesian data protection rules are not compiled in a single law, instead, the Government has enacted sectoral laws regarding privacy on personal data with minimum legal protection.
Compared to other ASEAN Countries, Indonesia is not equipped with specific legislation on the Privacy on personal data yet.
Therefore the Indonesian government should immediately set up privacy on personal data protection regulation and determine which concept of regulation are the most appropriate to protect Indonesian’s and foreigner parties’ interests privacy on personal data.
II.
LEGAL MATERIALS AND METHODS In examining legal framework in the protection of personal data, this research use juridical normative method, which examine the consistency between Indonesain constitution and the law on the protection of personal data.
Comparison with other ASEAN states is also coducted to determine which approach is suitable for Indonesia.
Various legal materials ranging form primay, secondary as well as tertiary legal materials are used.
Such legal materials include the following legal instruments as well as other journal articles relevant to the topic: Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 145 • Universal Declaration of Human Rights • 1945 Indonesian Constitution • Indonesian Act No.
36 of 1999 on Telecommunications • Indonesian Act No.39 of 1999 concerning Human Rights • Indonesian Act No.
29 of 2004 on Medical Practice • Indonesian Act No.
17 of 2007 on National Development Planing Policy • Indonesian Act No.
11 of 2008 on Information and Electronic Transaction.
III.
RESULTS AND DISCUSSIONS Establishing the Concept of Privacy on personal data: Indonesian Legal Framework Indonesia is often ignored in discussion of privacy on personal data1 and in the Indonesian legal system, there is no specific regulation concerning privacy on personal.
The initiative to provide protection upon privacy on personal data is derived from the Human Rights Rules under the Constitution2 This is also driven by the influence of information technology development where most Indonesian people have access and learn that their privacy on personal data will be in jeopardize, and also because there are so many advertising practices that collect privacy on personal data without clear regulations.
Furthermore, the significant driving factor is the strong international and regional obligation either politically, economically as well as legal cooperation, since Indonesia has a strategic position in international trade, including electronic 1 Graham Greenleaf, Asian Data Privacy on personal data Law, Trade and Human Rights Perspectives, (Oxford University Press, 2014), 374.
2 Sinta Dewi Rosadi, above n.5, 8.
3 Indonesian legal scholars often refer to Article 28G of the 1945 Constitution as the rather vague basis for more specific privacy on personal data trade.
Therefore, the legal basis to establish a law on privacy on personal data privacy on personal data in Indonesia can be drawn from several sources: Privacy on personal data and Data Protection according to the Constitution of 1945.
Similar to several other countries, Indonesia perceives privacy on personal data as a part of human rights.
The Indonesian Constitution of 1945, which is the primary source of Indonesian laws, does not explicitly mention privacy on personal data, but recommends protecting human rights.
The Preamble of said Constitution states that human rights are the ideal as well as Indonesia's national goal.
The national goal is to protect the citizens of Indonesia and the whole country, as well as to promote the general welfare and the intellectual life of the nation and the establishment of world order based on freedom, social justice, and world peace.
Furthermore, the concept of privacy on personal data and data protection can be found in the Amendment to the Constitution of 1945, articles 28F and 28G3.
Even these articles do not directly mention the privacy on personal data, but can be considered as a legal basis for regulation on the matter.
Although the articles have not been applied directly in the regulation in Indonesia, but there is no doubt that the articles are concerned with human dignity as a human right.
legislation.
Article 28G of the 1945 Constitution: Each person shall have the right to protection of their personal selves, families, respect, dignity and possessions under their control and shall have the right to security and protection from threat of fear for doing or for not doing something which constitutes a human right.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 146 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era... Privacy on personal data according to the Provisions on Human Rights Human Rights Law in Indonesia Indonesia adopted UDHR through its National Act No.39 of 1999 concerning Human Rights (UU 39/1999) which also reiterates the right to privacy on personal data.
Article 31 and 32 of this Act state that no one shall be subjected to arbitrary interference with his home and with his correspondence.4 Enacting this Act is an evidence that Indonesia has a moral and legal responsibility to respect, execute, and uphold the Universal Declaration on Human Rights promulgated by the United Nations, and several other international instruments concerning human rights ratified by the Republic of Indonesia.
In the case of violations of Article 31 and 32 of UU.39/1999, Indonesia provides a mediation settlement conducted by National Commission of Human Rights5.
Concerning issues of data, Human rights law provides Article 12, which states: "Every person is entitled to protection of personal development, to get education, to educate himself, and improving the quality of human life in order to be faithful, devoted, responsible, noble, happy, and prosperous in accordance with human rights."
4 Article 30 of Act 39 of 1999 says : (1) No one shall be subject to arbitrary interference with his home.
(2) No one shall set foot in or enter the enclosure of a house or enter a house without the permission of the person who lives there, except for reasons provided for under prevailing legislation.
Article 31 of Act 39 of 1999 : says : No one shall be subject to arbitrary interference with his correspondence, including electronic Based on the above mentioned articles, it is evident that Indonesia seeks to protect human rights even though privacy on personal data not stated specifically but the article 21 regarding the right to personal integrity has perceived as to protect privacy6 Article 21 of the Human Rights Act states: "Every person has the right to personal integrity, both spiritual and physical.
And therefore there can be no object of research without consent from him. "
Article 29 states: "(1) every person has the right to protection of self-personal, family, honour, dignity, and his property.
(2) Every person has the right to recognition as a person before the law wherever he is.” Privacy on personal data according to Law on Telecommunications Basically, this Law describes the government's protection of civil rights on telecommunications issues.
However, protection related to privacy on personal data and human rights can also be found in articles 38-42 of Law No.
36 of 1999 on Telecommunications.
In this Law, privacy on personal data specifically stipulated in Article 38: “Every person is prohibited from doing acts that may cause physical and electromagnetic interference on telecommunications services” communications, except upon the order of a court or other legitimate authority according to prevailing legislation 5 The role of National Commission of Human Rights as mediator on human rights issue can be seen in Article 76, Article 90 to 99 of UU 39/1999.
6 Sinta Dewi, ‘Balancing Privacy Rights and Legal Enforcement : Indonesian Practice’s, (2012) 5 International Journal of Liability and Scientific Enquiry, 232.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 147 Article 40: "Every person is prohibited from conducting wiretaps on information transmitted over telecommunications network in any form."
Article 42: (1) The telecommunications service provider is obliged to keep confidential the information that is sent and or received by its telecommunications services customers through telecommunications networks and or telecommunications services provided.
(2) For the purposes of the criminal justice process, the telecommunications service provider may record information sent and or received and may provide the necessary information upon: a. written request from the Attorney General or the Chief of Police of the Republic of Indonesia for certain criminal acts; b. investigator’s request for certain criminal acts in accordance with applicable laws.
(3) The provisions on the procedures regarding requests for, and granting of the recorded information referred to in paragraph (2), shall be regulated by a Government Regulation.
Privacy on personal data in the Law of Health Privacy on personal data also stipulated in Law No.
36 of 2009 on Health, which stated in Article 57 that: "Everyone is entitled to its personal health conditions confidentiality that has been presented to health care providers."
Article 47 (2) of Law No.
29 of 2004 on Medical Practice also states that: "Medical records referred to in paragraph (1) shall be stored and kept confidential by the physician or dentist and the management of health-care facilities.” Within the Indonesian legal system, the protection provided by the government to the citizens is aimed to protect the privacy on personal data of their medical history from any disclosure made by health care providers.
Individual's medical history is a part of human dignity and cannot be disclosed without the patient's consent.
In other words, health care providers are prohibited from disclosing any information about the patient to other third party.
Privacy on personal data in Electronic Transactions Law The growth of the internet and advances in technology has led to the passage of Electronic Information and Transactions Law No.
11 of 2008 (the “ITE Law”).
The ITE Law prohibits the use of information acquired through electronic media containing privacy on personal data related to an individual without the consent of such person.
The ITE Law further provides that anyone deliberately and without having valid rights shall be prohibited from changing, adding, reducing, transmitting, destroying, eliminating, transferring or hiding electronic information and/or electronic documents owned by any other person or owned by the public.
Concept of Regulation for Indonesia Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 148 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era...
In regulating privacy on personal data, the countries have their own regulatory concept.
From practical point of view, it is found that there are very large differences in concept regulations especially between United States and the European Union.
Although these two regions have, historically common perception in terms of political economy and culture, but with regard to the privacy on personal data settings there are fundamental differences in terms of the government role in regulating information.
The roots of the differences between two jurisdictions is due to the differing legal approaches.7 In the USA, although the legal culture is quite familiar with privacy on personal data, its regulatory concept is based on sectoral regulations, by which the government only regulates the areas that are considered necessary to be protected by law.
Other areas are entrusted to the industry (selfregulation).
On the other hand, the European Union (EU) regulates privacy on personal data more comprehensively in a single legislation covering all sectors namely public and private sectors.
The basic of privacy on personal data arrangements in the EU, has clearly put privacy on personal data as a fundamental right protected by the human rights regime; hence, provide more clear direction.
In addition, in regulating privacy on personal data the EU tries to balance the two interests, namely the protection of privacy on personal data as a fundamental right which is governed by the regime of human rights both domestically and internationally, and to ensure the smoothness of traffic information 7 Paul M. Schwartz and Karl-Nikolaus Peifer, ‘Transatlantic Data Privacy Law’, (2017) 106 Georgetown Law Journal, .2. and trade among member countries.
This comprehensive approach in privacy on personal data basic arrangement is to create harmony in regulating privacy on personal data, due to the fact that each EU member has its own laws but applying different standard arrangements that cause difficulties in transferring information among member countries and ultimately leads to hamper trade.
However the EU approach has continually over the sixty-five years influenced national legislation on every continent8 Until now there are some similarities in the regulations regarding the privacy on personal data at the multilateral, regional and national level of certain countries.
From this point of view it can be observed that: 1.
There is a strong inclination regarding the efforts to standardize regulation on the privacy on personal data; 2.
There are similarities meanings of the key terms used, such as: data; privacy on personal data; sensitive personal data; personal information; data processor; data processing; data controller; commissioner, etc.
; 3.
There are similarities in general principles regarding the privacy on personal data issues; 4.
Regulations concerning privacy on personal data are not limited only to apply to public sector, but also applied to private sector, either through "legislative approach", "selfregulatory", and "co-regulatory"; 5.
To facilitate the international trade, the adequate protection relating to privacy on personal data particularly 8 Marc Rotenberg , Julia Horwitz, Jeramie Scott (ed), Privacy on personal data in the Modern Age, ( The New Press, 2015), 72.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 149 the "trans-border flow of data”, is a prerequisite that must be considered.
Considering the above mentioned, in addressing the direction and ongoing international trend, Indonesia should take the following steps: 1.
The existence of a Law on Privacy on personal data is a necessity that cannot be postponed any longer, because it is very urgent for a variety of national interest and as to facilitate international relations of Indonesia, especially in expediting trade, industry, transnational investment; 2.
There have been many complaints which led to demands for damages particularly upon marketing activities in accessing, compiling, distributing and trading in customers’ privacy on personal data; 3.
Implementation of E-Government Program especially Electronic Identity Program (E-KTP) in which the government collects privacy on personal data of the people without adequate protection that leads to a high potential of violations.
4.
The existence of this Law will also be able to foster Good Governance and to achieve the Clean Government.
It is recognized that each regulatory concept has certainly its own advantages and disadvantages.
In term of comprehensive regulatory concept, its advantages are among others: 1.
Legal certainty, because privacy on personal data is decisively regarded as a basic right that should be protected by the state; 9 Laws No.
11 of 2008 on Information and Electronic Transaction.
2.
Strictly regulate the government and private sector activities; 3.
It is suitable for countries having a Civil Law legal system that puts the legislation as one of the main sources of law; 4.
This regulatory concept is suitable for countries that do not have yet privacy on personal data protection Act because it contains the principles and key mechanisms that must be done to protect the privacy on personal data of information.
By observing the international and regional developments which have shaped the globalization of information that has put Indonesia as part of a world information society9, this requires the establishment of regulations that will protect the privacy on personal data of electronic information.
Moreover, the need for government to support the development of information technology through regulations is to make the use of information technology safely, as well as reduce the potential losses that have been incurred in Indonesia, as a result of invasion of privacy on personal data.
In addition, the urgency of privacy on personal data regulation on personal information in Indonesia has been mandated in the Long Term Development Plan 2005-2025, in anticipation of the implications of the convergence of telecommunications, information technology, and broadcasting10.
Therefore, Indonesia must establish a good and well-coordinated system of information technology law as to achieve a certainty and the legal order.
Legal order is the ultimate goal of a good legal system by: (1) recognizing and balancing between 10 Law No.
17 of 2007 on National Development Planing Policy Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 150 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era... private rights and public rights, (2) determining the restriction of such rights, and (3) regulating such rights11.
.
This opinion is in line with the opinion of Lawrence M. Friedman, whereas building the legal system must fulfil three elements namely structure, substance and legal culture12.
Structure means, the extent to which the Indonesian court can resolve the case of privacy on personal data invasion.
This is not an easy task since it involves human resource capability, i.e.
the ability of judges to understand the development of technology and be responsive towards new developments.
Yet, the responsive law requires participation of all parties concerned, including judges13 who can implement legislation into cases for which the injured party may claim for damages.
Taking into account the above mentioned development, Indonesia should develop a specific legislation on privacy on personal data.
In formulating a good concept of regulation, the initial process starts with the good goal setting.
As stated by Mochtar Kusumaatmadja, law is not only the rules and principles that govern human life in society, but also covers institutions and processes to realize that law in the reality14.
Meanwhile, Roscoe Pond in the Theory of Interest argues that the law should meet the interests as a demand to reach by humans both as individuals and as a group or association and 11 Roscoe Pond, My Philosophy of Law, (Julius Rosenthal Foundation Northwestern University, 1941), 249.
12 Lawrence M. Friedman, American Law: An Introduction, (Norton, W. W. & Company, Inc, 1997), 19 13 Philippe Nonet and Philip Selzenick, Law & Siciety in Transition, ( Transaction Publishers , 2001), 97 14 Mochtar Kusumaatmadja, Legal Concept in the Development (Konsep-Konsep Hukum dalam Pembanguna) , (Alumni, 2006), 12 the law should regulate as to how these interests can be achieved 15.
By means of the Law A good concept of regulation should cover: principles, rules, processes, and institutions.
If it is associated with the concept of privacy on personal data regulation, then such regulation should include: 1) The principle to be the basis in establishing a regulation should consider both national and international developments.
The principles of information privacy on personal data regulation should be based on the 1945 Constitution wherein Article 28 (G) has clearly recognized that the right to privacy on personal data must be protected16.
In addition, the basic privacy on personal data protection has been stipulated in Law No.
11 of 2005 on the Ratification of the ICCPR, which clearly recognizes privacy on personal data as one of the fundamental rights, and declares that the state must protect privacy on personal data.
As for electronic transactions, privacy on personal data has been regulated in Law No.11 of 2008 on Information and Electronic Transactions.
Thus, from the legal point of view, privacy on personal data protection in Indonesia has had a legal source.
15 Roscoe Pond Teory of Interest : Interest is a demand or desire or expectation which human beings, either individually or in groups or association or relations, seek to satisfy.
See Roscoe Pondabove n. 17, 16 16 Each person shall have the right to protection of their personal selves, families, respect, dignity and possessions under their control and shall have the right to security and protection from threat of fear for doing or for not doing something which constitutes a human right.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 151 2) In addition to the basic principles, the concept of regulation must also consider the so called principles of fair use of information (fair information principles) which calls for standards of practices required to ensure that entities that collect and use personal data provide adequate protection17.
These standards that have been internationally recognized and as such adopted by many countries such as: the principles of the OECD Guidelines in 1980, the EU General Directive 1995, and the APEC Framework 2004, these include the following principles: a) Principle of limitation in the collection of information.
The information obtained, processed and disseminated should be limited only to lawful and fair purposes and should be upon the knowledge and consent of the information owner.
b) Principle concerning the quality of information.
Personal information must be obtained in accordance with the intent and purpose of its collection.
Quality of information must be maintained in terms of its accuracy, completeness and updates.
c) Principle of the objective.
Personal information may only be opened in accordance with its intended use.
d) Principle of retention.
The retention of information for a particular purpose should not be longer than the necessary period of time.
e) Principle of maximum security on personal information.
Personal 17 James Waldo, Herbert S. Lin, Lynette I. Millet (ed) Engaging Privacy and Information Technology In information shall be protected by adequate security system in order to avoid the risk of losing or unlawful act such as access, destruction, use, modification or disclosure of such information by other parties.
f) Principle of transparency.
The management of information must take necessary steps so that the information owners can learn about the kinds of personal information held by the data manager.
g) Principle of individual participation of information subject.
Information’s owners shall have the right to access their personal information maintained by the data manager, including the right to make corrections to their personal information.
h) The principle of accountability.
Information manager is fully responsible to implement the above mentioned principles.
3) Furthermore, there must be clear definitions of the substantial terms to be mentioned in the regulation, such as: a) Use of the term “data” or “information”.
As discussed already in the previous chapter, countries use different terms.
The European Union uses the term “data”, the U.S. uses the term “information”, meanwhile Indonesia in article 26 of the ITE Act A Digital Age, (the National Academy of Science Press2007), 48.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 152 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era... used the term “privacy on personal data”18 .
b) In the discussion concerning privacy on personal data, the use of the term privacy on personal data and information are often used interchangeably.
Actually, these two terminologies are not the same since information refers to data that has been processed so it can be understood by a wider audience, while data refers to the starting data or raw data materials as a source of information19.
Practically, countries do not distinguish the meaning of privacy on personal data and personal information; hence, both terms are used interchangeably and have been accepted as one of the types of privacy on personal data rights that must be protected20.
With regard to e-commerce, “information” is more precise term than “data”, because in the cyber world privacy on personal data can be accessed, manipulated and disseminated so that it may become new information for others.
c) Scope of regulation must be clear.
The object to be protected should be clearly defined, whether the information that may be accessed manually or electronically, since in Indonesia there is no specific law governing the protection of personal information done through manual transaction.
As for privacy on personal data in electronic 18 Unless otherwise provided by the legislation, the use of any information through the electronic media regarding privacy on personal data should be made with the approval of the concerned person.
transactions, it is arranged already in the ITE Law, although the arrangement is still too common.
Therefore it is very important that the scope of arrangement covers both manual information as well as electronic information.
It is also of the utmost importance to manage due to violations of financial information especially credit card information in Indonesia which has prompted dissemination practices of financial information on the Indonesian credit card holder without the knowledge of the information owner.
d) In addition, the subject to be regulated by the law must be determined.
The question is whether the subject is all parties involved as in the EU, namely the government, individuals, and private, or sorted out as applied in the US.
Since Indonesia does not have yet a specific regulation on the privacy on personal data of personal information, then a regulation that covers the whole, namely the government, private sector and individuals will be more preferable.
The regulation can be in general, and if there are other business sectors that need to be specifically regulated, then it can be dealt separately.
e) Legislation should also regulates exceptions in order for personal information to be disclosed for special cases, such as request for disclosures for the purpose of 19 Abu Bakar Munir , Siti Hajar Mohd Yasin, Md.
Ershadul Karim, Data Protection Law in Asia.
(Thomson Reuteurs Hongkong Limited, 2014), 68 20 Practice in the United States, European Union, Hong Kong and Singapore.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 153 national security, national defence, public interest and judicial process.
4) Board of Supervisory In achieving a good concept of regulation, involvement of both institution and process is a must21.
Karl Llewellyn, one of the leading legal realism of the United States argues that the law as an institution plays a very important role in the formation process of law.
In the lawmaking process, the institution has an obligation to be able to carry out its duties properly and must always be accountable for all of his duties to the public22.
In relation to the concept of information privacy on personal data regulation in Indonesia, the institution’s function is vital in carrying out the law so as to effectively oversee and resolve legal issues.
The respective institution is divided into two types, namely: Public institutions consist of: 1.
The court as an adjudication institution is authorized to settle claims of the people’s for privacy on personal data violations; 2.
Information Commission has the duties to: a) disseminate the law to the public including the industrial sectors as to make them understand their rights and obligations with respect to the privacy on personal data of information; b) advise the Minister on matters related to the implementation of the law; c) conduct research on, and monitoring the development of the information process and 21 Mochtar Kusumaatmadja, above n. 12, vi.
technological advances to derive a knowledge of the adverse impacts of these developments on privacy on personal data of information; d) encourage associations and institutions to prepare and disseminate to its members the rules of practice (code of practice) as guidance for fulfilling the law’s requirements; e) As mediator to resolve information privacy on personal data disputes outside the court.
Private institutions are institutions set up by the private sector to participate in regulating information privacy on personal data.
These institutions take the form of business associations and other private institutions that formulate the rules of practice (code of practice) in accordance with the mandate of the law.
As for the process, is how the legislation can be implemented and adhered to by all related parties that will lead to a legal certainty.
Good process can be carried out through two approaches 1.
First, through a top-down approach, where this approach is one of the effective ways to take, especially when the new regulation implemented in a country.
Part of Indonesian people know already the term privacy on personal data particularly among artists and educated people, however, most people is not informed of it therefore socialization by the government to the public is imperative In a top down-down approach, government and related industrial 22 Freeman , M.D.A (Ed), Lloyd’s Introduction to Jurisprudence, (Sweet & Maxwell, 1994), 661 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 154 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era... sectors must come together in socializing legislations, policies and rules of thumb (code of practices) and implementing legislation by imposing forceful sanctions to violators.
In this case, the industrial sector should also be encouraged to apply the rules of thumb consistently, i.e.
to obey and implement the law and will take action by imposing sanctions against any violation committed by any of its members.
Through the co-regulatory concept, there will be a good cooperation between the government and private sectors.
2.
Second, through the bottom up approach, namely encouraging the public to learn and understand the law through education and publication.
Education can be done through counselling to the public by way of discussions, seminars and provides feedback mechanism from the community through non-profit organizations or educational institutions.
In addition, publication organized by the academicians with regard to the information privacy on personal data law would greatly help the public's understanding23.
In most countries that have regulated the privacy on personal data (except the United States, Japan and Singapore), an independent institution has been formed whose task is to oversee the implementation of the law24.
The establishment of an 23 Warren B. Chik.
‘The Lion, the Dragon and the Wardrobe Guarding the Doorway to Information and Communications Privacy on personal data on the Internet’, (2005), 14 1, International Journal of Law and Information Technology, 22-23.
24 In the Directive on the Protection of Information (95/46) the authority of supervisory agency provided for in Article 28.
The Agency has a very broad authority, i.e conducting surveillance, independent institution is in order to ensure the effective implementation25 of the law In order to perform their duties effectively, this institution must be able to position itself as an independent agency even though this particular agency is appointed and financed by the government.
The agency has the authority to oversee the implementation of the law; issuing guidance on the privacy on personal data principles that must be adhered by each sector; investigating individual complaints and oversee the preparation and implementation of the rules of conduct (code of conduct) made by industry sector.
Furthermore, this supervisory agency also acts as a mediator for resolving disputes out of court.
In the event such dispute cannot be resolved by the agency’s mechanism, then it can be submitted to and filed in the court.
International and Regional Obligations As Indonesia has ratified and signed various international instruments, hence, Indonesia has a legal basis to make laws that apply at the national level.
As an APEC member, Indonesia has adhered to the socalled APEC Privacy on personal data Framework 2004, in which its preface clearly mentions that “Potential of electronic commerce cannot be realized without the cooperation of governments and businesses as to develop and implement technology and policies that address issues including privacy on personal data”26 The APEC membership is expected to stimulate the national investigation and intervention in the management of personal information.
25 Handbook on European Data Protection Law (Publications Office of the European Union, 2014), 114.
26 Sinta Dewi, Perlindungan Privasi Atas Informasi Pribadi dalam E-Commerce Menurut Hukum Internasional, (Widya Padjadjaran, 2009), 70 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 155 legislation to create a balance between protecting and promoting economic cooperation, particularly in the electronic trading among members.
The European Union is a very attractive market for Indonesia as the largest market for the nonoil and gas exports, and so far European investors also have proved to be the most stable and reliable partner for Indonesia.
So, it is important for Indonesia to overcome all the challenges and constraints that must be faced when doing business across the country.
In other words, it is important for Indonesia to meet the EU standards regarding privacy on personal data.
Not only for economic reasons, the privacy on personal data policy should also be introduced as part of the law concerning human rights.
Privacy on personal data is a part of human rights and the protection of privacy on personal data is one way to honour this right.
In Indonesia, concerns about the protection of privacy on personal data is growing since there is no clear legislation yet.
Therefore, the issues of privacy on personal data have become an urgent agenda.
Many countries establish laws that deal with this matter, but there is no law in Indonesia regulating this matter.
Improvement and development of science and technology, globalization, and the power of the media have created the need for privacy on personal data.
As an Asian countries, Indonesia has found it is quite difficult to define and regulate privacy on personal data.
Most countries in Asia are not familiar with privacy on personal data.
27 Asean Declaration of Human Rights was deemed to have undermined, rather than affirmed, international human rights law and standards.
The drafting process as well as the substance of the Declaration are considered as fatally flawed.
See: http://www.icj.org/icj-condemns-fatally-flawedasean-human-rights-declaration/, http://theconversation.edu.u/asean-human-rightsPrivacy on personal data issues have not been considered as "serious" in Asia, including Indonesia.
Most Asian people traditionally live in communal societies, which do not pay attention to privacy on personal data.
Privacy on personal data terms as a human right derived from the West has become more and more important in the era of information and communication technology (ICT).
The 21st Summit of the Association of South East Asian Nations (ASEAN) was held in Phnom Penh in November 2012.
One of the outcomes/resolutions is the adoption of the ASEAN Human Rights Declaration by the ten member states.
This declaration raised many criticisms from senior United Nations officials, human rights experts and hundreds of civil society and grassroots organisations at the national, regional and international levels; nonetheless it was still adopted by ASEAN leaders as an ASEAN human rights law and standard.27 For a long period of time the Asia Pacific region has been disparaged as the only geographic block not to have a regional human rights instrument.
Africa has the African (Banjul) Charter on Human and Peoples' Rights, the Americas have the American Convention on Human Rights and Europe has the European Convention on Human Rights.
Conventions bind upon States once they ratify it, that is, it is a legally binding treaty.
A declaration, on the other hand, is not legally binding, but does carry moral weight.
For example, the UDHR is not a binding treaty but over time has come to have enormous force and influence in international human rights law.
Furthermore, declaration-a-step-forward-or-a-slide-backwards10895, http://uncut.indexoncensorship.org/2012/11/asean -human-rights-declaration/, http://www.hrw.org/news/2012/11/19/civilsociety-denounces-adoption-flawed-aseanhuman-rights-declaration.
http://www.icj.org/icj-condemns-fatally-flawed-asean-human-rights-declaration/ http://www.icj.org/icj-condemns-fatally-flawed-asean-human-rights-declaration/ http://theconversation.edu.u/asean-human-rights-declaration-a-step-forward-or-a-slide-backwards-10895 http://theconversation.edu.u/asean-human-rights-declaration-a-step-forward-or-a-slide-backwards-10895 http://theconversation.edu.u/asean-human-rights-declaration-a-step-forward-or-a-slide-backwards-10895 http://www.africa-union.org/official_documents/treaties_%20conventions_%20protocols/banjul%20charter.pdf http://www.africa-union.org/official_documents/treaties_%20conventions_%20protocols/banjul%20charter.pdf http://theconversation.edu.au/%28http:/www.oas.org/en/iachr/mandate/Basics/3.AMERICAN%20CONVENTION.pdf http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/CONVENTION_ENG_WEB.pdf http://uncut.indexoncensorship.org/2012/11/asean-human-rights-declaration/ http://uncut.indexoncensorship.org/2012/11/asean-human-rights-declaration/ http://www.hrw.org/news/2012/11/19/civil-society-denounces-adoption-flawed-asean-human-rights-declaration http://www.hrw.org/news/2012/11/19/civil-society-denounces-adoption-flawed-asean-human-rights-declaration http://www.hrw.org/news/2012/11/19/civil-society-denounces-adoption-flawed-asean-human-rights-declaration Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 156 | Rosadi Protecting Privacy on Personal Data In Digital Economic Era... a declaration is also often the precursor to a binding treaty.
For instance, UDHR led to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which are collectively known as the international bill of rights.
So the new ASEAN Human Rights Declaration should perhaps be viewed as a first step on the path towards greater protection of human rights in the region, rather than an end in itself.
IV.
CONCLUSIONS AND SUGGESTIONS The most suitable regulatory concept for Indonesia is a combination regulatory concept, or hybrid concept.
This regulatory concept combines several approaches in regulating privacy on personal data particularly in e-commerce the reason behind selecting this concept is due to the rapid growth of information technology, so that the personal information may easily be accessed, processed, compiled and distributed to others.
Hence, the regulatory concept must combine several approaches: First, through the legislation that applies the principles and international standards that will encourage the harmonization of the laws and to reduce the potential for conflicts between states.
Second, through the market approach (market-based solution), online industries via their associations are encouraged take active part in protecting customers’ privacy on personal data, through privacy on personal data policy in the form of a statement that the industry will protect consumer privacy on personal data by implementing fair information principles.
Third, through technology approach, on the reasons that the invasion of privacy on personal data in ecommerce is due to the advancement of information technology, so one way of protection measures is to take advantage of technology, among others with PETS (Privacy on personal data Enhancing Technology).
Fourth, through corporate privacy on personal data rules approach in the form of code of conduct that applies to multinational companies especially those who are doing online business.
These practical rules should bind the multinational companies and all of their affiliates.
REFERENCES Journal Articles Schwarts, M, Paul and Nikolaus, Karl, Peifer, ‘Transatlantic Data Privacy Law’, (2017) 106 Georgetown Law Journal.
Sinta Dewi, ‘Balancing Privacy Rights and Legal Enforcement: Indonesian Practices’, (2012) 5 International Journal of Liability and Scientific Enquiry.
Sinta Dewi, ‘Concept Regulation for Privacy on personal data in The Applications of Biometric Smart Card’, (2017) 4 2, Brawidjaya Law Journal.
Warren B. Chik, ‘The Lion, the Dragon and the Wardrobe Guarding the Doorway to Information and Communications Privacy on personal data on the Internet” ( 2005) 14 1, International Journal of Law and Information Technology Books Abu Bakar Munir, Siti Hajar Mohd Yasin, Md.
Ershadul Karim, Data Protection Law in Asia.
(Thomson Reuteurs , 2014) Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Rosadi Protecting Privacy on Personal Data In Digital Economic Era...| 157 Friedman, M, Lawrence, American Law: An Introduction, (Norton, W. W. & Company, Inc, New York, 1997).
Greenleaf, Graham , Asian Data Privacy on personal data Law, Trade and Human Rights Perspectives, (Oxford University Press, 2014) Rotenberg, Marc Rotenberg , Horwitz, Julia , Scott, Jeramie Scott (ed), Privacy on personal data in the Modern Age, (The New Press, 2015) M.D.A, Freeman, (Ed).
Lloyd’s Introduction to Jurisprudence, (Sweet & Maxwell, 1994) Mochtar Kusumaatmadja, Legal Concept in the Development (Konsep-Konsep Hukum dalam Pembanguna), (Alumni, 2006) Nonet, Philippe and Selzenick, Philippe, Law & Siciety in Transition, (Transaction Publishers, 2001) Pond, Roscoe, Jurispridence Vol IV, (West Publisihing, 1959).
Sinta Dewi, Perlindungan Privasi Atas Informasi Pribadi dalam E-Commerce Menurut Hukum Internasional, (Widya Padjadjaran, 2009) Sinta Dewi Rosadi, Privacy on personal data from International Law, Regional and National Perpectives , (Refika Aditama, 2015).
Waldo, James, Lin, S, Herbert, Millet, I, Lynette I.
(ed) Engaging Privacy and Information Technology In A Digital Age, (The National Academy of Science Press, 2007) Legislations Universal Declaration of Human Rights 1945 Indonesian Constitution Indonesian Act No.
36 of 1999 on Telecommunications Indonesian Act No.39 of 1999 concerning Human Rights Indonesian Act No.
29 of 2004 on Medical Practice Indonesian Act No.
17 of 2007 on National Development Planing Policy Indonesian Act No.
11 of 2008 on Information and Electronic Transaction.
Handbook, Report, Paper Handbook on European Data Protection Law (2014), Publications Office of the European Union, Brussel.
Internet Unleasing Indonesia Digital Economy Potential, http://www.thejakartapost.com/acade mia/2017/08/07/ (acesses 17 Januari, 2017) Roadmap for Digitalisation: Policies for Digital Future http://www.g20.utoronto.ca/2017/170 407-digitalization-annex1.html, (accesses 12 December, 2017) http://www.thejakartapost.com/academia/2017/08/07/ http://www.thejakartapost.com/academia/2017/08/07/ http://www.g20.utoronto.ca/2017/170407-digitalization-annex1.html http://www.g20.utoronto.ca/2017/170407-digitalization-annex1.html
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.08 | 249 Conflict in Management of Passive State Administrative Decision in State Administrative Dispute Agustien Cherly Wereh1, Istislam2 1Faculty of Social Science Universitas Negeri Manado Email: mdo.lulu@yahoo.co.id 2Faculty of Law, Brawijaya University Email: istislam@ub.ac.id Submitted : 2018-10-05 | Accepted : 2018-10-22 Abstract: The government’s task to achieve the state’s objective is provided in the preamble of the 1945 Constitution of the Republic of Indonesia.
In the governance system, societies often encounter tough situation, while administrative law has specially actualised constitutional norms of correlation between the state and its societies.
The administrative management in the Law is seen as essential instrument of a democratic state of law, in which decision and/or act is determined by an entity and/or a government official or government apparatus involving executive, judicative, and legislative entities that run governmental functions which are possible to be examined at court.
The research problem presented in this research is why there are differences between positive-passive system (stelsel) and negative-passive system regarding the management of state administrative decision.
This research employed normative legal research along with prescriptive analysis method.
The research result indicates that the emergence of conflict in passive administrative state management is caused by the inaccuracy of legislation in formulating laws.
Keywords: conflict, passive state administrative decision, administrative disputes, state administrative court, judicature I.
INTRODUCTION According to the provision of Article 1 Paragraph (2) of the 1945 Constitution of the Republic of Indonesia of 1945, the sovereignty is held by people and implemented in compliance with the Constitution, and Article 1 paragraph (3) of the 1945 Constitution of the Republic of Indonesia asserts that Indonesia is a state of law.
It indicates that the governance of the Republic of Indonesia shall be based on the principles of sovereignty of the people and the state of law.
Therefore, all forms of decisions and/or any administrative acts of government shall comply with the sovereignty of the people and law reflecting Pancasila as the ideology of the state, not comply with the power attached to the position of government officials.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 250 | Wereh, Istislam Conflict in Management of Passive State Administrative Decision… The decisions and or acts toward people must be in line with the provisions of legislation and general principles of good governance (further stated as AUPB).
1 Monitoring on the decision and/or act is a form of a test to see whether citizens concerned are treated according to the existing law and should be in line with the principles of legal protection that can be effectively performed by state bodies and state administrative court (further stated as PTUN) that is known independent.
Therefore, systems and procedures regulating the implementation of government administrative tasks and development must be regulated in law.
Administrative Laws (hereinafter referred as UUAP) principally actualises the constitutional norms of the correlation between the state and its people.
The management of government administration in the law is an important instrument of democratic state of law, in which decisions and/or acts are determined by government bodies and/or officials or state apparatuses involving executive, judicative, and legislative bodies that run governmental functions that enable investigation at court.
All of those form ideal values of a state of law.
The management of government administration guarantees that decisions and/or acts of government bodies and/or officials to the people cannot be made or performed arbitrarily.
The law will not easily allow people to accidentally become the victim of the state power.2 Moreover, the law is also known as a transformed AUPB that has been implemented for years in the governance, concreted into binding law.
1 Titik Triwulan Tutik, ‘Analisis Hukum Tata Negara’, (2015) Jurnal Hukum dan Pembangunan 41 1, 20 The management of government administration is principally a measure to build main principles, ideas, behaviours, cultures, and democratic, objective, and professional administrative acts to achieve justice and legal certainty.
This law is a set of measures to re-manage the decisions and/or acts of government bodies and/or officials according to the provisions of legislation and AUPB.
The law is intended not only to serve as a legal protection for government apparatuses but also as instrument to improve the quality of government services to public.
Thus, the existence of the law could create good governance for all government bodies or officials in both regional and central areas.
In the governance process, societies often encounter demanding bureaucracy, limited state apparatuses, lack of professionalism of government officials, inaccuracy caused by the officials, bribery, and so forth, all of which are considered as disobedience of the apparatuses to AUPB.
All those problems trigger the consideration of making UUAP.
Interestingly, it is stated in Article 53 of UUAP that: 1.
The deadline given to determine and/or make decisions and/or acts complies with the provisions of legislation.
2.
If the provisions of legislation does not set the deadline of the responsibility as meant in Paragraph (1), government bodies and/or officials must determine and/or make decisions and/or perform acts no later than 10 (ten) working days after a lawsuit is completely submitted to the government bodies and/or officials.
3.
If a government body and/or an official has not determined and /or make a 2 Abu Tamrin, ‘Perubahan Konstitusi dan Reformasi Ketatanegaraan Indonesia’ (2015) Jurnal Cita Hukum 3 1, 16 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wereh, Istislam Conflict in Management of Passive State Administrative Decision… | 251 decision and/or perform any act based on the deadline as mentioned in Paragraph (2), the lawsuit is granted lawfully.
4.
The claimant submits a lawsuit to court to hear a decision regarding the accepted lawsuit as mentioned in Paragraph (3).
5.
Court is obligated to decide a proposal as mentioned in Paragraph (4) no later than 21 (twenty one) working days since the proposal is submitted.
6.
A government body and/or official must determine a decision in order to execute court decision as mentioned in Paragraph (5) no later than 5 (five) working days since court decision is released.
Article 53 Paragraph (3) of UUAP states that: If, within 10 days, a government body and/or an official does not determine and/ or make a decision and/or does not act, the proposal is lawfully granted.
In other words, the public merely needs to look forward to the decision accepted by PTUN.
What is mentioned earlier is contrary to Article 3 Paragraph (2) of Law Number 5 of 1986 on State Administrative Court, (LNRI of 1986 Number 77), (further stated as UU PTUN), stating: if a state administrative body or official does not stipulate a decision that is proposed and the stipulation of the data of the legislation is past the deadline, it is concluded that a state administrative body or official has rejected to release the decision.
This is supported by Article 15 sub (c) of the Regulation of Supreme Court (Perma) No.
5 of 2015 on Litigation Guidelines to obtain Decision regarding the acceptance of lawsuit proposal to obtain Decision and/or 3 Djoko Prakoso, Peradilan Tata Usaha Negara, (Yogyakarta: Liberty, 1988), p. 58 act of a government body and/or official, stating: (c).
“stating that the lawsuit is rejected, as it does not hold any legal reason.” Thus, it is concluded there is dualism of law in the management of State Administrative Decision, but PTUN will inspect and adjudicate the lawsuit submitted.
This is due to the fact that the establishment of state administrative court can be seen as a tendency of the government to protect human rights of the state from the power of the government in the governance.
3 The effectiveness of UU PTUN is under the bless of Allah the Almighty and is supported by a core intention of Indonesia to realise the state of law that is based on the 1945 Constitution of the Republic of Indonesia and Pancasila.
In an effort to achieve fair and prosperous life as intended by Indonesia, the government has played an active role in societies.
In such a condition, the position of the citizens in the state is guaranteed lawfully.
However, in the implementation, all functions to guarantee the equality in law for the people should also be relevant to the perspective and characteristic of the state according to Pancasila to achieve uniformity, balance, and harmony between individual interests and common interests in a country development.4 There is a juridical problem to discuss regarding the above provisions.
II.
LEGAL RESEARCH AND METHOD This is a normative legal research, which is aimed to study regulations, legal concepts as well as legal principles behind the discovery of legal principles towards written and unwritten positive law, in which 4 Martiman Prodjohamidjojo, Hukum Acara Pengadilan Tata Usaha negara & UU PTUN 2004, (Bogor: Ghalia Indonesia, 2005), p. 1 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 252 | Wereh, Istislam Conflict in Management of Passive State Administrative Decision… the written positive law refers to legislation such as UUAP and UU PTUN.
This research is focused more on statute, conceptual, case, and comparative approaches, while the legal materials obtained were studied prescriptively to generate details regarding the essence of legal research that holds on to the characters of a legal study as an applied science.
III.
RESULTS AND DISCUSSIONS Law of the Republic of Indonesia No.
5 of 1986 on State Administrative Court, Law No.
9 of 2004 on Amendment of Law of the Republic of Indonesia No.
5 of 1986 on State Administrative Court.
The constitution of Indonesia states that Indonesia is a state of law 5 not based on merely power.
An indicator of a state of law is reflected from the existence of four domains of judicatures in Indonesia as mentioned in Article 10 of Law No.
14 of 1970 Jo.
Law No.
39 of 1999, which was then amended to Law No.
4 of 2004, the four of which are stated as follows: 1.
Domain of General Judicature with law No.
2 of 1986 (LN RI of 1986 No.
20) jo.
Law No.
8 of 2004 (LN RI of 2004 No.
34) jo.
Law No.
49 of 2009 (LN RI of 2009 No.
158).
2.
Domain of Religious Judicature with Law No.
7 of 1987 (LN RI of 1989 No.
49) jo.
Law No.
3 of 2006 (LN RI of 2006 No.
22) jo.
Law No.
50 of 2009 (LN RI of 2009 No.
159) 3.
Domain of Military Judicature with Law No.
31 of 1997 (LNN RI of 1997 No.
84) 5 The 1945 Constitution of The Republic of Indonesia, Article 1 Paragraph (3), UUD’45 dan Amandemennya, (Surakarta; Pustaka Mandiri, 2014), p. 11 6 Point a considering, Law Number 5 of 1986 on State Administrative Judicature, (Bandung: Fokusmedia, 2014), p. 93 4.
Domain of State Administrative Judicature with Law No.
5 of 1986 (LN RI of 1986 No.
77) jo.
Law No.
9 of 2004 (LN RI o 2004 No.
35) jo.
Law No.
51 of 2009 (LN RI of 2009 No.
160).
State Administrative Court (PTUN), the last judicature to form, was marked with the validation of the Law of State Administrative Judicature on December 29, 1986 in the preamble ‘considering’, in which it is mentioned that the intention of the formation of PTUN is to realise secure, safe, welfare, and obedient state governance that guarantees the status of its citizens in law and maintain harmonised and balanced relationship between state administrative apparatuses and societies.6 Actively performing its tasks, the government should not violate any rights and obligations of its citizens.
Moreover, the balance between state interests or state administrative interests 7 and individual interests should be maintained.
Protection is provided by PTUN which holds equal proportion as General, Religious, and Military Courts that are free from any influence or power, meaning that to prevent any criminal acts by any authorised bodies, PTUN serves as a law stabiliser to run its function as a law instrumentality8 in addition to its responsibility to maintain order and its function as a shelter of justice.
Law of PTUN started to function effectively on January 14, 1991 according to Government Regulation Number 7 of 1991, marked by inauguration of the three State Administrative High Courts (PTTUN) in Jakarta, Medan, and Ujung 7 A speech by Minister of Justice in State Administrative Judicature Symposium, printed on BPHN Publication (Bandung: Binacipta, 1977), p. 22-23 8 Sunaryati Hartono, Peranan Peradilan Dalam Rangka Pembinaan dan Pembaharuan Hukum Nasional, (Bandung: Binacipta, 1975), P. 8 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wereh, Istislam Conflict in Management of Passive State Administrative Decision… | 253 Pandang, and five State Administrative Courts (PTUN) in Jakarta, Medan, Palembang, Surabaya, and Ujung Pandang, followed by the establishment of PTUNs in all the capitals of provinces as level one courts.
To date, the existence of State Administrative Courts which are authorised to investigate, decide, and adjudicate any state administrative dispute between government (executives) and its people is perceived to have not been optimally performed in giving protection to the people and in providing healthy and law-abiding apparatuses who are aware of their tasks and function as public servants and protectors of the societies.
In Law No.
4 of 2004 on Amendment of Law No.
14 of 1970 jo.
Law No.
35 of 1999 on Principles of Judicial Power explicitly suggests in Article 11 that: “(1) judicial bodies as mentioned in Article 10 Paragraph (1), in organisation, administrative, and financial perspective are under the power of Supreme Court” (2) “Provision regarding organisation, administration, and finance is referred to as in each judicature domain”.
Based on the above provision, legislation that regulates judicial bodies in Indonesia including the domain of PTUN with regard to Law No.
5 of 1986 must be amended, as in organisation, administrative, and financial perspectives, as the judicial bodies are still under the Department of Justice, as regulated in Article 7 Paragraph (2) and Article 13 Paragraph (1) on General Monitoring and Fostering.
Juridically, the amendment of Law Number 5 of 1986 is a 9 Seorjono Soekamto, Penegakan Hukum, (Bandung: Bina Cipta, 1985), p. 15 command addressed to legislators to fulfil what is suggested in Law No.
35 of 1999, meaning that it is imperatively ordered by Law Number 35 of 1999, as normatively the existence of law No.
5 of 1986 is not in line with the provision of Article 11 of Law No.
35 of 1999 as the main law.
In line with the mechanism of law making, the government through the Department of Justice and Human Rights has proposed a bill in regard to amendment of law of PTUN, and it is now regulated in Law No.
9 of 2004 and is amended to Law No.
51 of 2009.
Philosophically, the amendment of Law No.
5 of 1986 is aimed to foster an independent court not influenced by external authorities and other parties.
This is in line with the provision of People’s Consultative Assembly No.
IV/MPR/1999 on State Policy Guidelines.
The existing law instrumentalities have overlooked philosophical values stemming from independent judicial power because the law is used to maintain power.
This perspective is relevant to Karl Mark’s notion (as cited by Soerjono Soekamto): 9 “Law is a tool used by those holding power to maintain their power”, including rules regulating judicial power which theoretically is a power delegated to the executor of judicial power called judges to perform their tasks and run their functions as justice providers for the people without any interference from other parties.
It means the decision is independently made by judges in court.” In law No.
9 of 2004 on Amendment of Law No.
5 of 1986 has completely abolished the interference from the government and supported the independence of judges that are Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 254 | Wereh, Istislam Conflict in Management of Passive State Administrative Decision… free from influence of other parties.10 Seen from the substance, Law No.
9 of 2004 on Amendment of law No.
5 of 1986, measure to impose sanctions regarding conducts done by government who fails to comply with the Decision of State Administrative court is obvious.
This is indicated by the fact regarding the execution of decision of PTUN, which is seen insufficient due to non-real execution.
These days, the execution is more concrete, and sanctions imposed on state administrative bodies or officials failing to comply with the decision or regulation are possible.
The sanctions can be given in the form of recognisance and administrative sanction11 and they have to be announced on local newspaper (Article 116 Paragraph (4)12 and (5)).13 The above explanation indicates that there are measures to improve and maintain the image and existence of PTUN, which has been apathetic in obtaining justice from State Administrative court.
Moreover, it is expected that the amendment of fundamental Articles in Law No.
9 of 2004 will represent the intention and objective of the PTUN: it is expected to foster law-abiding apparatuses for more optimal services and protection provided for societies.
Social political changes in post-reformation affects the measures taken by law instrumentalities that 10 Article 7 Paragraph (1) and (2) of Law Number 9 of 2004: Paragraph (1) Fostering judicature techniques, organisation, administration, and judicature financial by Supreme Court, Paragraph (2) fostering as meant in Paragraph (1) should not reduce the independence of judges in investigating and handling State Administrative disputes.
11 Istislam, Sanksi Paksaan Pemerintah dalam Perlindungan dan Pengelolaan Lingkungan Hidup, dissertation, 2012, p. 25-26 12 Article 116 Paragraph (4) of Law Number 9 of 2004: the defendant is not willing to act as what has been decided by the Court that holds permanent legal force.
Administrative sanctions or recognisance must be imposed on the officials concerned.
intend to transform law into supremacy of the law.
In terms of law No.
9 of 2004 on Amendment of Law No.
5 of 1986 on State Administrative Judicature, this is the implementation and reformation demand in law in which it aims to transform State Administrative Judicature Bodies into one of instruments to enforce law for government apparatuses.
In line with the objective of the establishment of the State Administrative Judicature, there have been some measures taken regarding the establishment in earlier years in the beginning of independence, 14 while the political will of new government started to exist in the mid 1980s, which was marked by the validation of Law No.
5 of 1986.
It is because the existence of the bodies of State Administrative Judicature affects the policies that have been or will be implemented by the government, recalling that the Decision of State Administration issued by the government becomes the object of dispute.15 Theoretically, as a state, the existence of Indonesia stems from its people’s will to unite (Le desire d’etre ensemble.
Sudarsono 16 further stated that there are at least 5 (five) requirements that characterise a state: 1.
Constitutional-based government 2.
Legality principles 13 Article 116 Paragraph (5) of Law Number 9 of 2004: Officials who do not act in accordance with what has been decided in court as mentioned in Paragraph (4), their names are to be announced publicly on local printed media by court clerks since the provision is fulfilled as mentioned in Paragraph (3).
14 See the formation history p. 55-76 15 Sudarsono, Pilihan Hukum Dalam Penyelesaian Sengketa Tata Usaha Negara di Peradilan Tata Usaha Negara, Professorship Inaugural Speech of State Administrative Law of Faculty of Law Universitas Brawijaya, (Malang: 2008), p.18 16 Ibid.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wereh, Istislam Conflict in Management of Passive State Administrative Decision… | 255 3.
Separation of power in government functions 4.
Independent judicial power 5.
Guarantee of protection of Human Rights Indonesia as a state of law with the above characteristics should hold the process of democracy, in which its people should be accommodated to be involved in decisionmaking, especially in occasions that determine their welfare.
Therefore, it is expected that the supremacy of the law formed in a democratic state of law can function as the law that serves its people.
Furthermore, it is essential to see to what extent the existence of Law No.
5 of 1986 and the amendment to Law No.
9 of 2004 is when related to political configuration referred to by Indonesia.
When the substance of Law No.
5 of 1986 and Law No.
9 of 2004, the author opines that since it is based on Indonesia as a democratic state which is not authoritarian, law No.
5 of 1986, especially the amendment to Law No.
9 of 2004, is responsive.
Specifically, the objective of the establishment of State Administrative Judicature with law no.
5 of 1986 as its law instrumentality, which was then amended to Law No.
9 of 2004, indicates that Indonesia is a democratic state of law.
In short, Law No.
5 of 1986 on State Administrative Court (PTUN) validated on December 29, 1986 (LN.
1 986/Number 77, TLN Number 3344), which is also recognised as State Administrative Judicature, is an indicator of the principle suggesting that Indonesia is a state of law as intended by the 1945 Constitution of the Republic of Indonesia.
17 H.Lutfi Effendi, Hukum Acara Peradilan Tata Usaha Negara, (Malang: Bayumedia Publishing, 2010) p. 4 The essence of PTUN is perceived by the people of Indonesia who demand security and justice among them regarding the growing interference of the government in almost all aspects of life, leading to more intensive use of regulatory and management instruments for societies, which sparks conflict of interests between the government and its people.
What matters in judicature is the imbalanced position between judicatures and justice seekers in which the government (which governs) becomes a defendant and, on the other hand, people (the governed) become the plaintiffs.
Neutraliser is required to fix the imbalance between the government and its people to settle disputes.
Thus, the role of judges in judicature is determining to settle disputes and seek objective righteousness.17 Negative passive system decision is a decision which should be produced by state administrative judicature but nonetheless such decision was never proclaimed.
The implementation of negative passive system by Law of State Administrative Court follows the consideration in which State Administrative Judicature is a new body in Indonesia.
To avoid any conflict, the former Minister of Justice, Ismail Saleh, S.H., suggested that limited authority should be provided, in which it should be restricted to only adjudicate all concrete, individual, and final decisions made by State Administrative officials (vide Law No.
5 of 1986).18 Law of the Republic of Indonesia No.
30 of 2014 on Government Administration The basis of principles in legislation involves philosophical principle, 18 Naskah akademik tahun 1981, prepared by Badan Pembinaan Hukum Nasional (BPHN) Department of Justice, under supervision of Chairman Chaerani AS Gani,S.H.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 256 | Wereh, Istislam Conflict in Management of Passive State Administrative Decision… sociological principle, and juridical principle, three of which should be clearly defined in the preamble and in general explanation.
The main description that serves as the basis of the making of Law No.
30 of 2014 is as follows: Philosophical aspect Philosophically, Law Number 30 of 2014 on Government Administration describes the principles of the system of the implementation of the government of the Republic of Indonesia which is based on the following: 1.
The principle of the sovereignty of people and the principle of the state of law (rechsstaat).
According to those two principles, all forms of decisions and/or acts of government administration should be based on the sovereignty of people and law which are the reflection of the Pancasila as an ideology of the state.
Thus, all decisions and/or acts are not according to the power attached to position of governments (machtsstaat).
2.
Decisions and/or acts made or done by government bodies and/or officials to the people should be in accordance with the provisions of legislation and general principles of good governance (rechtmatigheid van bestuur).19 3.
Monitoring of decisions and/or acts to see whether people are treated according to the law can be performed by state bodies and State Administrative Court.
4.
The Law of Government Administration guarantees basic rights and provides protection to societies and guarantees the execution of state’s tasks.
19 Evi Purnama Wati, ‘Sumber-Sumber Hukum Tata Negara Indonesia’, (2015) Jurnal Hukum Universitas Palembang 9 3, 11 5.
This Law enables people to propose appeal to higher court regarding the decisions and/or acts to government bodies and/or officials or the directors of the officials concerned.
Societies could also file a lawsuit regarding the decisions and/or acts done by government bodies and/or officials to State Administrative Court.
The principle serves as a guideline to state administrative dispute settlement through stages of administrative measures to judicature body.
As referred to the sociological principle, although Law Number 30 of 2014 on Government Administration uses the term “is able to propose some administrative measures”, this term should not be taken as a choice but it is an obligation.
6.
The scope of management of decisions and/or acts made and/or done by government bodies and/or officials or other state apparatuses comprises bodies other than executives, judicative, and legislatives that run the state, which is possible to be investigated at court.
Sociological Aspect Systematic description regarding the sociological aspect that serves as the background of the issuance of Law Number 30 of 2014 on Government Administration elaborates the principles in the system of the governance of the Republic of Indonesia in accordance with: 1.
Guaranteeing the people as subjects (not as objects) in a state of law.
2.
Guaranteeing the people regarding the fact that decisions and/or acts by Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wereh, Istislam Conflict in Management of Passive State Administrative Decision… | 257 government bodies and/or officials cannot be done to people arbitrarily.
Juridical aspect Systematic description regarding juridical aspect that serves as the background of the issuance of Law Number 30 of 2014 on Government Administration elaborates the principles in a system of governance of the Republic of Indonesia according to: 1.
Law Number 30 of 2014 on Government Administration transforms and provides norms in General Principles of Good Governance (AUPB) that has been put into practice.
These general principles develop in line with the dynamic of the societies living in a state of law.
2.
Law Number 30 of 2014 on Government Administration lays the groundwork for governance to bring it to good governance and as measure to prevent corruption, collusion, and nepotism practices.
3.
Law Number 30 of 2014 on Government Administration as a measure to develop main principles, way of thinking, behaviour, culture, and democratic, objective, and professional administrative actions to bring justice and legal certainty in.20 4.
Law Number 30 of 2014 on Government Administration completely re-regulate decisions and/or actions done by government bodies and/or officials according to the provisions of legislation and General Principles of Good Governance (AUPB).
5.
Law Number 30 of 2014 on Government Administration is not only restricted to providing legal protection for government apparatuses, but it is an 20 Despen Heryansyah, ‘Pergeseran Kompetensi Absolut PTUN dalam sistem Hukum Indonesia’ (2017) 8 1 Jurnal Hukum Novelty, 5 instrument to improve the quality of government services to public.
This law is expected to create good governance for all government bodies and/or officials both in central and regional areas.
According to Article 1 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia, Indonesia is a state of law, meaning that the governance system of Indonesia must be based on the sovereignty of the people and the principles of the state of law.
The logical consequence is that, in line with all those principles, all decisions and/or actions by government administration must be based on the sovereignty of the people and law that serve as a reflection of Pancasila as the state’s ideology.
Acts done by government administration not affected by authority attached to the state position are not unconditional.
The public should not be treated as objects arbitrarily.
A question is raised regarding what administrative measures are taken by government administration?
The decisions and/or acts to the public must comply with the provisions of legislation and General Principles of Good Governance (AUPB).
This certainly requires supervision on the decisions and /or acts to see whether the public is treated in accordance with the law and has to pay attention to the principles of legal protection which can effectively be performed by state bodies and State Administrative Court which is independent and unaffected.
The system and procedure required in the execution of government’s tasks and development must be regulated in law.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 258 | Wereh, Istislam Conflict in Management of Passive State Administrative Decision… In the perspective of construction of law, Law Number 30 of 2014 constitutes material law of the state administrative law.
This enables public to possibly file a lawsuit regarding the decisions and/or acts done by government bodies and/or officials to State Administrative Court, for this law is a material law that comes from the system of State Administrative Court.
Constitutionally, the existence of Law of Government Administration is a specific actualisation of constitutional norms between the state and its people.
From the perspective of state administrative law, the management of government administration in the Law is an essential instrument of a democratic state of law, in which the decisions and/or acts made and/or done by government bodies and/or officials or by other government apparatuses other than executives, judicative, and legislative that run the governmental functions are to be adjudicated in court.
The existence of Law Number 30 of 2014 is principally an implementation of ideal values of a state of law, meaning that the execution of state’s authority should be pro-public, recalling that this law exists to guarantee the people as subjects in a state of law as to prioritise the sovereignty of people.
Basic consideration of the issuance of Law Number 30 of 2014 involves the following three: 1.
To improve the quality of the governance, government bodies and/or officials must refer to the general principles of good governance and the provisions of legislation in order to use the authority.
21 Article 5 of Law of Government Administration: Government tasks are based on: a. legality principle, b. principle of protection of human rights, c. AUPB 2.
To settle dispute in the governance, the regulation regarding government administration is expected to serve as a solution in providing legal protection for both the public and government officials.
3.
To realise good governance, especially for the government officials, the law of government administration serves as the legal basis required to create a fundamental for the decisions and/or acts done by the government officials to fulfil what is needed by law that regulates the governance.
The legality principles 21 in the state administration binds administrative decisions from legislative power and becomes the subject of monitoring of judicative power,22 meaning that there is no such an administrative decision without any legal foundation from legislatives and without any legal monitoring from judicative.
This principle comprises two elements in which administrative decisions must comply with Law and must not be against the Law.
All administrative activities are principally authorised by Law.
The government has no authority to order or prohibit its people but with the authority given by the Law.
However, there still has to be discretion for the government to give public services.
The Law only contains general provisions that need elaborating in the lower Legislation.
Thus, the government is allowed to use the discretionary power under the law.
The discretionary power should not be separated from the main legal framework, or the power and the authority will be violated.
Another basic principle is related to the principle of supremacy, in which the 22 Academic Articles of Law Number 30 of 2014 on Government Administration, p. 13-14 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Wereh, Istislam Conflict in Management of Passive State Administrative Decision… | 259 government either as state administration executor or judicative power must comply with legislative power.
The government is not allowed to violate the regulation in Law although it does not cause any harm to its people.
Law is no restricted to as government’s framework, but the acts of the government are also reflected by the law.
The second element of legality principle is that all acts done by the government must be done in accordance with legal foundation, in the form of legal framework, presidential decree, or the decision of regional head or of government official.
This element demands the formal decisions made by the government that is lawfully binding.
The governments’ acts are classified into two categories: facts of the case and legal consequences.23 When the facts of the case are fulfilled, the legal consequences follow.
It clarifies that the acts done by the government are called administrative acts when they are related to the facts of the case, while they have something to do with legal consequences, they are categorised as acts of discretion.
The examination on the government’s acts by judicative bodies can only be performed toward control legality (Rechtmaessigkeit), not towards the conformity of objective (Zweckmaessigkeit).
The reasons of UUAP to follow the positive passive system are clearly seen in the objective of the formation of the Law: 1. to create order in Government Administration 2. to provide legal protection 3. to prevent the possibility of authority abuse 4. to guarantee accountability of government bodies and/or officials 23 Pan Mohammad Faiz, ‘Perlindungan terhadap Lingkungan dalam Perspektif Konstitusi’, (2016) 13 04 Jurnal Konstitusi 5. to provide legal protection for the people and government apparatuses 6. to execute the provisions of legislation and the implementation of AUPB 7. to provide the best services for public IV.
CONSLUSIONS AND SUGGESTIONS The differences between positivepassive system (stelsel) and negative-passive system regarding the management of state administrative decision exist due to the inaccuracy of formulation of law by the Legislatives.
This is shown by the existing conflict of norms between Article 53 paragraph 3 of Law Number 30 of 2014 on Government Administration and to Article 3 Paragraph (2) of Law Number 5 of 1986 on PTUN.
In Article 53 Paragraph (3), it is stated that when government bodies and/or officials do not make any decision and/or take any action within 10 days, the proposal is lawfully granted.
In other words, the public is only required to wait the decision of State Administrative Court (PTUN) to be accepted.
This condition is contradictory to Article 3 Paragraph (2) of Law Number 5 of 1986 on PTUN, implying that when State Administrative bodies or officials do not release any decisions proposed and it is past the deadline, it means that the state administrative bodies or officials reject to issue decisions.
It is advisable that Law Number 30 of 2014 on Government Administration serves as material law from the system of PTUN, not to interfere with the domain of PTUN which is under the Supreme Court that holds independent judicial power to enforce law and justice.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 260 | Wereh, Istislam Conflict in Management of Passive State Administrative Decision… REFERENCES Books Djoko Prakoso, Peradilan Tata Usaha Negara, (Yogyakarta: Liberty, 1988) H.Lutfi Effendi, Hukum Acara Peradilan Tata Usaha Negara, (Malang: Bayumedia Publishing, 2010) Martiman Prodjohamidjojo, Hukum Acara Pengadilan Tata Usaha Negara & UU PTUN 2004, (Bogor : Ghalia Indonesia, 2005) Sunaryati Hartono, Peranan Peradilan Dalam Rangka Pembinaan dan Pembaharuan Hukum Nasional, (Bandung: Binacipta, 1975) Seorjono Soekamto, Penegakan Hukum, (Bandung: Bina Cipta,1985) Pidato Pengarahan Menteri Kehakiman pada Simposium Peradilan Tata Usaha Negara dimuat dalam terbitan BPHN (Bandung: Binacipta, 1977) Journal Articles Ackerman, B.A and Steward, R.B., Reforming Environmental Law: The Democratic Case for Market Incentive, Colombia Jurnal of Environmental Law (1998) 13 Heryansyah, Despen ‘Pergeseran Kompetensi Absolut PTUN dalam sistem Hukum Indonesia’ (2017) 8 1 Jurnal Hukum Novelty, 5 Tamrin, Abu ‘Perubahan Konstitusi dan Reformasi Ketatanegaraan Indonesia’ (2015) Jurnal Cita Hukum 3 1 Tutik, Titik Triwulan ‘Analisis Hukum Tata Negara’, (2015) Jurnal Hukum dan Pembangunan 41 1, 20 Wu Jin, song, Analyses on The Function of Administrative Law Enforcement Intepretation in China, Canadian Social Science (2010) 6 2.
Faiz, Pan Mohammad, ‘Perlindungan terhadap Lingkungan dalam Perspektif Konstitusi’, (2016) 13 04 Jurnal Konstitusi Thesis Istislam, Sanksi Paksaan Pemerintah Dalam Perlindungan Dan Pengelolaan Lingkungan Hidup, Disertasi, 2012 Acts Undang-undang Dasar Republik Indonesia Tahun 1945 Pasal 1 ayat (3), UUD’45 DAN AMANDEMENNYA, (Surakarta; Pustaka Mandiri, 2014) Undang-Undang No.
5 Tahun 1986 tentang Peradilan Tata Usaha Negara
104 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.08 Arbitration and Other Alternative Dispute Resolution for Commercial Dispute (Reviewed from the Strengths of ADR and Decision of Arbitration) Suhermana aFaculty of Law UPN Veteran Jakarta Email : suherman_upn@gmail.com Submitted : 2018-11-05 | Accepted : 2019-04-04 Abstract: Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions.
This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes.
It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award.
This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute.
The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions.
This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes.
However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.
Keywords: alternative dispute resolution; arbitration; enforcement of a judgement.
I.
INTRODUCTION Arbitration is one part of alternative dispute resolution (ADR), aside from negotiation, mediation, conciliation and litigation.
The important thing about ADR in commercial dispute resolution is the efficiency and effectiveness of the ADR decision.
This ADR decision is very important in executing, because if in a case that has been decided it should be easy to be executed.
Therefore, it needs to be examined and examined properly whether a decision from ADR has been efficient and effective in implementing the decision.
Do not let the verdict from the ADR not be implemented properly even though it has used a long time mailto:suherman_upn@gmail.com Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... | 105 in the process and has incurred large costs, but cannot be executed.
To be able to know the eficiency and effectiveness of an ADR decision in the execution of especially the arbitration award, it is necessary to know the weaknesses and strengths of each ADR and the legal strength of the ADR decision especially for international arbitration in Indonesia.
Arbitration and alternative dispute resolution laws regulate foreign arbitral award, namely a decision handed down by an arbitration institution or individual arbitrator outside the jurisdiction of the Republic of Indonesia, or put forward by an arbitration institution or individual arbitrator which is considered an arbitration award international.1 In the New York Convention 1958 Article 1 paragraph 1 envisages the foreign arbitral award is "This Convention shall be made in the territory of a State other than the State where the award is sought , and arising out of differences between persons, whether physical or legal.
"It should also apply to the awards not considered as domestic awards in the State where their recognition and enforcement are sought.
"2 Based on the above definition, the existence of an foreign arbitral award is based on the principle of the region and what law is used in examining and deciding in resolving the dispute.
The 1958 New York Convention Regarding the Recognition and Implementation of International Arbitration has been ratified by Indonesia with Presidential Decree Number 34 of 1981.
With the issuance of Presidential Decree 34 of 1981 Indonesia is bound by a legal obligation, to recognize and carry out any 1 Act Number 30 Year 1999 on Arbitration and Alternative Dispute Resolution Article 1 ( 9).
International Arbitration award requested for recognition and implementation in Indonesia with the principle of reprosity or reciprocity.
Then as a follow up to Presidential Decree 34 of 1981 the Supreme Court of the Republic of Indonesia issued Regulation No.
1 of 1990 concerning Procedures for the Implementation of Foreign Arbirase Decisions.
The method used in this study is the Normative Juridical method so that the data is secondary data.
The research materials in the form of primary materials are the main legislation.
Law Number 30 of 1999 concerning Arbitration and Alternative Settlement Resolutions and other relevant rules such as the 1958 New York Convention Concerning the Recognition and Implementation of International Arbitration Awards and secondary materials in the form of books and the results of research and materials in the form of writing contained on the internet.
Likewise tertiary material in the form of a dictionary and encyclopedia.
All of the materials studied were then analyzed and then written with descriptive analysis method and then conclusions and recommendations were drawn as answers to the problem.
According to as mention above, Thus, the purpose of this paper is compare arbitration and other ADR to examining the strengths and weaknesses of arbitration and other ADR and How to Improve Efficiency and Effectivines of foreign arbitral award in Indonesia in relation to commercial dispute II.
LEGAL MATERIALS AND METHODS Legal materials, which were collected by conducting a literature review and interview technique and then processed 2 1958 New York Convention article 1 paragraph 1 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 106 | Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions.
Legal materials used in this research include, Presidential Decree 34 of 1981 on the Ratification of The 1958 New York Convention Regarding the Recognition and Implementation of International Arbitration, Supreme Court Regulation No.
1 of 1990 concerning Procedures for the Implementation of Foreign Arbirase Decisions III.
RESULT AND DISCUSSION At present, many countries in the world use ADR in resolving their business disputes, for example: in the United States have led to the use of non-formal justice for legal dispute resolution or ADR.
ADR is the use of various methods for resolving an alternative to litigation.
Thus, ADR as dispute resolution involves a structured process with third party decisions which are imposed on the parties.
ADR is very much in design such as negotiation, mediation, conciliation, and arbitration.
Before answering the questions above, in this study we will explain in advance the meaning of each ADR.
Negotiation: The most familiar resolution method dispute, which has been used for a long period of time, is negotiation.
Negotiation is a process of joint decision making in which the disputants discuss their contradictory interests.
In this way, they are searching for a mutual agreement which most likely can satisfy their interests.
Negotiation must be the first among equal dispute 3 Robert Maddux, Successful Negotiation, (London sweet and maxwell, 1988) 14.
4 A. Taylor, Toward a Comprehensive Theory of Mediation, (A Mediator’s Handbook, 1993) 2. resolutions processes, standing firm as its own right, as well as being into traditional frames.
Negotiations on individuals who communicate with one another are in order to arrange their affairs in commerce and everyday life, establishing areas of agreement and reconciling areas of disagreements.
Negotiation has also been defined as "the process we use to satisfy our needs when someone else contrls what we want".3 Mediation : According to Reikert, mediation4 is" a process by which the disputants, assisted by a mutually acceptable neutral person (or persons), systematically isolate dispute adoption, consider alternatives, andreach a consensual agreement that will accommodate their needs".
By this definition, there are three parties together in the mediation process.
Two of them are the disputants and the other is a neutral person.
The neutral person (or persons) acts as a facilitator to assist the parties to find a mutual settlement which will satisfy the disputants" interests.
The neutral person, however, will not act as a judge to impose a decision upon the parties..5 Conciliation : According to Lord Wilberforce, he defines conciliation in the aspect of commercial dispute resolution as : “ …… the process which the parties to a dispute are helped by a neutral and independent third party, who may be either and official provided by the state or a pri vate person, to reach a mutually acceptable settlement."
6 The conciliation process, like mediation, parties will be assisted by the neutral and independent third party to bring them together and define a solution in order to achieve the satisfactory agreement.
The 5 Laurance Boulle, Mediation Principles Process Practice (Sydney Butterworths, 1996) 1.
6 Murray, Rau and Sherman, Processes of Dispute Resolution (Foundation Press, 1989) 69.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... | 107 third person role is trying to conciliate the parties rather than resort to litigation.
However, the process of conciliating the parties can be done whether they have already used litigation or not.
"7 Arbitration: At the current time, the dispute resolution which receives the most confidence in solving a variety of conflicts, especially in commercial matters, should be arbitration.
This is because arbitration has derived many characteristic of the court system which, in reality, people still rely upon.
Arbitration is a method of dispute resolution involving one more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.8 Arbitration in English law may be defined as aprivate mechanism for the resolution of disputes which takes place in private pursuant to an agreement between two or more parties, under which parties agree to be bound by the decision to be given by the arbitrator according to law after a fair hearing, such decision being enforceable at law.9 The Strengths and Weaknesses of arbitration and other ADR.
For all types of ADR, each of them, sometime, can work independently without any further assistance from from other types.
Nevertheless, in case of the best result, some of them might need some other types to facilitate the proceeding.
This is because each type of ADR has strengths and weakness.
a.
Arbitration 7 Ibid.
8 Henry Campbell Black, Black’s Law Dictionary (The law Exchange, Ltd, 1991).
9 PMB.
Rowland, Arbitration Law and Practice (Butterworths, 2nd ed 1990) The less formal procedures of arbitration seem to be a clear advantage.
The most important thing is the proceedings may be arranged by the parties.
Consequently, the parties can design the procedures better suited to their needs, especially to the specific features of the disputes in their commercial contract.10 Further advantages of arbitrators are place, language, and applicable law.
The parties can agree to manage those issues to suit' their best interests.
The disputants can choose arbitrators who have experience and knowledge of commercial contracts.
They may choose the venue where they may feel comfortable.
The language which will be used in the arbitral procedures is also chosen by the parties.
And finally, "the parties can choose the law applicable to the commercial contract, and that choice will almost always be respected by the arbitrators".11 In some case, the arbitral award may need to work along with judicial proceedings.
"Since, under many legal systems, an enforcement of arbitral award may be done only on a specific number of dispute, for example that the arbitrators lacked authority to decide the dispute, that a party could not present his case in the arbitral proceedings, that the rules applicable to the appointment of arbitrators or to the arbitral procedure were not complied with, or that the award was contrary to public policy.
"12 Nevertheless, at this time, the arbitral award are widely accepted and enforced more easily than foreign judicial decisions.
This is a result of international conventions that assist in the recognition and enforcement 10 Priyatna Abdurrasyid, Arbitrase dan Alternatif Penyelesaian Sengketa (Fikahati aneska, 2nd Ed, 2011).
11 Rubino Sammartano, International Arbitration Law, (Kluwer Law and Taxation Publishers, 1990) 273.
12 Ibid.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 108 | Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... of foreign arbitral awards.
Moreover, it must be noted that only in extremely rare case which the arbitral award need to be set aside from the courts to enforce an award.
"This is the advantage of arbitration and the best.
possible testimony in favor of this procedure.
According to the statistics of the International Chamber of Commerce, 87 percent of the awards rendered by the court of Arbitration are freely executed by the losing party.
"13 The strengths of arbitration is to achieve fair and appropriate resolutions of disputes with efficiency and economy.
Some of the most important characteristics of arbitration are :14 1).
The decision maker is selected by the parties 2).
The proceedings and award are private 3).
The process is less formal then litigation 4).
Legal rules of procedure and evidance do not apply, and 5).
The process can beunderstood without formal legal training.
The arbitration hearing is more cheaper than a courtroom trial, because there are several reasons : First, Evidance in arbitration can be introduced more quickly and with less dispute.
In arbitration, fower motions are filed challenging the admissibility of evidance because court rules of evidence do not apply.
Second, Courtroom trials are often conducted only in the morning so that judge can deal with motions in the afternoon.
Trials conducted this way last longer but usually are no cheaper than trials conducted this way last longer but usuaally are no cheaper than trials conducted on a full day basis.
Third, judges 13 Quentin Loh Sze On Sc and Edwin Lee Peng Khoon, Confidentiality in Arbitration : How far Does it extand, (Academy Publishing, 2007) 63.
14 American Arbitration Association, Handbook on Arbitration Practice, (JurisNet,LLC, 2010) 15. are frequently interrupted by emergency matters that will take precedence over a trial.
This problem normally has no counterpart in arbitration.
Finally, in comparing bench trials to arbitration, the judge’s decision may be delayed by the time it takes for the judge to be furnished with a written transcript.15 b.
Negotiation The parties usually use negotiation when the dispute has just arisen.
They tend to negotiate about their contrast interests and attempt to settle their conflict through the proceeding, The negotiation processes can be managed very simply by the parties' own effort and, generally, without any necessary assistance from the third person.
As a result, even though the disputants agree to , use other methods because they could not settle their dispute by means of negotiation, they can resume to negotiate at any time they wish.16 In the proceeding itself, negotiation can help the parties to save times and costs in which may be required by another ADR methods.
Moreover, a mutual agreement which is reached through negotiation may maintain and avoid any damages over a business relationship between the parties.
However, a serious weakness of negotiation is in enforcement.
Due to the proceeding has been done by the parties' effort, there may be no specific regulations or an organization to enforce the settlement.
The parties may ignore an agreement even though they have it written down.
Moreover, the parties can walk out from the process at any stage when they do not want to negotiate.
15 Ibid, 7.
16 Chen, Understanding Chinese Negotiation, (Australian Dispute Journal, 1993) Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... | 109 Thus, the disputants have to initiate other ADR methods which will facilitate them to resolve the conflict more effectively.
As a result, two more further consequences will arise.
Firstly, duration time of the conflict resolving will be extended.
And secondly, the cost of problem solving will be increased.17 Hence, negotiation can help the parties to resolve their disputes by mean of simple and easy processes and, probably, without damaging the parties' relationship.
But, the enforcement is an important powerlessness characteristic which impacts negotiation not to be a final resort for resolving the disputes.
c. Mediation Mediation is a decision making process in which the parties are assisted by a third party, the mediator.
As mediator attempts to improve the process of decision making and to assist the parties reach an outcome to which each of them can assent.18 Because the parties attempt to find a solution through the assistance of the third party, this would be a benefit for them.
Because in a conflict situation, more often the parties are angry.
They may not be able to communicate effectively and it makes the dispute situation getting down.
As a result, they may look over the real interests which they really need and tend to battle the other opponent to be a winner rather than compromise.
With this situation, the mediator will help them to define what their interests are.
He may try to convince the parties to look at the pro's and con's if they cannot agree on the settlement, such as greater costs if their conflict goes further.
The mediation is a highly flexible dispute resolution process.
It can be 17 Ibid.
18 Laurance Boulle, above n 7.
19 Ibid, 35. conducted in a variety of physical settings, the procedure can be negotiated and adapted, additional participants can be involved for part of the mediation.
The informality of mediation is closely linked to its flexibility.Here informality refers to the setting, style and tone of the mediation and the interpersonal behaviour and conduct of the participants.
The informality and flexibility of mediation allows for extensive and direct participation in the process.
Mediation is a highly accessible system of dispute resolution.19 However, uncertain enforcement of mediation settlement seems to be an important weakness.
This is because mediation is appointed by an agreement of the parties.
Like other kinds of ADR, one party may ignore to perform the settlement and the other party must use another method which has the power for enforcing an agreement.
d. Conciliation Conciliation is an alternative choice for parties who do not accept to submit to jurisdiction, whether it is the jurisdiction of another state or of an arbitrage tribunal.
It is a non competitive method but litigation is not.
Additionally, the business relationship between the disputants are more likely to be preserved.
Moreover, conciliation may even develop the relationship between the parties, "since the scope of conciliation and the ultimate agreement of the parties may go beyond the strict confines of the dispute that gave rise to conciliation.
"20 An obvious disadvantage of conciliation is not too much different from negotiation or mediation.
That is, if the parties fail to conciliate, the money and time 20 Fulton, Maxwell J : Commercial Alternative Dispute Resolution, (The Law Book Company Limited, Sydney, 1989) 27.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 110 | Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... spent on it might have been wasted.
"However, the parties can receive benefits from conciliation at the same level of confidentiality as arbitration.
"21 There are some factors used to determine the strengths and weaknesses of arbitration and other alternative dispute resolution.
Those factors can be classified as follows: Cost, Times of procedures, Flexibility, including informal proceedings and participation, Principles or organizations to support the procedures.
1) Cost The budget of dispute resolution has become a forbidding factor for the parties.
People wish to have the procedures or methods which can help them save money as much as possible.
For this reason, it is quite obvious that litigation can cost a large amount of money.
There is an estimation that in one year time, more than $80 million has been used for intercorperate litigation.
That money has been spent to hire lawyers and for other relevant proceedings, both in the court and outside.
Moreover, the longer the time of the procedure also costs much more cost.
This is absolutely a problem for all the parties.
Meanwhile, negotiation, mediation, conciliation and arbitration seem to be the methods which can reduce the cost.
Furthermore, the disputants also can control the expenditure in the processes as well.
This is because they can manage the resolution by themselves and do not need to follow fixed principles.
The disputants can do it without the assistant from an outside person for negotiation or may need some help from a, third party, for, mediation, conciliation, or arbitration.
However, the number of outside 21 Ibid.
22 Sarah Rudolph Cole, managerial Litigation?
The Overlooked Problem of Party Autonomy in Dispute Resolutio, (Hastings L.J, 2000) 75. people can be limited to a small number or may be only one person in each method.
Additionally, the parties can specify the duration of time in a range that they wish.
Hence, the alternative dispute resolution outside the court seems to be the appropriate way.22 2) Duration of time.
The time can be controlled by the parties in every method ADR, but cannot be available in litigation.
For arbitration, speed is a significant advantage.
The person(s) who acts as the arbitrator usually is an expert.
Consequently, the expert would know the feature of the conflict and can decide on a straight question of fact.
As a result, the conflict can be resolved very quickly.
For negotiation and mediation, time can be short or long.
It depends on the participation of the parties.
This is because there is no rule, to frame a performance of the disputants.
If they can reach a settlement without any, obstacle, the process will be a short.
In contrast, if the parties do not cooperate appropriately, such as walk out from the process, negotiation or mediation will be delayed and can be terminated finally.
As a result, the parties have to use further methods to resolve the dispute.
As alternative dispute resolution is a conciliation, time can be short or long depending on the parties.
Because of the non binding nature of conciliation, the parities may ignore to perform the conciliation agreement.
Therefore, the court process has to be resumed to impose a decision to enforce the conciliation agreement which results in further time.23 23 Ibid, 78 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... | 111 3) Flexibility of procedure.
The parties are avoid the court system because of non flexible procedures.
As mentioned previously, the parties cannot abandon one stage to perform the next stage of the court rules.
They have to follow each of the rules in order.
In other words, the court system is more formal and lacks flexibility.
Furthermore, the fact that the court has a large number of case loads dictates that each of them must be decided in order as well.
The parties cannot work on their dispute at anytime they wish.
This also results in delaying of time which impose further impact for businesses of the parties either.
In contrast Its mediation, negotiation, conciliation, and arbitration, flexibility is the most significant of the procedures, especially the last one.
Arbitration processing has been done privately between the parties and arbitrators.
The arbitrators are appointed specifically for that dispute.
The parties can choose to have a arbitral process in the form of running by one organization or private procedure as ad hoc arbitration.
The parties may design the processes and the power of arbitrator, as well as choosing the law which will be applied.
Hence, varying of flexibility can be available more in arbitration.24 4) Principles or organization to support the procedures There are some organizations and principles to support the procedures.
Arbitration has a number of organizations, such as the International Chamber of Commerce (ICC), or the American Arbitration Association (AAA), to support its work.
Moreover, the United Nation Commission on International Trade Law (UNCITRAL) has played an outstanding role 24 J. Murray, A Rau and E Sherman, Process of Dispute Resolution ; The Role of Lawyers, (Foundation Press, 1989).
in administrating the international commercial arbitration work as well.
Those institutions have received ratification and worldwide acceptance from many states, particularly the super power countries such as USA.
ADR success in United States, According to the statistics provided by the Department of justice in 2017, over $15 million was saved from litigation , 14000 days of attoeney and staff time saved, and almost 2000 months of litigation avoided.
So, That is clear, ADR is more efficient and cost effective means to resolving disputes, thereby highlighting its significance.25 In Indonesia organizations that support the procedure with arbitration are the Indonesian National Arbitration Board (BANI), which is an independent institution that provides services to resolve disputes through arbitration.
BANI was formed by the Indonesian Chamber of Commerce and Industry (KADIN) in 1977, with the aim of participating in law enforcement efforts in Indonesia to organize dispute resolution that occurred in various trade sectors.
Improving Efficiency and Effectivines of Foreign Arbitral Award in Indonesia in Relation to Commercial Dispute The most important thing at the end of a dispute is the implementation of a decision on the dispute, meaning that the decision can be carried out properly by the parties or through court assistance to carry out the execution.
There are several factors that will influence to increase efficiency and effectiveness of foreign arbitration decisions in Indonesia, namely : a.
Foreign arbitration decisions are based on final and binding 25 Malikul S. Muhamad, Alternative Dispute Resolution in India and the United states, (Cornell University, J .Purushotham & Associates, 2010).
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 112 | Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute...
In the 1958 New York Convention it was said that “each contracting state shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the awards is relied upon, under the conditions laid down in the following articles.
There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.” Based on this article, it means that each member country of the Convention must recognize an foreign arbitral award as a binding decision and has an execution against the parties.
Meanwhile, in the arbitration law and alternative dispute resolution in Indonesia, the final and binding strength of an foreign arbitral award is illustrated in Article 68 paragraph 1 of the International Arbitration Law, namely: "Regarding the decision of the Chairperson of the Central Jakarta District Court as referred to in Article 66 letter d acknowledging and implementing an International Arbitration Award, cannot be appealed or appealed.
"It is stated in this article that international arbitration that is recognized and implemented in Indonesia cannot be appealed or appealed, this is in accordance with the final and binding principle possessed by an international arbitration award.26 b.
Foreign arbitration decisions are based on reciprocity 26 Arfiana Novera, Mera Utama, Fundamentals of Contract and Arbitration Law (Malang: Tunggal Mandiri, 2014) 112.
The principle of reciprocity is the recognition of the execution of foreign arbitral awards.
This principle is reflected in Article 66 letter a of the Arbitration Law and Alternative Dispute Resolution which states: "foreign arbitral awards are imposed by arbitrators or arbitral tribunals in a country which with the Indonesian state are bound to an agreement, both bilaterally and multilaterally, regarding the recognition and implementation of Arbitration Awards International."
In the New Yok Convention in 1958 it was also stated that "any state may be on the basis of a reciprocity declare."
This principle must be considered by the court when it wants to give the executor's request.
In Article 3 PERMA No.
1 of 1990 also states that arbitration decisions that are recognized and which can be executed in the jurisdiction of the Republic of Indonesia, are only decisions that fulfill the principle of reciprocity.
Article 3 of the New York Convention requires participating countries to recognize arbitral awards made abroad to have legal force and implement them in accordance with national law in which the decision will be implemented.
However, the recognition and legal obligations cannot be separated from the principle of reciprocity or reciprocity between countries concerned with the participating countries of the convention.
The willingness of the state to acknowledge and execute international arbitration awards must apply reciprocally with the recognition and willingness of other countries, to execute international arbitration awards.
Recognition and implementation of foreign arbitral award s must be based on bilateral or multilateral relations of the countries concerned in terms Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... | 113 of recognition and implementation of foreign arbitral awards.
c. Ensure the efficiency of the execution of processes The process for the execution of international arbitration awards is in the court, so that the court is not authorized to question the material that is being dropped.
The main duty of the court in carrying out its executor's function is only to examine whether the international arbitration award violates formal principles or rules that are serious and fundamental, namely that they must not violate public order.27 d. Ensure Accountability of Court.
Many people think that court decisions are unfair and not accountable because of the many court decisions that can be bought and sold.
Moreover, the number of judges affected by corruption cases is related to buying and selling decisions.
So that there needs to be an accountable court that all judges and other members under the court are free from corruption.
e. Changing Mindset of the Court.
Changing the mindset of all parties in the court in carrying out foreign arbitration decisions in Indonesia, because the legal force of foreign arbitral awards in Indonesia has been regulated in law, the government still must endeavor that the arbitral award made abroad must be respected and carried out.
Awards and commitments to foreign arbitral awards in Indonesia are still very minimal, so it takes a lot of the role of the court as a controlling tool so that foreign arbitral awards can truly be carried out domestically.
27 Susilawetty, Arbitration and Alternative Dispute Resolution are reviewed in the Legislative IV.
CONCLUSIONS AND SUGGESTIONS Alternative dispute resolution is settlement disputes outside of the courtroom.
ADR includes early neutral evaluation, negotiation, conciliation, mediation, and arbitration.
Each type of ADR has strengths and weaknesses which can be seen from the cost, duration of flexibility, procedure, principles or organization to support procedures and the implementation of decisions of each type of ADR.
When viewed from the above criteria, arbitration has the power of a decision to be requested for execution through a court.
The difficulty in applying foreign arbitration award in Indonesia can be done through the principle of final and appeal, principle of reciprocity, Ensure Efficiency of the execution processes, Ensure Accountability of Court and Changing Mindset of the Court.
REFERENCES Books Abdurrasyid, Priyatna, Arbitrase dan Alternatif Penyelesaian Sengketa (Fikahati aneska, 2nd Ed, 2011).
American Arbitration Association, Handbook on Arbitration Practice, (JurisNet, LLC, 2010) American Arbitration Association, HandBook on International Arbitration and ADR (JurisNett,LLC, 2nd edition, 2010) A. Taylor, Toward a Comprehensive Theory of Mediation, (A Mediator’s Handbook, 1993) Perspective, (Jakarta: Gramata Publishing, 2013) 46.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 114 | Suherman Arbitration and Other Alternative Dispute Resolution for Commercial Dispute... Black, Henry Campbell, Black’s Law Dictionary, (The law Exchange, Ltd, 1991).
Boulle, Laurance, Mediation Principles Process Practice, (Sydney Butterworths, 1996).
Chen, Understanding Chinese Negotiation, (Australian Dispute Journal, 1993) J Fulton, MaxwellCommercial Alternative Dispute Resolution, (The Law Book Company Limited, Sydney, 1989) J. Murray, A Rau and E Sherman, Process of Dispute Resolution ; The Role of Lawyers, (Foundation Press, 1989) Loh Sze On Sc, Quentin and Lee Peng Khoon, Edwin, Confidentiality in Arbitration : How far Does it extand, (Academy Publishing, 2007) Maddux, Robert, Successful Negotiation, (London sweet and maxwell, 1988).
PMB.
Rowland, Arbitration Law and Practice, (Butterworths, 2nd ed, 1990) Cole, Sarah Rudolph managerial Litigation?
The Overlooked Problem of Party Autonomy in Dispute Resolutio, (Hastings L.J, 2000) Sammartano, Rubino, International Arbitration Law, (Kluwer Law and Taxation Publishers, 1990) Sherman, Rau and Murray, Processes of Dispute Resolution, (Foundation Press, 1989) Journals Articles Shavel, Steven, ‘Alternative Dispute Resolution : An Economic Analysis’, (1995) 24 (1, January) The Journal of Legal Studies <www.journal.chicago.edu.> Legislations The 1958 New York Convention Regarding the Recognition and Implementation of International Arbitration Supreme Court Regulation No.
1 of 1990 concerning Procedures for the Implementation of Foreign Arbirase Decisions Presidential Decree 34 of 1981
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.01 | 159 Model of Prevention of Social Conflict which Multi Dimensions Based on Local Wisdom of Community Adat Dalihan Na Tolu Anwar Sadat Harahap1, Ahmad Laut Hasibuan2 1Universitas Muslim Nusantara (UMN) Al Washliyah Medan Email: anwarsadathrp@umnaw.ac.id 2Universitas Muslim Nusantara (UMN) Al Washliyah Medan Email: ahmadlauthsb@yahoo.co.id Submitted : 2017-10-10 | Accepted : 2018-10-17 Abstract: The main purpose of this research is to find a model of punishment in preventing social conflict on local wisdom of Dalihan na Tolu indigenous people.
The questions posed in this research include the multi-dimension social conflict prevention model based on local wisdom of Indonesia, the deliberation stage of preventing such conflict and strategies adopted by local wisdom to resolve social conflict.
The research further focuses its examination on local society that is Dalihan na Tolu indigenous people.
This research uses empirical juridical research method, which is departed from local wisdom norms, or known as adat laws and examines the application of such laws in society.
This research proposes that the multi-dimensional model of social conflict prevention should be carried out using the rules contained in: Dalihan na Tolu custom, Sipaingot, Pastak ni Paradaton, Uhum dohot Patik, Hapantunon, Tutur dohot Poda, Marga, Martahi, Mangupa.
While the system and strategies of negotiation to reach consencus in preventing multidimensional social conflict based on the following norms: Tahi Ungut-ungut, Tahi Dalihan na Tolu, Tahi Godang Parsahutaon and Tahi Godang Haruaya Mardomu Bulung.
It is argued that the punishment model usually used by Batak community should be adopted both in preventing as well as resolving social conflict exists in society.
Keywords: prevention, social conflict, multi dimensions, community of adat dalihan na tolu I.
INTRODUCTION It cannot be denied that in Indonesia there have been various social conflicts involving community groups with one another, such as civil war in Poso (1998 2001), Ambon (1999 2002), North Maluku (2000), Sampit conflict (2001), Idul Fitri Idul Fitri riot on November 2, 2006 in Air Bara village between indigenous people of Bangka and Air Sampik residents (majority of Javanese tribe) causing several houses of Air Sampik people burned, riot in Lampung Selatan Mesuji (2012) and others, riots broke out in the area of North Jakarta, precisely around mailto:anwarsadathrp@umnaw.ac.id Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 160 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... Luar Batang, Penjaringan, Friday (4/11/2016) and others.
The majority of these problems arise, because they stem from other than less assertive, fair and beneficial legal regulatory materials on preventing social conflict that has been felt by the community so far, as well as indigenous peoples and their local wisdom has not been involved in the prevention of formal social conflict in the community.
It is undeniable that the lives of indigenous peoples in Indonesia, such as the indigenous Batak community in North Sumatra, the Malay indigenous people in Riau, the Minangkabau indigenous people in West Sumatra, the indigenous Javanese in Yogyakarta and other indigenous peoples often face trials and challenges, such as bomb explosions in places of worship, inheritance conflicts, marriage conflicts, electoral conflicts, inter-youth disputes between different religions and tribes and other conflicts.
Most of these conflicts, can be overcome and prevented by indigenous peoples through customary law contained in their respective local wisdom, so as not to cause prolonged conflict in the midst of society.
In the concept of local wisdom, it has been arranged in: 1) system and procedures for preventing and resolving social conflict, 2) mediation implementation process in the prevention of social conflict, 3) strategy by customary leaders in the prevention of social conflict, 4) solving social conflicts, and 6) the types of sanctions imposed on perpetrators who triggered social conflicts.
The above mentioned rules have been taught to all members of the indigenous community since childhood, so that the 1 Adawiyah Nasution, ‘Penyelesaian Sengketa Pemilihan Kepala Daerah Berbasis Dalihan na Tolu’, (2015) 1 (3) Jurnal Kalam Keadilan 96-99.
2 Ilyas, ‘Kajian Penyelesaian Konflik antar Desa Berbasis Kearifan Lokal di Kabupaten Sigi, material is understood, respected and practiced in everyday life because it is in accordance with the legal ideals (rechtsidee) and legal feeling (rechtsgevool) of indigenous peoples.
In addition, the existence of indigenous leaders in an indigenous community is still highly respected and respected, so that the order is executed and the prohibition is abandoned.
Prevention of social conflict wisely and wisely is not the finished goods that come for granted, but it is a social project that must be fostered and directed, so as to create social harmony, the nature of tolerance and the existence of mutual understanding and respect between communities with one another.1 Indonesia is one of many coutries that characterized with its cultural diversity.
Each culture has its own wisdom in addressing life issues encountered, including wisdom in resolving conflicts.2 Tradition and local wisdom that still exist and apply in the community, has the potential to encourage the desire to live harmonious and peaceful.
That's because the wisdom of local tradition basically teaches peace with each other, the environment, and God.3 According to Wasisto Raharjo Jati that there are five vital roles of local wisdom as media of religious conflict resolution, namely: 1) Local wisdom as a marker identity of a community.
2) Local wisdom itself provides a cohesive aspect of interreli-gious, cross-citizen, and belief elements.
3) Local wisdom as part of alternative conflict resolution is more to invite all parties to negotiate by taking advantage of emotional and cultural closeness.
4) Local wisdom serves to encourage the building of togetherness.
5) Sulawesi Tengah’, (2014) 6 (1) Jurnal Academica 1221.
3 Agus Sriyanto, ‘Penyelesaian Konflik Berbasis Budaya Lokal’, (2007) 5 (2) Jurnal Ibda 286-301.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... | 161 Local wisdom will change the mindset and mutual relationships of individuals and groups, by putting on top of the culture they possess.4 The potential of such a large nation must be managed properly and justly, because if it is allowed to go the way it is and according to individual taste, it is not impossible to cause prolonged conflict in the midst of society that can result in the emergence of acts of amok, clash and brawl can claim casualties.
Based on the background presented above, it can be taken some formulation of the following research problems: 1.
How is the multidimensional social conflict prevention model based on local wisdom on indigenous peoples in Indonesia?
2.
How is the deliberation stage in preventing multidimensional social conflict based on local wisdom on indigenous people in Indonesia?
3.
What is the strategy adopted by indigenous peoples in maintaining peaceful conditions as an effort to prevent multi-dimensional social conflicts based on local wisdom in Indonesia ?
II.
LEGAL MATERIALS AND METHODS The research method used is empirical law research method, because empirical research is research about law living in society5, which applied or implemented by member of society.
the problems examined concerning the actual practice undertaken by indigenous people Dalihan na Tolu in preventing the emergence of multidimensional social conflict.
4 Wasisto Raharjo Jati, ‘Kearifan Lokal Sebagai Resolusi Konflik Keagamaan’ (2013) 21 (2) Jurnal Walisongo 397.
While the approach used is to use anthropological approach (a science that studies the patterns of dispute and settlement in simple society, as well as people who are undergoing development and development process) and sociological jurisdiction (socio legal approach) or empirical juridical approach, society by studying social phenomenon in society which looks its legal aspect, considering the main issues studied and studied in this research are: 1) identification of customary law related to prevention of social conflict conducted by indigenous people Dalihan na Tolu, 2) effectiveness of adat institutions Guidelines on Tolerance related to the prevention of multi-dimensional social conflict perpetrated by the Dalihan na Tolu indigenous people.
III.
RESULT AND DISCUSSION Prevention of Indigenous Peoples-Based Multi-Dimensional Social Conflict of Adat Dalihan na Tolu di Sumatera Utara Indeed, each indigenous community in Indonesia has its own rules in preventing, reducing, resolving multi-dimensional social conflict in the midst of society, resulting in ethnicity, tranquility, and order in society.
Thus will create unity and unity in the life of the nation and state as the main capital in achieving the ultimate goal in creating a prosperous just society prosperous as set forth in the purpose of the Unitary State of the Republic of Indonesia.
Based on the above information, there are some indigenous peoples in Indonesia have the wisdom of loal in preventing, settling and settling conflict of multi-dimensional social conflict which one of them is the prevention of multi-dimensional social conflict through 5 Asri Wijayanti dan Lilik Sofyan Achmad, Strategi Penulisan Hukum, (Bandung: CV.
Lubuk Agung, 2011), 97.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 162 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... indigenous local wisdom Dalihan na Tolu in North Sumatra.
Adat Dalihan na Tolu can be used as a means of preventing and resolving social conflicts in the midst of batak society.
Because, through the customs Dalihan na Tolu each person has a kinship relationship with others who must fulfill their obligations and respect the rights of others.
Kinship relationships are created because of the blood relations and marital relationships that are set in the Dalihan na Tolu kinship system.6 Gultom Rajamarpodang mentions Dalihan means "stove".
Na means "yang", Tolu means "three".
So Dalihan na Tolu means "three-legged stove", i.e three pieces of stone used as a foundation or pedestal for cooking.
So the meaning of Dalihan na Tolu is a local community institution which is a unity of all people who have their own custom rules in regulating the various joints of life that can be used as a tool in overcoming various conflicts of rights and obligations.
7 The elements of Dalihan na Tolu referred to are: a) mora are all families that come from the in-laws.
Mora is a group of relatives who give boru (daughter) to be wife, b) Boru's son is all family of the son-inlaw.
This means that the family comes from the person who took Boru (the daughter) of a person without exception.
Usually, the Boru Anak family has a clan that varies depending on the surname of the son-in-law or the one who takes one's daughter.
Even sometimes children boru can be different religions with moranya, c) Kahanggi is all families or descendants who have a blood relationship from the father.8 6 Djamaluddin Siregar, ‘Peranan Adat Dalihan na Tolu dalam Pelaksanaan Kerukunan Umat Beragama pada Masyarakat Batak’ (2014) 3 (6) Jurnal Kultura 86.
7 Syahmerdan Lubis Gelar Baginda Raja Muda, Adat Hangoluan Mandailing Tapanuli Selatan, a.
The three elements of indigenous peoples Dalihan na Tolu above synergize in the elimination of mitigation and settlement of multidimensional social conflict in society by referring to the existing rules.
b.
The multidimensional rule of social conflict prevention through the customary philosophy of Dalihan na Tolu: "Somba mar Mora (honor, obedience and obedience to Mora), Elek mar Anak Boru (seducing and taking the heart of Anak Boru), Manat-mar marahahah (mutual respect and appreciate Kahanggi) ".
Based on the rules contained in the philosophy that Mora has an obligation in protecting, protecting and providing security for the Borneo.
Mora is obliged to perform his duties as a guardian, protector, and safety giver for his Borneo, both living close to him and living with him.
Mora in Dalihan na Tolu custom is distilled with haruaya (banyan tree) which has leaf that shade again wide, strong tree again big, strong root and life durable.
Shady banyan trees serve as shelter from the hot sun, shelter from rain water, shelter from strong winds, rest areas not only for humans, but also for animals.
Such is the parable of the duty and responsibility of a mora to his son, he must be able to provide protection, security and peace for those who are nearby.
Based on the rules contained in the philosophy that Boru Children have an obligation in the prevention, settlement (Medan: CV.
Abdi Utama, 2013), 175.
8 Anwar Sadat Harahap, ‘ Keberadaan Dalihan na Tolu di Tengah Kehidupan Beragama’ (2011) 2 (8) Jurnal Kalam Keadilan 205.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... | 163 and settlement of social conflict based on some of the following rules: 1) Nagogo Manjujung (Boru's son is always empowered to uphold the pride and dignity of Moranya); 2) Na Juljul tu Jolo (Son Boru always in front of paved the way, eliminating all obstacles in the way that mora will pass); 3) Na Torjak tu Pudi (Son Boru as the support and support from the back of the mora.)
When the mora is in trouble, then Boru's son immediately plays a role in the back to help, in order to achieve Moranya's goals and succeed); 4) Tangkot di na Landit (Boru's child can serve as a barrel on every slippery road as a support for the body to avoid falling); 5) Sulu-sulu di na Golap (Anak Boru as a lamp in the dark for Moranya) If Mora is in distress as if in darkness, losing direction, then the Son of Boru can serve as a lamp so as not to lose direction; 6) Si Tamba na Hurang (Anak Boru can cover any shortcomings of Moranya); 7) Horus na Lobi (Anak Boru also has the right to take advantage of a well-organized event); 8) Manyoging Piri (If there is an offense to the mora, then the Son of Boru will not dare to scold his moranya but he will keep the honor of the manga); 9) Hapinis Hapinis (keys, bars or fences that keep people from entering a protected place means that Anak Boru has the function of guarding Moranya so that he will not be disturbed by others); 10) Tongan Tonga-tonga (Boru's son serves as a unifier and interpreter for all Moranya) Boru's son should not take sides, he must prove his affection to all Moranya without favoritism).
While Kahanggi has an obligation to maintain each other's feelings and treat Kahanggi as self and family, due to the same blood and clan relationship.
Dalihan na Tolu symbolizes three groups of indigenous peoples who work together to solve all matters.
All loads are shared.
This is a symbol of mutual cooperation, togetherness, rights and duties, tolerance, compassion, so kinship remains well preserved.
The strong sense of kinship and fraternity that the natural nature of Dalihan na Tolu community makes one of the factors of creating brotherhood and intimacy in the midst of society.
The reason, if there is a dispute between two or more people, although different religions, usually will be resolved quickly due to a familial relationship between them according to the concept of Dalihan na Tolu.
How could there be enmity if the opposite of his dispute is his kahangginya, his son or his moranya.
Mora would not have the heart to be hostile enough to hurt his sons.
Because, he is part of his son-in-law family.
c. The multidimensional rule of social conflict prevention through Sipaingot, meaning the advice of the parent or harajaon party and the hatobangan whose emphasis is on the giving of warnings about: a) works which may or may not be done, b) and should not be spoken, d) attitude that may and may not be allowed.
The use of sipaingot in daily life in Indigenous people Dalihan na Tolu can be seen at table 1.
Table 1.
Use of sipaingot in daily life in Indigenous people Dalihan na Tolu No Use sipaingot in Adat Dalihan na Tolu society Amount % 1 Very Often Used 159 78.8 2 Often Used 43 21.2 3 Rarely Used 0 0 4 No Longer Used 0 0 Amount 202 100 Source: Primary data of 2016 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 164 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... d. The multidimensional rule of social conflict prevention through Paradaches, which means that rules and regulations are permissible and should not be done in the midst of society in various spheres of life.
All rules that limit the behavior of a person in society is included in the category of pastak ni paradaton as: 1.
"Olat ni dapur do anak boru, angkon in tonga do mora, tu jae tu julu do kahanggi", meaning: position and place of a child boru (family from the son-in-law) in the activities of siriaon (activities that are joy) customs that are silulutons (customary activities that are claimed) are in the kitchen.
While the position of the mora (the family of the in-laws) in every custom activity that is both siriaon and siluluton is located in the position in the living room or the main room, because he is the party pangidoan poda (the party who asked for advice).
Then kahanggai (blood family) freely occupy the face, back, outside the house; 2.
"Mora do Bona Bulu", meaning: It is the mora who always plant bamboo trees in a village; 3.
"Manyurduon burangir do mula ni pokat dohot pasampeon tona", meaning: every start of the deliberation and also convey an invitation in the execution of a party, must be preceded by thrusting burangir (betel leaf) first in front of harajaon (royal).
e. Multi-dimension of social conflict prevention rule through Uhum dohot Patik.
Uhum means law and Patik means benchmark or provision.
Uhum is a rule accompanied by sanctions, while Patik is a provision that sometimes not accompanied by sanctions.
In Uhum and Patik have been arranged about the various joints of life that became the guidance of indigenous peoples in acting, saying, acting, including in maintaining security and public order; f. The multidimensional rule of social conflict prevention through Hapantunon means the various rhymes or proverbs of the Batak community that lead to the prohibition of harming others, the prohibition of libel, the hostile prohibition.
Instead advocate for the exercise of harmony and togetherness, co-operation, helphelping and other good deeds.
Hapantunon leads to the prohibition of harming others, the prohibition of libel, hostile bans; g. A multi-dimensional rule of social conflict prevention through Tutur.
Speech, meaning the calling of intimacy to others in accordance with the bonds of blood, dairy bond or marital bond.
While Poda means advice or advice that aims to lead to the right path and avoid a misguided path.
Each Tutur contains moral values, ethical values, and character of very high spiritual values, so that by applying the meaning of each Tutur, undoubtedly can maintain harmony, harmony and intimacy in the community.
So that the various seeds of conflict will be resolved properly, without causing new conflicts or prolonged conflicts.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... | 165 Table 2.
Type of speech on Angkola Batak society and ethics contained in it Kind of Family Relationship Kind of Tutur Values of ethics, morals and morals vertically from the bottom up Values of ethics, morals and morals vertically from top to bottom The value of ethics, morals and morals horizontally Upward line 1.
Ompung (grand parents) 2.
Aya (Father) 3.
Uma (Modher) 4.
Amang Boru (The father's wife) 5.
Ambou (Sister / Paternal Wife of the Wife) 6.
Tulang (Sister / Paternal Wife of the Wife) 7.
Nantulang (The mother-in-law of the mother / sister of the mother) 1.
Honoring degree; 2.
Keeping his honor; 3.
Love it; 4.
Comply with his orders; 5.
Make it happy; 6.
Caring for it; 7.
Help him; 8.
8.
Lifting.
1.
Love him; 2.
Providing motivation, encouragement and support; 3.
Encourage and support it; 4.
Appreciate his achievements and credibility; 5.
Watching him; 6.
Provide evaluation and constructive criticism; 7.
Facilitatinga.
Mutual respect and appreciation Downward line 1.
Amang (suns) 2.
Boru (Anak Perempuan) 3.
Parumaen (Menantu Perempuan) 4.
Babere (Menantu Laki-laki) 5.
Pahoppu (Cucu) 1.
Respect; 2.
Keeping his honor; 3.
Serve him; 4.
Comply with his orders; 5.
Make it happy; 6.
Caring for him; 7.
Help him; 8.
Raised its degree.
1.
Respect; 2.
Keeping his honor; 3.
Serve him; 4.
Comply with his orders; 5.
Make it happy; 6.
Caring for him; 7.
Help him; 8.
Raised its degree.
Mutual respect and appreciation Lineage sideways 1.
Uak Abang / Dad's sister) 2.
Uda (Dad's Father's Brother) 3.
Nanguda (Adek Ayah's Wife) 4.
Abang (Abang) 5.
Angkang (brother) 1.
Mutual respect and appreciation; 2.
Loving each other; 3.
Help each other; 4.
Mutual support Relationship kinship because of marriage 1.
Husband 2.
Wife 1.
Mutual respect and appreciation; 2.
Love each other; 3.
Help each other; 4.
Mutual support All moral values, ethics and morals contained in the above Speech become the main values that serve to strengthen the relationship of brotherhood and avoid disputes and hostilities.
h. The multidimensional rule of social conflict prevention through Marga, meaning the grouping of Angkola Batak society which aims to regulate marriage, so that the offspring can improve.
In order to avoid the occurrence of inbreeding marriages, they make a community of clans in the clan.
The main purpose of the formation of this clan by the ancestors first is in addition to knowing one's offspring, is also intended to avoid the occurrence of marriage with people semarga; Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 166 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... Deliberation System in Prevention of Social Conflict on Society Adat Dalihan na Tolu Deliberation in preventing and resolving multi-dimensional social conflicts on indigenous people Dalihan na Tolu was conducted with several levels of deliberation in accordance with the status of the people present in a deliberation.
First level is Tahi Ungut-ungut (family deliberation).
Tahi Ungut-ungut is also named with the term Martahi Tot or Tahi Unung-unung ni Sibahue.
In this level deliberation is carried out between husband and wife.
If the problem cannot be solved between husband and wife, then deliberation is attended by parents and siblings of the husband, if the problem comes from the husband.
And if the problem comes from the wife, then the deliberation will be attended by the parents and siblings of the wife.
And if the problem also has not been completed in this way, then the deliberation continues with the presence of parents and siblings of both parties simultaneously; The second is Tahi Dalihan na Tolu or also known as Martahi Sabagas.
At this level, deliberations are held between Mora, Kahanggi, and Anak Boru.
This deliberation is held, if the dispute discussed in the first stage has not been completed, then the settlement is resumed in the deliberation in this second level.
Generally the social conflicts discussed in this stage can be resolved well.
The third is Tahi Godang Parsahutaon (Great Deliberation in a township).
The deliberations at this level were attended by other than the husband / wife, the representatives of the Dalihan na Tolu group, also attended by: Raja Panusunan Bulung (Raja in a settlement / territory), traditional figures, Hatobangon (ancestral men), Banana Rahut Anak Boru from Anak Boru), Ompu ni Kotuk (Anak Boru in the village), Rich People (people who are adat experts); Then the fourth level is Tahi Godang Haruaya Mardomu Bulung (Major deliberation between village or Luat bordering directly).
The deliberations at this level were attended by non-spouses, representatives of the Dalihan na Tolu group, traditional leaders, Harajaon, Hatobangon, Banana of the Mute, the Rich, also attended by Raja Panusunan Bulung (Raja who came from a work place or where the dispute happens) and King Torbing Block (Raja who comes from another area / neighbor adjacent to the area where the work place or where the dispute occurred).
The four levels of deliberation above are tiered and hierarchical levels that must be passed sequentially.
If there is social conflict in the community, first settled in the first level of deliberation.
If the deliberations within this level are considered to be over, then no further deliberations will be resumed in the next stage.
But if the conflict has not been resolved in the deliberations at the first level, then proceed to the second level of deliberation, and if the conflict cannot be resolved, then proceed to deliberation in the fourth level.
Table 3.
Respondents' answers about the perception of the community towards the settlement of multi-dimensional social conflict from the results of deliberations held by the community adat Dalihan na Tolu No Respondents Answers Amount (%) 1 Veri grateful 179 88.7 2 Ordinary 23 11.3 3 Less acceptable 0 0 4 Not Acceptable 0 0 Amount 202 100 Source: Primary Data 2015 Usually the results of decisions issued based on the results of the indigenous Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... | 167 community consultation Dalihan na Toluk with the results of decisions issued by the Religious Court or District Court is very different in the midst of society.
More details can be seen in the table 3.
The table 3 show that 88.7% of respondents answered that the results of the decisions issued based on the results of the deliberations of the indigenous people of Dalihan na Tolu were very acceptable, and 11.3% answered normal and 0% answered unacceptably and 0% of the samples answered no beer.
Therefore, the majority of the public considers that the results of decisions issued based on the results of the deliberations are very acceptable because they are considered more bringing justice and truth.
It cannot be denied that occasional occassional social conflicts occur among indigenous peoples, such as marriage-related conflicts, customary land sale, land boundary determination and so on.
Generally all types of conflicts within indigenous peoples are resolved through indigenous deliberations.
Even if the social conflicts are resolved through the court of justice the numbers are small.
More details can be seen in the table 4.
Table 4.
How to resolve social conflict in society adat Dalihan na Tolu No Respondents' Answers Amount (%) 1 through customary deliberations 170 84.2 2 Through the judiciary in the district court 12 5.9 3 Through the trial with the village apparatus 20 9.9 Amount 120 100 Source: Primary Data 2015 Table 4 exposure indicates that 84.2% of the sample responded that the social conflicts occurring within indigenous peoples were resolved through deliberation, 5.9% of the respondents answered were resolved through the courts in the district courts and 9.9% of the respondents answered were resolved through the village apparatus trial.
These data indicate that generally the social conflicts occurring within indigenous Batak communities, resolved through customary deliberations.
The indigenous people of Dalihan na Tolu consider the decision to be born based on the results of the deliberation is to bring more justice, benefit and legal certainty.
This condition is influenced by several things.
The first is settlement of social conflict through deliberation is a long-termed settlement since ancient times; Second is the parties acting as breakers are respected and respected because they are descended from kings, adat leaders and representatives of indigenous families of Dalihan na Tolu; The Third is settlement of social conflicts based on deliberations has very strict requirements and procedures, so the root of the problem can be known.
Only then shall a fair decision be made to the parties witnessed by the whole community; and the Fourth is the sanctions imposed on the results of the deliberations are sanctions that are moral by not excluding civil sanctions such as compensation, fines, deprivation of rights, termination of marriage and other relationships.
Every deliberation in the settlement of social conflicts and prejudices which pertain to new social, social and cultural life is said to be perfect if it has been supported by the three kinship groups, like three stoves (dalihan) that support one another.
Dedi Kurniawan and Abdul Syani mention that conflict resolution can be done by rectifying the disputes that occur.
Good communication is the most important way to make conflicts that can be easily resolved and Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 168 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... solved.9 Abraham Nurcahyo argues that the cultural approach model emphasizes more socially oriented social activities by engaging both conflicting sides.
Implementation of conflict transformation model by using socio-cultural approach can be done through important events such as commemorations of independence day, youth oath or the day of heroes.10 Agus Sriyanto believes that there are several terms in conflict resolution, namely (1) conflict prevention, (2) conflict resolution, (3) conflict management, (4) conflict resolution, (5) conflict transformation.
Social conflicts can also arise because they are influenced by legal discrimination.
In this case Zaka Firma Aditya argued that as a state organizer, the government often issued discriminatory regulations and policies and tended to cause intolerance to religious and minority faiths, especially to indigenous peoples.11 Strategy of Indigenous Leaders in the Prevention of Multi-Dimensional Community-Based Social Conflict Adat Dalihan na Tolu in Nort Sumatera Long before the emergence of a multidimensional social conflict to the surface, usually adat leaders have applied various strategies that are very telling and very powerful in reducing the emergence of social conflict itse lf.
The various strategies in preventing the emergence of social conflicts that have been applied so far can be seen in the table 5.
Table 5.
Strategy applied by customary leaders in preventing social conflict in the community adat Dalihan na Tolu No Respondents’ Answers Amount (%) 1 Give examples of exemplary in practice some principles adat Dalihan na Tolu as: a. Marsihaholongan (love each other); b. Marsipagodakkon (raising each other up); c. Marsihapadean (to do good with each other); d. Marsibegean (listening to each other), e. Marsilehenan (give each other); f. Marsipagabean (mutual happy), g. Marsipangiboan (give each other mercy); h. Marsitolongan (helping each other), i. Marsilehenan (give each other); j. Marsihargaan (mutual respect); k. Marsipaingotan (remind each other).
56 27.7 2 Giving tasks to all community groups in maintaining security and order 23 11.3 3 Involves all community groups in the execution of siriaon and siluluton 32 15.8 4 Practice philosophy somba mar mora, elek mar anak boru, manat-manat mar kahanggi 74 36.6 5 Involving young people in every indigenous activity of siriaon and siluluton 12 7.4 6 Encourage children to see and pay attention to all customary activities in the community 3 1.5 7 Always give advice on keeping unity and unity in every customary practice 2 0.9 Amount 202 100 9 Dedi Kurniawan dan Abdul Syani, ‘Faktor Penyebab, Dampak dan Strategi Penyelesaian Konflik Antar Warga di Kecamatan Way Panji Kabupaten Lampung Selatan’ (2013) 15 (1) Jurnal Sosiologi 7 10 Abraham Nurcahyo, Soebijantoro, Yudi Hartono, ‘Model Rekonsiliasi Kultural untuk Mengatasi Konflik Sosial antar Perguruan Silat di Madiun’ (2014) 6 (2) Jurnal Studi Sosial 71 11 Zaka Firma Aditya, ‘State Liability for Violation of Constitutional Rights Against Indigenous People in Freedom of Religion and Belief’, (2017) 3 (1) Brawijaya Law Journal 29.
Source: Primary Data 2016 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... | 169 Table 5 shows that there are 27.7 reply that gives exemplary example in applying some customary principles of Dalihan na Tolu, there are 11.3% of the sample replied that by assigning tasks to all community groups in maintaining security and order, there are 36.6% of samples answered by practicing the philosophy of somba mar mora, elek mar anak boru, manatman mar kahanggi is a strategy to prevent conflict in the midst of batak society.
Thereafter 7.4% of the sample responded that by involving young people in each of the indigenous activities of siriaon and siluluton, 1.5% of the sample responded that by involving all community groups in each of the implementation of the siriaon and siluluton as part of the strategy in preventing conflicts within indigenous people batak.
And 0.9% of the sample answered that by Always advising on keeping unity and unity in every customary practice.
All of these strategies are used to instill and prevent conflict in the community.
Based on the table 5, there are 7 (seven) strategies implemented by indigenous people Dalihan na Tolu in preventing, settling and resolving disputes that arise in multi-dimensional social conflict in the midst of society, so that all members of the community start from the young to the parents can be prevented from actions that can lead to conflicts within the community.
The customary law of Dalihan na Tolu not only provides a rule of how the process and procedure of solving social conflict only, but more than that also teaches how to avoid the members of society to not fall and fall into a conflict.
Therefore, many things must be passed and taken into account in running the life of society as stipulated in the custom of Dalihan na Tolu itself.
The rules of the customary institutions of Dalihan na Tolu are non-scriptum or non justifiably, but they have been set about the procedure for resolving social conflicts.
In fact, the types of social conflicts that occur in the middle of society are generally the same among the regions with other regions, only different names and models of resolution.
Table 6.
Data comparing the use of local wisdom with the District Court in resolving multi-dimensional social conflicts in Indigenous communities Dalihan na Tolu Year 2014 2016.
No Type of Social Conflict Dispute Resolution 2014 2015 2016 Adat Dalihan na Tolu PN /PA Adat Dalihan na Tolu P.N/PA Adat Dalihan na Tolu P.N/PA 1 Conflict About Marriage a. Divorce 4 3 2 1 5 2 b. Kawin Sumbang 2 4 c. Kawin Sopar 3 1 5 d. Kawin Mangalakkai 7 4 2 e. Kawin na Ditinggalkon 3 2 f. Kawin yang ditarik Paksa 1 3 2 g. Kawin Marlojong 6 3 9 h. Kawin Mangirit 1 i. Kawin Maninian 2 Ulayat Land Conflict c. Ransacked Ulayat Land 4 2 d. d. Sale of Ulayat Land 3 1 e. PUnilateral Land Management 1 2 2 3 1 3 Insult Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 170 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... a. insult to Marga/status keturunan 4 1 3 2 4 1 b. insult to Religion 5 2 3 4 7 5 c. Insult to Ethnicity 3 3 5 1 4 Murder a.
Murder of members of the village / group / tribe 3 1 5 4 2 b.
Murder of head of village / group / tribe 1 1 5 Persecution b. Persecution of village / group / tribe members 1 2 1 c. Persecution of village head / group / tribe 1 6 Theft 3 6 4 11 2 3 7 Rape / sexual harassment 2 3 8 Fight 2 2 1 9 Gambling 2 1 4 1 2 10 Drinking 4 2 1 2 Source: Customary Institutions and Several District Courts in North Sumatra 2014-2016.
Yurika Dibba Destari Deiredja argues that indigenous and tribal peoples prefer the settlement of disputes through deliberations in order to bring peace to society.
The use of musyawarah does not mean denying the process of dispute resolution through customary court.12 According to Wasisto Raharjo Jati that there are five vital roles of local wisdom as media of religious conflict resolution, namely: 1) Local wisdom as a marker identity of a community.
2) Local wisdom itself provides a cohesive aspect of interreligious, cross-citizen, and belief elements.
3) Local wisdom as part of alternative conflict resolution is more to invite all parties to negotiate by taking advantage of emotional and cultural closeness.
4) Local wisdom serves to encourage the building of togetherness.
5) Local wisdom will change the mindset and mutual relationships of individuals and groups, by putting on top of the culture they possess.
Siti Hamidah argues that the sociolo12 Yurika Dibba Destari Deiredja, Rizky Gelar Pangestu, Hassanain Haykal Haykal, ‘Pengembangan Metode Alternatif Penyelesaian Sengketa Bisnis Berdasarkan Kearifan Lokal Melalui Jalur Mediasi’ (2013) 2 (2) Zenit 142. gical condition of the majority affects the formulation of law and constributes to the law which includes the issue on constitutional law.
13 IV.
CONCLUSIONS AND SUGGESTIONS Conclusions a.
Completion of Multi-Dimensional Social-Based Social Conflict Daihan na Tolu in the following ways: a. Dalihan na Tolu, b.Sipaingot, c, Pastak ni Paradaton, d. Uhum dohot Patik, e. Hapantunon, f. Tutur dohot Poda, g. Marga, h. Dafa nu Tolu, i. Martahi, j. Mangupa.
All of these models are used by the indigenous people of Dalihan na Tolu in resolving multi-dimensional social conflict, so that the potential for conflict can be mitigated and if a conflict has been resolved properly, wisely and wisely; b.
The system of deliberation in preventing, reducing and resolving multi-dimensional social conflict as 13 Siti Hamidah, ‘The Analysis of Islamic Economy in The Constitution of indonesia’ (2017) 4 (1) Brawijaya Law Journal 59.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... | 171 follows: 1) Tah-Ungut-ungut (family deliberation), 2) Tahi Dalihan na Tolu.
Deliberation conducted between Mora, Kahanggi, and Anak Boru, 3) Tahi Godang Parsahutaon (Major deliberation in a village), 4) Tahi Godang Haruaya Mardomu Bulung (Major deliberation between village or Luat bordering directly); c. The strategy of indigenous leaders in preventing multi-dimensional social conflicts are as follows: 1) Provide examples of exemplary principles in practice some customary principles Dalihan na Tolu, 2) Provide tasks to all community groups in maintaining security and order, 3) Involve all community groups in every implementation of siriaon and siluluton, 4) practice the philosophy of somba mar mora, elek mar anak boru, manat-mar mar kahanggi, 5) advise children to see and pay attention to all customary activities in society, 6) always give advice about keeping unity and unity in every customary practice.
Suggestions It is advisable that in the settlement of social conflicts should continue to utilize customary institutions, customary law or local wisdom existing in Indonesia, without ignoring the prevailing laws and regulations, so that the conflicts can be well conceived, wise and prudent.
REFERENCES Books Lubis, Syahmerdan, Gelar Baginda Raja Muda, Adat Hangoluan Mandailing Tapanuli Selatan, (Medan: CV.
Abdi Utama, 2013) Wijayanti, Asri dan Lilik Sofyan Achmad, Strategi Penulisan Hukum (Bandung: CV.
Lubuk Agung, 2011) Journal Articles Aditya, Zaka Firma, ‘State Liability for Violation of Constitutional Rights Against Indigenous People in Freedom of Religion and Belief’ (2017) 3 (1) Brawijaya Law Journal Deiredja, Yurika Dibba Destari, Rizky Gelar Pangestu, Hassanain Haykal Haykal, ‘Pengembangan Metode Alternatif Penyelesaian Sengketa Bisnis Berdasarkan Kearifan Lokal Melalui Jalur Mediasi’ (2013) 2 (2) Zenit Hamidah, Siti, ‘The Analysis of Islamic Economy in The Constitution of indonesia’ (2017) 4 (1) Brawijaya Law Journal Harahap, Anwar Sadat, ‘ Keberadaan Dalihan na Tolu di Tengah Kehidupan Beragama’ (2011) 2 (8) Volume 2 Jurnal Kalam Keadilan Ilyas, ‘Kajian Penyelesaian Konflik antar Desa Berbasis Kearifan Lokal di Kabupaten Sigi, Sulawesi Tengah’ (2014) 6 (1) Jurnal Academica Jati, Wasisto Raharjo, ‘Kearifan Lokal Sebagai Resolusi Konflik Keagamaan’ (2013) 21 (2) Jurnal Walisongo Kurniawan, Dedi dan Abdul Syani, ‘Faktor Penyebab, Dampak dan Strategi Penyelesaian Konflik Antar Warga di Kecamatan Way P a n j i Kabupaten Lampung Selatan’ (2013) 15 (1) Jurnal Sosiologi Nasution, Adawiyah, ‘Penyelesaian Sengketa Pemilihan Kepala Daerah Berbasis Dalihan na Tolu’ (2015) 1 (3) Jurnal Kalam Keadilan Nurcahyo, Abraham, Soebijantoro, Yudi Hartono, ‘Model Rekonsiliasi Kultural untuk Mengatasi Konflik Sosial antar Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 172 | Harahap, Hasibuan Model of Prevention of Social Conflict which Multi Dimensions... Perguruan Silat di Madiun’ (2014) 6 (2) Jurnal Studi Sosial Siregar, Djamaluddin, ‘Peranan Adat Dalihan na Tolu dalam Pelaksanaan Kerukunan Umat Beragama pada Masyarakat Batak’ (2014) 3 (6) Jurnal Kultura Sriyanto, Agus, ‘Penyelesaian Konflik Berbasis Budaya Lokal’ (2007) 5 (2) Jurnal Ibda
38 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.03 An Assessment of the ‘Lawfulness’ of Use of Force as Dispute Settlement Method Md Mustakimur Rahmana, Mohsina Hossain Tushib aFaculty Member, Department of Law, Notre Dame University Bangladesh Email: mrahman.ntu@outlook.com bAssistant Judge, Kishorganj Judge Court, Kishorganj, Bangladesh Email: htushi@gmail.com Submitted : 2018-10-12 | Accepted : 2019-03-13 Abstract: Public international law has been developing and working with international humanitarian law & international human rights law together.
As it developes, international law is renovating its nature from softer to harder.
Although it is a great achievement to see that international (criminal) law has the influence to deal with some particular international criminals, however, the world is still far beyond from its ambition.
Sometimes states are behaving very unusual against other states and using force for various reasons.
While using force against other states is prohibited under Article 2(4) of the UN Charter.
Nevertheless, states can use force under Article 51 if it is necessary for self-defence and only if it is approved by the Security Council under Chapter VII of the UN Charter.
However, it is a question of fact that how a state can use force(s) and how it will be legitimate under several international laws?
Hague law prohibits the use of new weapons and engine in the war because it seems disproportionate and unnecessary while the UN Charter is silent about the method of using force.
Hence, it seems not clear that how a ‘force’ would be measured and will pass the ‘legality’ test.
The indicator, thus remain unclear and very subjective.
This research uses normative legal research with statute approach and case study approach, especially analysing some practices of use of forces against various states; such as Iraq and Kosovo.
Keywords: dispute settlement; use of force; self-defence; international humanitarian law; international criminal law.
I.
INTRODUCTION Current development in International Law shows that the human rights factor affects every decision of States in conducting international relation.
While the United Nations Charter (UN Charter) emphasizes on peacefull settlement in any disputes arose between States and other subject of International Law, the use of force is also recognized as one of disputes settlement methods in international fora.
However, such method is allowed only under special circumstances, which include self-defense, as envisages under Article 51 of the UN Charter and if it is approved by the Security Councel under Chapter VII of the UN mailto:mrahman.ntu@outlook.com mailto:htushi@gmail.com Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method | 39 Charter.
Thus, Charter only says that states can use force for self-defence, but does not provide any particular way to use force.
However, neither the Charter sets any category of weapons that can be used during armed conflict.
Jus in Bello (International humanitarian law) and jus ad Bellum (laws of war) are two separate areas of law, but both branches of laws dealing with the use of force during armed conflict.1 In the case of jus ad bellum, the law regulates the right to use of force; such as: whether or not the reason for using force was legitimate and reasonable?
On the other hand, jus in bello regulates the measure of force using in the war.
Justifying the necessity and proportionality is very important for any war.
In the case of any particular armed conflict, use of force may be allowed under jus ad bellum; however, that particular force could be unnecessary and disproportionate under jus in bello.
Hence, the necessity to know the ‘lawfulness’ of any use of force is very significant.
This research seeks to analyse how a state can use force(s) and how it will be legitimate under international laws?
Can it be used as a dispute settlement method?
II.
LEGAL MATERIALS AND METHODS Legal methodology used in this research is normative method, which analyses relevant legal instruments relating to the use of force under international laws.
While the primary legal materials consist of all the legal framework related to the use of force as well as humanitarian and human 1 Keiichiro Okimoto, ‘The Cumulative Requirements of Jus ad Bellum and Jus in Bello in the Context of Self-Defense’ (2012) 11(1) Chinese Journal of International Law 2.
2 IHL and other legal regimes – jus ad bellum and jus in bello, International Committee of the Red Cross (29-10-2010), rights laws, secondary ones included the references, including books, journal articles as well as conference papers and other documents having correlation with the issues.
The technique of analysis data used legal interpretation.
Legal materials used include Charter of the United Nations 1945, the Geneva Convention 1949, Rome Statute of the International Criminal Court 1998 as well as the Statute of International Court of Justice III.
RESULT AND DISCUSSION Distinction between Jus Ad Bellum and Jus In Bello in Relation to ‘Use Of Force’ Although jus is bello is a part of jus ad bellum, there is a clear distinction between them.
This distinction is relatively new and became a debatable issue just after a decade of WWII.2 The theory of war is a theory of morality, but not law.
This moral theory is a theory that separates the two doctrines.3 In case of the theory of war, all combatants have the same rights and liabilities.
It does not matter whether they fight in any just or unjust war.4 In addition, a combatant is not guilty of participating in any war, rather he would be liable for not following the rules of the war.
However, there is a close connection between ad bellum and in bello.
For example, in reaction to an Israeli attack in the Gaza in December 2008 and in January 2009, a question had been asked that whether or not Israel’s attacks were disproportionate.
In return to this question, the US ambassador to the UN answered, "Israel has the right to defend itself against these rocket attacks and <https://www.icrc.org/en/doc/war-and-law/ihlother-legal-regmies/jus-in-bello-jus-adbellum/overview-jus-ad-bellum-jus-in-bello.htm> 3 Jeff McMahon, ‘Morality, Law, and the Relation Between Jus ad Bellum and Jus in Bello’ (2006) 100 American Society of International Law 46 4 Ibid.
https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 40 | Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method we understand also that Israel needs to do all that it can to make sure that the impact of its exercise of right of self-defence against rockets is as minimal and no effect [sic] on the civilian population."
5 This statement shows that an attack may be justified but that must be proportionate and should not create any risk for the civilians.
This is the linked between these two doctrines.
Let us discuss these two doctrines considering the idea of modern international law.
Article 2(4) of the UN Charter prohibits states from using force against any state.
However, the same Charter also states that the use of force could be legal under two different circumstances; they are: Article 51 (self-defence) and chapter VII (collective force).
6 If any state uses force unlawfully, then International law allows the victim state to use force lawfully against the attacking state.
This may be legally done under Article 51 (self-defence) or by a resolution 7 approved by the Security Council under Chapter VII of the UN Charter.
Thus, the Charter only says that the state can use force for self-defence, but nothing is written about the procedure of using force.
Neither the Charter talks about any particular weapon that may be used in the armed conflict, although this issue was illustrated in the Nuclear Weapon Advisory Opinion (NWAO).8 In 1996, the International Court of Justice (ICJ) stated in the Advisory Opinion on the matter of Legality of the Threat or Use of Nuclear Weapons.
9 5 Press Release, U.S. Mission to the U.N., Statement by Ambassador Zalmay Khalilzad, U.S.
Permanent Representative, on the Situation in Gaza (Dec. 31, 2008), available at <http://www.usunny.us/pressjreleases/20081231_ 381.html> 6 Bruno Simma, ‘NATO, the UN and the Use of Force’(1999) 10 The European Journal of International Law 3 7 Sanction can be suspension of UN membership, military/paramilitary force enforcement etc.
However, it neither directly prohibits nor agrees to use any force including nuclear weapon.
10 As a result, it remains unclear whether a state can use force as much as a state wants.
While we are discussing the UN Charter that connects with the validity of the use of force, we must remember that the Charter has no control into the procedure of using of force.
If any state wants to use any force, then they have to follow some procedure which must be proportionate and necessary.
If any force is not proportionate and necessary to use, then that may create risk for the civilians.
In general, humanitarian law covers this area.
The main focus of humanitarian law is to protect noncombatants during any armed conflict.11 This protection is given under Jus in Bello which is applicable to all noncombatants including the civilians of the perpetrating state.
12 The fundamental commitment of the humanitarian law is the ‘principle of human dignity’ where all human being possesses an intrinsic worth which should be protected.
13 In terms of codification, the IHL has two parts under International law and these are Geneva Law and Hague law.14 The two branches of laws play different roles in humanitarian intervention.
Geneva law assists the victims during armed conflict and Hague law regulates the legality and methods of use of force.
Under the Hague law, it is prohibited to use new weapon and engine in the war 8 Advisory Opinion of the International Court of Justice 1996 9 Ibid 10 Ibid 11 Keiichiro Okimoto, above n 1, 5 12 Ibid 13 Gerald L. Neuman, ‘Humanitarian law and counterterrorist force’(2003) 14(2) European Journal of International Law Oxford University Press 2 14 Ibid http://www.usunny.us/pressjreleases/20081231_381.html http://www.usunny.us/pressjreleases/20081231_381.html Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method | 41 because of disproportion and unnecessity,15 while in the UN Charter, there is no restriction or limitation of using any weapon which was confirmed in the Advisory opinion 1996.16 Hence, it can be argued that there are some contradictions in assessing the “lawfulness” of the use of force in the eye of Humanitarian law and International law.
While the principles of lex speciali derogat legi generali could be applied and thus the Hague Law prevails, however, the Hague Laws only applied to those who ratifies the Laws.
It is thus submitted that the agreed universal provisions are needed to achieve legal certainty.
Humanitarian Intervention And the Legitimacy of Use of Force All the signatory states of International Humanitarian Laws (IHL) are bound to follow the Common Article 3 of the Geneva Conventions 195417, Hague Convention, and the Convention on Certain Conventional Weapon (CCW) etc.
These laws mainly 15 Ibid 16 Advisory Opinion of the International Court of Justice 1996 17 ARTICLE 3 is common to the four Geneva Conventions of 1949 “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the abovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; cover the war rules during armed conflict, whether it is international or noninternational.
In addition to this, these laws protect the civilians too.
Considering the rules of war, it is clear that IHL covers war crime and crimes against humanity, but it does not cover genocide as genocide is possible during peacetime which is beyond the jurisdiction of IHL.
Moving back to the point of war crime and crimes against humanity, any war crime may constitute a violation of IHL and therefore, an individual may be responsible for his criminal activity under IHL.18 The first witness of recognizing the IHL principle can be seen in the Hostage case of the US Military Tribunal at Nuremberg.19 In this case, the Tribunal stated that the legality of the use of force had no validity upon the application of the law of occupation.
20 Usually, humanitarian intervention arises from war or use of force.
According to Kelsen, “war is permitted (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.” 18 Sandesh Sivakumaran,, ‘Re-envisaging the international law of internal armed conflict’(2011) 12(1) European Journal of International Law, Oxford University Press 10.
19 Keiichiro Okimoto, above n 1, 7.
20 Hostage Case, US Military Tribunal, Nuremberg, Judgment of 19 February 1948, p 1305.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 42 | Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method against illegal act”;21 however, the war must be lawful in response to any illegal action.
Moreover, at the end of the 20th century, the doctrine has changed a lot and developed in favour of a legal measure of “humanitarian intervention”.22 The first concentration of humanitarian intervention war was NATO’s intervention in Kosovo 23 .
This bombing campaign has begun on 24th March 1999 and continued 78 days which was known as Operation Allied Force.
Although the main purpose of this operation was to protect the civilian, a massive number of civilians died because of NATO’s bombing.
24 The question was whether or not the intervention was “lawful” under the modern humanitarian law?
The UN Charter has not mentioned clearly anything about humanitarian intervention, but the Charter says not to use force against states25 unless it is necessary for self-defence26 or it is approved by the Security Council under the Chapter VII of the Charter.
Regarding NATO’s intervention, Yugoslavia claimed that NATO’s bombing caused numerous civilian casualties.
27 Hence, attacking Kosovo by NATO was in question because the outbreak was not authorized by the Security Council neither it was for selfdefence.
However, some international lawyers have argued that the intervention was lawful under the customary international law and they think that the idea of humanitarian intervention existed in the past already.
28 While we consider NATO’s action against 21 Yoram Dinstein, ‘War Aggression and Selfdefence’ (2007) 18(4) European Human Rights Law Review 67 22 Ibid, 71 23 Gabriel Vockel, ‘Humanitarian intervention in cases of overwhelming humanitarian necessity’(2005) 10(1) Coventry Law Journal 1 24 Kenneth Roth, ‘Was the Iraq War a Humanitarian Intervention?’ (2006) 5(2) Journal of Military Ethics 11 Kosovo, it was a question to ask whether the intervention was proportionate or not.
Furthermore, the initial reason behind NATO’s attack was against war crime, genocide, and crime against humanity in Kosovo which was recognized under international law and humanitarian law.
These crimes were a serious violation of the humanitarian law, international law and international criminal law.
While we are discussing the fact of Kosovo, we must not forget that International Criminal Tribunal for the former Yugoslavia (ICTY) is dealing with this matter.
This was the first time where an international criminal tribunal has been established by the UN in May 1993.29 This tribunal has brought the issue of individual criminal responsibility for unlawful humanitarian intervention in Kosovo.30 Coming back to the point of humanitarian intervention, undoubtedly, it may be necessary for some situations to stop ‘mass killing’, in fact, it could be legal and justified.
Although the validity of any external intervention varies from situation to situation.
For example, intervention in Iraq was in question and several academics and international lawyers have criticised the US’s intervention against Iraq.
The forces used against Iraq was neither for self-defence nor was it approved by the Security Council.
Regarding intervention in Iraq, Ken Roth described in his article that forces used in Iraq could be characterized as a humanitarian intervention only if it meets five important factors.
31 These factors are: “use of force 25 Article 2(4) of the UN Charter 1945 26 Article 51 of the UN Charter 1945 27 Kenneth Roth, above n 26, 11.
28 Gabriel Vockel, above n 25, 3.
29 United Nations, International Criminal Tribunal for former Yugoslavia <http://www.icty.org/en/about> (accessed November 20, 2018).
30 Ibid .
31 Kenneth Roth, above n 26, 4. http://www.icty.org/en/about Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method | 43 must be last option to prevent killing, the intervention for humanitarian purpose, measure of force must not violate human rights and humanitarian law, use of force has to be better for civilian rather than making more harm and it would be far fair if it can be endorsed by the Security Council”.32 Before analysing these factors, it has to be clear that whether or not any force was required against Iraq in 2003.
As mentioned above that humanitarian intervention may be required in a situation where the level of killing is high which can be considered as a ‘mass killing’.33 While we analyse the history and find that Iraq used a chemical weapon in 1988 against Iranian soldiers and slaughtered around 100,000 Kurds, 34 nevertheless the level of killing in 2003 was not mass.
Therefore, humanitarian intervention could have happened in 1988 instead of 2003.
Moreover, the intervention could be justified as ‘lawful’ if the force was used to halt future threat, but evidence shows that Iraq had no plan to do something like they have done in 1988.
35 Moving on to those five factors mentioned by Roth, we know that Iraq intervention was not sanctioned by the Security Council and also the forces used against Iraq caused a lot of casualties including deaths and wounded of civilians.
Undoubtedly this incident was a violation and disrespect of the humanitarian law.
Based on the analysis of the Iraq incident, it remains unsolved and we find no strong grounds to justify the validity of forces used against Iraq.
32 Ibid, 5.
33 Ibid, 6.
34 Ibid.
35 Ibid.
36 Gerald L. Neuman, above n 15, 6.
37 For an exhaustive list of international instruments on terrorism, see the Internet site UN action against terrorism, http://www.un.org/terrorism 38 Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963; Convention for the Suppression of Unlawful Seizure of Terrorism and International Humanitarian Law After the 9/11 incidents, states have seriously taken the issues of terrorism and territorial security seriously.
Therefore, it is imperative to understand the relationship between IHL and terrorism.
In general, when a state attacks a terrorist group without any prior permission from the host nation, then it may constitute an international armed conflict.36 Before going into deep, we must know the status of ‘terrorist’ and ‘terrorism’ under IHL.
Coming to the horizon of IHL, it is to clarify that IHL only applies to armed conflicts.
Thus, only those terrorist activities will be covered under IHL if they are committed within the agenda of armed conflict.
In addition, it is to remember that terrorism committed in a situation of any internal violence or during peacetime, then those activities will not be covered by IHL.37 As mentioned above that states have taken the issue of terrorism seriously, it would not be a surprise to articulate that, at present, there is no universal treaty that strictly prohibits terrorism and applied in all conditions.
Although, an attempt had been taken to establish a treaty in 1937 which was the Convention for the Prevention and Punishment of Terrorism, unfortunately, that Convention has never been entered into force.
Nonetheless, the United Nations has adopted a few treaties dealing with terrorism.
38 In case of IHL, the four Geneva Conventions and two Additional Protocols are mainly Aircraft, 1970; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973; Convention against the Taking of Hostages, 1979; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988; International Convention for the Suppression of Terrorist Bombings, 1997; http://www.un.org/terrorism Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 44 | Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method designed to protect the war victims.
However, none of the above-mentioned Conventions has established a definition of ‘terrorism’ or ‘terrorist act’.
Thus, under IHL, there is no clear status of a ‘terrorist’ in connection to either international or non-international armed conflicts, although, in general, terrorist acts are crimes under domestic law and also some activities may qualify as war crimes or as crimes against humanity.
39 Nevertheless, the Geneva Conventions do not support any terrorism.
Article 33 of the Fourth Geneva Convention states that “No protected person may be punished for an offence he or she has not personally committed.
Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.” This is the only provision where the term ‘terrorism’ has been used.
Although the term ‘terrorism’ used in the Geneva Convention has a narrow meaning in compare to modern-day language.
For example, the activities like wilful killing, torture or inhuman treatment will not form any terrorism, rather they are grave breaches of the Convention; such as war crime.40 Of course, they have to fulfil the threshold and once the threshold of armed conflict has been reached, it may be argued that acts of violence against civilians or civilian objects as ‘‘terrorist’’ because such acts already constitute war crimes under IHL.
41 Under the Geneva Conventions, the act of terrorism may occur in international International Convention for the Suppression of the Financing of Terrorism, 1999 39 International humanitarian law and the challenges of contemporary armed conflicts, Document prepared by the International Committee of the Red Cross for the 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007; https://www.icrc.org/en/doc/assets/files/other/irrc -867-ihl-challenges.pdf 40 Fourth Convention, Article 147.
41 Above n 41 armed conflict and also a non-international armed conflict.
For example: the war occurred between the US-led coalition and the Taliban regime in Afghanistan is a case of an international armed conflict and the war between the Afghan government and terrorist groups like Taliban and AlQaeda if a form of non-international armed conflict.42 In both cases, international and noninternational, IHL prohibits the most common type of terrorist activities; such as attacks against non-combatants, 43 indiscriminate attacks, 44 acts or threats whose main aim is to spread terror among the civilian population45 and acts of “terrorism” aimed against civilians in the power of the enemy.46 As stated above that if the activities are considered to be a war crime then that must be universally prosecuted.47 However, all acts are not prohibited by IHL and this may be an attack against military objectives.
Coming to the fact of status of a terrorist, if anybody is detained in an international armed conflict then IHL will fully apply to him and in case of any noninternational armed conflict, the deprivation of liberty is governed by Common Article 3, other applicable treaties, customary international law, and other bodies of law such as human rights law and domestic law will apply.
Nonetheless, no act of terrorism is compatible with any provision of international humanitarian law and it is a core 42 Ibid 43 Protocol I, Article 51(2); P II, Art.
13(2) 44 Protocol I, Article 51(4) and (5) 45 Protocol I, Article 51(2); P II, Art.
13(2) 46 Geneva Convention IV, Art.
33(1).
In noninternational armed conflicts Art.
4(2) of Protocol II extends this protection to all individuals who do not or no longer directly participate in the hostilities.
47 Geneva Convention IV, Art.
147; P I, Art.
85(3)(a); ICC Statute, Art.
8(2)(e)(i)] https://www.icrc.org/en/doc/assets/files/other/irrc-867-ihl-challenges.pdf https://www.icrc.org/en/doc/assets/files/other/irrc-867-ihl-challenges.pdf Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method | 45 duty of any state party to those treaties to find the solution.
In addition, states have a legitimate interest in stopping criminal behaviour as well as to protect their own citizens.
48 Besides, any third states may respond to grave breach or prevent further violation which is not prohibited by the Geneva Conventions, although this may happen only if the state does not take any appropriate action to stop terrorism.
While IHL grants permission to use of force to stop terrorism during armed conflict, it creates a conflict under the UN Charter as the Charter doesn’t allow any state to use force against another state without the approval of the Security Council or for self-defence.49 Enduring Armed Conflict and Humanitarian Law At present, we are having two armed conflicts in Syria and Palestine.
In Syria, civilians are facing several humanitarian difficulties and death due to internal conflicts between the government and others.
Although the Security Council tried to take a step against this situation; however, due to negative votes from China and Russia, the Security Council has failed to adopt any resolution.50 Consequently, no external force has been used against Syria to prevent this humanitarian crisis.
As a result, civilians are suffering and the refugee crisis.
Humanitarian laws are being violated and so many refugees are fleeing abroad, but still, 48 Article 1 common to the four 1949 Geneva Conventions recalls this basic truth with the following words: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.
49 Hans-Peter Gasser, ‘Ensuring respect for the Geneva Conventions and Protocols: The role of third States and the United Nations’, Hazel Fox and Michael A. Meyer (eds), Effecting Compliance, The British Institute of International and Comparative Law, London, 1993, pp.
15-49, esp.
p. 27 we do not notice adequate international response to minimize this issue.
A general question can be raised that if NATO is so much concern about humanitarian intervention then why the NATO is not captivating any step against Syrian issue?
Why the NATO was so concerned about Kosovo?
We all know about the situation of Palestine.
The legal consequence of the Palestinian wall was a big question for the international community.
In 2004, the ICJ has given an advisory opinion.
The court articulates in its opinion that “The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated regime, are contrary to international law”.51 But we do not see any humanitarian action to stop the crisis of Palestine.
Conflict Between Humanitarian Law and Public International Law International law utters that heads of the states are immune from any criminal prosecution.
This idea came from the concept of “state sovereignty” where heads of the states are the representatives of the states; therefore, the status of the states and status of the heads of states are literally similar.
However, the 21st century’s laws are arguing to make a distinction between state and heads of the states.
Where there is a legal gap between state and heads of the state.
Any 50 Security Council Fails to Adopt Draft Resolution on Syria That Would Have Threatened Sanctions, Due to Negative Votes of China, Russian Federation, 19th July 2012; see the official website: https://www.un.org/News/Press/docs/2012/sc107 14.doc.htm (accessed July 15, 2018) 51 ICJ advisory opinion 2004; see: http://www.icjcij.org/docket/index.php?pr=71&p 1=3&p2=1&case=131&p3=6 (accessed July 15, 2018) https://www.un.org/News/Press/docs/2012/sc10714.doc.htm https://www.un.org/News/Press/docs/2012/sc10714.doc.htm http://www.icjcij.org/docket/index.php?pr=71&p1=3&p2=1&case=131&p3=6 http://www.icjcij.org/docket/index.php?pr=71&p1=3&p2=1&case=131&p3=6 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 46 | Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method state itself cannot be liable for any criminal activities, but heads of the states may be responsible for criminal activities.
Under this structure, any individual will be responsible for international crimes.
Although not for all crime, some particular crimes illustrated in the Rome Statute.
Those core international crimes are genocide, war crime, crimes against humanity and aggression.
Violation of the Rome Statute may be also a violation of the humanitarian law.
Under the universal jurisdiction, any state can take action against an international criminal.
On the other hand, under international law, states are equally sovereign; therefore, if any state takes action against another state or heads of the states then that will be a violation of the principle of “state sovereignty”.
But the aims of 21st century’s international laws for international human rights are the protection of civilians and international peace.
Hence, to justify the principle of “heads of state immunity” against any humanitarian law should be more scrutinized for the purpose of protection of civilians rather than the protection of heads/former heads of the state.
For example, former President Pinochet was arrested under universal jurisdiction in London, UK for his criminal activities.
52 The House of Lord denied immunity for Pinochet because of his criminal responsibilities including torture.53 His arrest was debatable under international law because it was a violation of “heads of the state immunity” principle; nevertheless, on the other hand, the new approach of jus cogens is the highest norm of law.
Any 52 Naomi Roht Arriaza, ‘The Pinochet Precedent and Universal Jurisdiction’ (2001) 35(2) New England Review 311-319.
53 Ibid, 2.
54 Louse Philippe Rouillard, “the Caroline Case: Anticipatory Self-Defence in Contemporary International Law,” 1, no.
2 (2004): 104-120.
55 Under Article 16 of the Rome Statute, “no investigation or prosecution may be commenced or proceeded with under this Statute for a period of violation of jus cogens should be prosecuted.
Pinochet has violated the concept of jus cogens and he was arrested for that.
The conflict of international law and humanitarian law was very critical; nevertheless, humanitarian law and human rights have prevailed here rather than the customary principle of “heads of state immunity”.
Limitation of Humanitarian Law and Lawful Use of force The perception of ‘self-defence’ has come from the Caroline case where Britain attacked some Canadian rebels in the United States.
54 Using force against a nation as a defence is permitted under treaty law.
In addition, under modern international law, using force is also permitted under Chapter VII of the UN Charter, but the point is whether the force permitted by Chapter VII would be under the legality test?
In fact, there is no precise legal provision that may justify the legality of any force that has been authorised by the Security Council.
For example, if the civilians face serious destruction and humanitarian crisis due to a collective force authorised by the SC, would the authority be liable for that [illegitimate] force?
Although military commanders and superiors are responsible for their activities under Article 28 of the Rome Statute, it is a matter of question that whether the Prosecutor of the ICC would be able to exercise the jurisdiction over a crime authorised by the Security Council.
55 The 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions”.
Therefore, SC may defer any investigation.
Furthermore, SC may refer any matter to the ICC under Article 13 of the Statute.
However, it is to articulate that whether the SC would ever refer any Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method | 47 concept of humanitarian intervention is relatively longstanding and part of the customary international law.
Thus, any state can take action to protect civilians of another state.
However, what will happen if any state takes the wrong action willingly or unwillingly and makes the situation even more vulnerable?
NATO’s bombing in Kosovo could be a good example where many civilians have died due to NATO’s force, but then there was no question regarding the legitimacy of that particular force due to the authorisation of the SC.
This is, of course, a kind of limitation of the international humanitarian law.
In addition, humanitarian intervention is not possible during peacetime which may necessary in some situations.
For example, the recent incident of Myanmar seeks international attention.
Millions of Rohingyas have been persecuted which is may constitute crimes against humanity, but it was not a situation of any armed conflict and therefore, IHL would not apply.
IV.
CONCLUSION AND SUGGESTION Under the UN Charter there is an obligatoir method in international disputes settlement both during armed conflict and during peace time, that is not exercising the use of force.
Such obligation, however, can be breach under two circumstances that is for self-defense and as long as it is approved by the Security Council.
Furthermore, while the use of ofrce can be used as a dispute settlement method, however, the analyses of relevant legal instruments show inconsistency between one legal instrument to another regarding the lawfulness of the use of force.
matter to the ICC which was permitted by themselves It is submiteed that the “lawfulness” of the use of force remains unclear and very subjective and thus resulted to a legal uncertainty.
Prosecuting an individual for the international crime was not so common even before 100 years back.
However, we are the witnesses of the greatest conjunction of the International Criminal Court (ICC) who has the power to prosecute the individual international criminal.
We have also seen the International Criminal Tribunal for the former Yugoslavia (ITCY) & International Criminal Tribunal for Rwanda (ICTR).
The future leaders will understand the power of the ICC and consequences for violating humanitarian laws.
States are being powerful through modern technologies and making weapons for upcoming wars.
Nonetheless, states are also being aware of them.
They know the consequences of misusing the force against any state.
International laws are being stronger day by day; henceforth, abuse of them would not be good for any suspected criminal.
REFERENCES Journals Articles Arriaza, Naomi Roht, ‘The Pinochet Precedent and Universal Jurisdiction’ (2001) 35(2) New England Review.
Dinstein, Yoram, ‘War Aggression and Selfdefence’ (2007) European Human Rights Law Review.
Jeff McMahon, ‘Morality, Law, and the Relation between Jus ad Bellum and Jus in Bello’ (2006) 100, American Society of International Law.
Hans-Peter Gasser, ‘Ensuring respect for the Geneva Conventions and Protocols: The role of third States and the United Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 48 | Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method Nations’, Hazel Fox and Michael A. Meyer (eds), Effecting Compliance,(1993) The British Institute of International and Comparative Law, London.
Louse Philippe Rouillard, ‘the Caroline Case: Anticipatory Self-Defence in Contemporary International Law,’ 1 2 (2004): 104-120.
Neuman, Gerald L., ‘Humanitarian law and counterterrorist force’ (2003) 14(2) European Journal of International Law Oxford University Press.
Okimoto, Keiichiro, ‘The Cumulative Requirements of Jus ad Bellum and Jus in Bello in the Context of Self-Defense’ (2012) 11(1) Chinese journal of International Law.
Roth, Kenneth, ‘Was the Iraq War a Humanitarian Intervention?’ (2006) 5(2) Journal of Military Ethics.
Rouillard, Louse Philippe, ‘The Caroline Case: Anticipatory Self-Defence in Contemporary International Law’ (2004) 1 (2) Miskolc Journal of International Law 104-120.
Simma, Bruno, ‘NATO, the UN and the Use of Force’(1999) 10 The European Journal of International Law.
Sivakumaran, Sandesh, ‘Re-envisaging the international law of internal armed conflict’ (2011) 12(1) European Journal of International Law, Oxford University Press.
Vockel, Gabriel, ‘Humanitarian intervention in cases of overwhelming humanitarian necessity’(2005) 10(1) Coventry Law Journal.
Statute And Case Law Advisory Opinion of the International Court of Justice 1996.
Charter of the United Nations 1945.
Common Article 3 of the Geneva Convention 1949.
Rome Statute of the International Criminal Court 1998.
US Military Tribunal in Nuremberg, List and Others (Hostage Case), Judgment, 8 Law Reports of Trials of War Criminals (1949).
Internet Resources International Court of Justice, Advisory Opinion (2004) <https://www.icjcij.org/files/case-related/131/13120040709-ADV-01-00-EN.pdf> International humanitarian law and the challenges of contemporary armed conflicts, Document prepared by the International Committee of the Red Cross for the 30th International Conference of the Red Cross and Red Crescent, Geneva, Switzerland, 26–30 November 2007; <https://www.icrc.org/en/doc/assets/fil es/other/irrc-867-ihl-challenges.pdf> IHL and other legal regimes – jus ad bellum and jus in bello, 29-10-2010, International Committee of the Red Cross; see: https://www.icrc.org/en/doc/war-andlaw/ihl-other-legal-regmies/jus-inbello-jus-ad-bellum/overview-jus-adbellum-jus-in-bello.htm United Nations Mechanism for International Criminal Tribunals Legacy, International Criminal Tribunal for Rwanda <http://www.unictr.org/AboutICTR/G eneralInformation/tabid/101/Default.a spx> United Nations, International Criminal Tribunal for former Yugoslavia <http://www.icty.org/en/about > United Nations, Security Council Fails to Adopt Draft Resolution on Syria That https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf https://www.icrc.org/en/doc/assets/files/other/irrc-867-ihl-challenges.pdf https://www.icrc.org/en/doc/assets/files/other/irrc-867-ihl-challenges.pdf https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm https://www.icrc.org/en/doc/war-and-law/ihl-other-legal-regmies/jus-in-bello-jus-ad-bellum/overview-jus-ad-bellum-jus-in-bello.htm http://www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx http://www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx http://www.unictr.org/AboutICTR/GeneralInformation/tabid/101/Default.aspx http://www.icty.org/en/about Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Rahman, Tushi An Assessment of The ‘Lawfulness’ of Use Of Force As Dispute Settlement Method | 49 Would Have Threatened Sanctions, Due to Negative Votes of China, Russian Federation (19 July 2012) <https://www.un.org/News/Press/docs /2012/sc10714.doc.htm> https://www.un.org/News/Press/docs/2012/sc10714.doc.htm https://www.un.org/News/Press/docs/2012/sc10714.doc.htm
DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.03 | 157 Restorative Justice: an Alternative Process for Solving Juvenile Crimes in Indonesia Mahfud Jufria, Norbani Binti Mohamed Nazerib, Saroja Dhanapalc a Faculty of Law, University of Malaya, Malaysia Email: mahfudsh@yahoo.com bFaculty of Law, University of Malaya, Malaysia Email: norbanim@um.edu.my cFaculty of Law, University of Malaya, Malaysia Email: saroja.dhanapal@um.edu.my Submitted : 2019-03-01 | Accepted : 2019-08-16 Abstract: Restorative justice concept may refer to an alternative process for solving disputes including criminal law violation has been well known in Indonesia.
The Act Number 11, 2012 on Juvenile Justice System has acknowledged restorative justice approach as a part of criminal justice system in dealing with a child in conflict with the law.
It has become an essential provision in the Act as it provides option for law enforcers to avoid punishing juvenile offenders through traditional criminal approach.
This research aims to examine restorative justice for juvenile offenders in Indonesia based on the Juvenile Justice System Act Number 11, 2012 as a form of alternative dispute resolution for juvenile crimes and other related laws and to provide a brief of the implementation of restorative justice in Indonesia that is integrally enforced in Indonesian criminal justice system dealing with a child in conflict with the law.
It divides the discussion into two parts restorative justice in the juvenile justice system act 2012 and the implementation of restorative juvenile justice in Indonesia.
In order to response to these research aims, this paper employs doctrinal legal research.
Keywords: restorative justice; alternative process; juvenile crimes; Indonesia.
I.
INTRODUCTION The concept of restorative justice may refer to an alternative process for solving disputes, to alternative sanctioning options, or to a distinctively different, new model of criminal justice organized around principles of restoration to victims, offenders and the 1 Theo Gavrielides, ‘Restorative justice—the perplexing concept: 
Conceptual fault-lines and power battles within the restorative justice communities in which they live.1 The most popular definition of restorative justice is offered by Marshall, who defines it as “a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of movement’ (2008) 8(2) Criminology and Criminal Justice 165,166. doi: 10.1177/1748895808088993 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 158 | Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... the offence and its implications for the future”.2 Conflict resolution reflects the processes of social and relationship, with children who are able to solve disputes in amicable ways having a bigger opportunity of getting involved in friendships and achieving peer acceptance.
3 In addition, family mediation has been widely used to help parents agree on issues regarding their children and teachers in schools introduce training programs to empower pupils’ skills to overcome conflict.4 Moreover, alternative dispute resolution is not only refereed to a simply dispute resolution, but it is also referred to additional traditional dispute resolution by litigation, or particularly, to adjudication by a court.5 It is clear that an alternative dispute resolution such as restorative juvenile justice approach that has been incorporated in the Indonesian Act Number 11, 2012 on Juvenile Justice System Act (later called as the JJS Act 2012) is potentially effective in dealing with a child in conflict with the law because it recognizes that the best interest of the child should come first in dealing with a child committing crime.
Restorative justice goals are to empower victims, communities, offenders and families to restore the effects of a harmful event, using effective remorse ceremony.6 Few aspects of restorative justice has been legislated in the existing Indonesian laws, namely; the Child Protection Act Number 23, 2002 stipulating that criminal 2 Tony F. Marshall, Restorative Justice: An Overview.
(London: Home Office, 1999), pp.
5 3 Nicole Ashby and Cathrine Neilsen-Hewett, ‘Approaches to conflict and conflict resolution in toddler relationships’ (2012) 10(2) Journal of Early 145, 147.
4 Cristina A. Palma, ‘Conflict resolution in community development: Are the benefits worth the costs?’ (n.d.) Critical Social Policy 1, 3.
5 Allison Ballard and Patricia Easteal, courts are the last resort for handling juvenile delinquency which is in accordance with the United Nations Convention on the Rights of the Child and the Human Rights Act Number 39, 1999 wording that trial of courts is the least choice in dealing with a juvenile offender.7 Presently, the most important law in regard with the juvenile criminal justice system is the JJS Act 2012, which has changed the Indonesian legal system dealing with juvenile offenders progressively.8 Article 1 (1) and (2) of the JJS Act 2012 provides that: Juvenile Justice System is a whole juvenile justice process, which is started from pre-investigation to post correctional service stages, and the scope of this Act is not only a child in conflict with the law (a child who commit crime) but also a child as a witness and a victim.
In regard with the definition of restorative justice in the JJS Act 2012, Article 1(6) states that: Restorative justice is a crime settlement by involving, victims, offender or victim families, and other relevant parties to solve a case justly by focusing on rehabilitative approach and to avoid revenge.
In the explanation of the Act, it provides that the restorative justice is a part of diversion process in which all parties get involved in a particular crime cooperatively solve a case and create an obligation to put things better by involving victims, child, ‘(Alternative) Dispute Resolution and Workplace Bullying, Some pros and cons from the coalface’ (2016) 41(2) Alternative Law Journal 105, 105.
6 Fathillah A. Syukur, Dale M. Bagshaw, ‘VictimOffender Mediation with Youth Offenders in Indonesia’ (2015) 32 (4) Conflict Resolution Quarterly 390, 393.
7 Ibid.
8 Ibid, 391 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... | 159 community in order to find solution to restore, reconcile peacefully which is not based on revenge.
Article 1 (2) of the Government Regulation of Republic Indonesia Number 65, 2015 on the Guidance of Diversion Implementation and Action towards a Child under 12 Years Old defines restorative justice as a process to solve a crime by involving an offender, a victim, families of a child and a victim and other related parties to collectively solve a crime fairly by focusing on restoring, and not a revenge.
The definitions provided by both the JJS Act 2012 and the Government Regulation of Republic Indonesia Number 65, 2015 on the Guidance of Diversion Implementation and Action towards a Child under 12 Years Old seems not complete yet because it has not included how to deal with the aftermath of the offence and its implications for the future as what has been proposed by Marshall above.
This paper is going to examine restorative justice for juvenile offenders in Indonesia based on the JJS Act 2012 and other related laws and to provide a brief of the implementation of restorative justice in Indonesia that is integrally enforced in Indonesian criminal justice system dealing with a child in conflict with the law.
II.
LEGAL MATERIALS AND METHODS This research employs a doctrinal research.
The term of doctrinal used here is to refer to “legal concepts and principles of all types cases, statutes, rules”.9 Doctrine has been described “as a synthesis of rules, principles, norms, interpretive guidelines and values”.10 Doctrinal research is also referred 9 Terrry Hutchinson and Nigel Duncan, ‘Defining and Describing What We Do: Doctrinal Legal Research’ (2012) 17(1) Deakin Law Review 83, 84.
10 Ibid.
to as pure legal research, which is essentially a library-based study meaning that the materials needed by a researcher may be available in libraries, archives and other databases.11 The research will fundamentally involve the critical analysis of material from both primary and secondary sources.
Primary sources comprise legislation, regulations and rules, conventions, treaties and cases.
Apart from primary sources, secondary sources comprise textbooks, journal articles, legal encyclopedias, seminar papers, newspapers and official websites.
These will be referred in order to update law development, recent issues, academic discussion, data and other relevant information and knowledge on this subject III.
RESULT AND DISCUSSION Restorative Justice in the Juvenile Justice System Act 2012 Article 5 (1) of the JJS Act 2012 states that juvenile justice system must prioritize restorative justice approach.
The approach is very essential for the diversion process.
It can be seen from Article 8 of the JJS Act 2012 providing that: The diversion process is conducted through a meeting to involve juvenile offenders and or their parents or guardians, victims and or their parents or guardians, probation officers and professional social workers by the approach of restorative justice, and it must be made in all criminal proceeding stages of juvenile cases, from investigation to trial stages, the provision is clearly stating that the 11 Anwarul Yaqin, Legal Research and Writing, (Malaysia, Malayan Law Journal SDN BHD.
2007), pp.
10 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 160 | Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... diversion process must be done by the restorative justice approach.
In response to the diversion in the JJS Act 2012, the Indonesian Government has enacted the Government Regulation of Republic Indonesia Number 65, 2015 on the Guidance of Diversion Implementation and Action towards a Child under 12 Years Old.
Article 5 (2) of the Government Regulation states that if it is necessary the diversion process might involve social welfare workers and or community.
In addition, the Indonesian Supreme Court responds the implementation of the JJS Act 2012 by issuing its Regulation Number 4, 2014 on the Guidance of Diversion Implementation in Juvenile Justice System.
It has incorporated the need of restorative juvenile justice approach in holding diversion towards juveniles in Indonesia.
Article 1 (1) of the Regulation provides that diversion conferencing is a meeting among parties of juvenile and the parents/guardian, victim and/or the parents/guardian, probation officers, professional social worker, representatives of communities and other parties having interest in this case in order to reach diversion through restorative justice approach.
Ferry Fathurokhman views that from the Indonesia’s legal culture, the restorative justice approach is basically similar to musyawarah.12 In addition, John Braithwaite In addition, has explored gotong royong (joint bearing of burdens), as an Indonesian 12 Ferry Fathurokhman, ‘The necessity of restorative justice on juvenile delinquency in Indonesia, lessons learned from the Raju and AAL cases’ (2013) 17 Procedia Environmental Sciences 967, 973.
13 John Braithwaite, ‘Traditional Justice’.
In Llewellyn, J. J.
& Philpott, D.
(eds.
), Restorative Justice, Reconciliation and Peacebuilding (New York, United States of America: Oxford University Press, 2014) 214, 239.
14 Fathurokhman, F., above n 12, 971. philosophy should be applied in restorative justice and reconciliation processes.
13 Moreover, Ferry Fathurokhman also claims mufakat as the outcome of the musyawarah process and the collective agreement.
14 Furthermore, Indonesian are keenly to participate in the case of a child in conflict with the law through restorative justice.15 As restorative justice processes intrinsically resemble to musyawarah in Indonesia’s legal tradition, as what has been claimed by Ferry Fathurokhman above, it has become a tool in settling the diversion in Indonesian JJS Act 2012.
It is clearly worded in Article 8 of the JJS Act 2012 which states that the diversion process is conducted through a meeting to involve juvenile offenders and or their parents or guardians, victims and or their parents or guardians, probation officers and professional social workers by the approach of restorative justice, and it must be made in all criminal proceeding stages of juvenile cases, from investigation to trial stages, the provision is clearly stating that the diversion process must be done by the restorative justice approach.
In addition, Article 8 (2) of the JJS Act 2012 allows the involvement social welfare workers and or community in the diversion processes if it is needed.
16 This Article is similar to Article 5 (2) of the Government Regulation of Republic Indonesia Number 65, 2015 on the Guidance of Diversion Implementation and Action towards a Child under 12 Years Old.
It means presently that 15 Nur Rochaeti and Pujiyono Pujiyono, ‘The Implementation Study of Restorative Justice for Juvenile Criminal Justice System by Customary Court in Mainland Sulawesi’ (2018) 156 Proceedings of Earth and Environmental Science, IOP Conference Series IOP Publishing 1, 4.
16 Article 5 (2) of the Government Regulation of Republic Indonesia Number 65, 2015 on the Guidance of Diversion Implementation and Action towards a Child under 12 Years Old Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... | 161 the participation of social welfare workers and or community in the diversion processes is not compulsory.
Moreover, due to the fact that restorative justice is a key in implementing the diversion, Article 8 (3) of the JJS Act 2012 provides the basic values of restorative juvenile justice.
These are namely; victim’s interest, the welfare and responsibility of juvenile offender, non-stigmatization towards the offender, non-revenge, community harmony, properness, humility and public safety.
Furthermore, Article 9 (1) of the JJS Act 2012 provides that in the diversion process police, a prosecutor and a judge have to consider a crime category, child’s age, a probation officer report and the support from the family.
Article 9 (2) of the Act clearly states that only a victim and or victim’s family must agree to the diversion outcomes and the juvenile and the juvenile’s family must agree with the outcomes.
It is clear that encounter conception, as has been proposed by Johnstone and Van Ness, 17 in the Indonesian JJS Act 2012 is not recognized in regards with reaching the diversion decision.
The possibility of involvement of other parties who are outside of a child and a victim of a crime and their families and formal law enforcers in the diversion process, is only when it is considered necessary, it is not obligatory.
However, the consent aforementioned might be ignored by police if a crime is not serious or misdemeanor, a crime is without 17 Johnstone, G. & Van Ness, D.W., ‘The Meaning of Restorative Justice’ In G. Johnstone & D.W. Van Ness (Eds.
), Handbook of Restorative Justice, (Oregon USA: Willan Publishing, 2007) 5, 23.
18 Art.
9 (2) of the JJS Act 2012 19 Art 10 (1) of the JJS Act 2012 20 Johnstone, G. & Van Ness, D.W. above n 17, 17 21 Rusmilawati Windari and Ermania Widjajanti, ‘The double track system in sentencing juvenile the victim, and the amount of the victim’s lost is not more than the regional minimum wage.18 The police might involve a child and a victim of a crime and their families, probation officer and community leaders.
19 Article 93 (d) of the JJS Act 2012 regulates the participation of community in solving a juvenile case in the process of diversion and restorative justice.
In regard with reparative conception, as one of the concepts offered by Johnstone and Van Ness,20 Article 10 of the JJS Act 2012 provides that the outcomes of the diversion might be financial restoration of a victim, medical and psychosocial rehabilitation, returning offenders to their parents or guardians, involving offenders in education or training program at educational institution or Special Institution for Children Treatment (LPKS) or community service for a maximum of three months.
In addition, the JJS Act 2012’s sentencing system is a double track system because it has sentences and treatment or action.21 One of the treatments in Article 82 (1) is restoring criminal losses as the sign of restorative justice in the treatment sanction of the JJS Act 2012.22 2.
The Implementation of Restorative Juvenile Justice in Indonesia The JJS Act 2012 has clearly stated that restorative justice is a key in implementing diversion, which is aiming at conducting a restorative approach between the child and a victim of crime.23 However, a juvenile is not eligible to be put into the diversion process if offenders in Indonesia: Strengths and weaknesses of the Juvenile Criminal Justice System Act 2012’ (2015) 23(3) IIUM Law Journal, 501, 524.
22 Ibid, 512 23 Putri K. Amanda, ‘Juvenile Sex Offender Rehabilitation: How the Us Approach Can Help Indonesia Satisfy Its Commitment To Restorative Justice Principles’ (2014) 4 Indonesia Law Review 86, 93.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 162 | Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... a child commits a crime with charge of 7 (seven) years of imprisonment and the status of the offender is not a recidivist.24 Thus, a child committing a serious offense, such as sexual offenses is not going to be diverted as because the maximum imprisonment for these violations is between 12 (twelve) and 15 (fifteen) years.25 It seems that restorative justice is likely to be successful if a juvenile case is successful to be diverted.
It can be said that the success of restorative justice approach seems to be mostly depended on succeeded diversion process which can be found in Article 1(6) of the JJS Act 2012 and its explanation which provides that the restorative justice is a part of diversion process in which all parties get involved in a particular crime cooperatively solve a case and create an obligation to put things better by involving victims, child, community in order to find solution to restore, reconcile peacefully, not revenge.
However, the JJS Act 2012 does not limit the implementation of restorative justice only along with the diversion process in which must be attempted in the levels of police investigation, prosecution and trial.
Article 5 (2) (c) It has clearly mentioned that the approach of restorative justice in Indonesian juvenile justice system must be a priority including in the levels of guidance, monitoring, and/or education during serving a sentence or action and after serving a sentence or action.
In other words, restorative justice approach in the JJS Act 2012 might still possible to be implemented when a juvenile 24 Ibid, 94 25 Ibid, 94 26 Y. T. Wangi, ‘Policy of Development for Juvenile Delinquency in the Perspective of Indonesian Criminal Justice System Reform (Study on Institute for Special Development Children LPKA Kutoarjo, Central Java, Indonesia)’ (2017) 2, JILS 85, 92. serving a sentence or action if diversion attempts by police, a prosecutor and a judge failed.
In addition, the approach is not going to be void if the attempt of diversion process fails.
It can be seen that the JJS Act 2012 aims at restoring or trying to put things right from investigation level to post-sentencing of a juvenile.
Indonesian juvenile criminal justice system is seen as the non-separated system from the level of police investigation to the enforcement of the juvenile court decision.26 The diversion aims which are in line with restorative justice approach namely to reach a peace between a victim and a juvenile, to encourage community to participate and to avail the awareness of responsibility towards a juvenile are still possible to be implemented when a convicted juvenile serving a sentence or an action.27 As restorative justice approach becomes a key in implementing a diversion process at the levels of investigation, prosecution and trial, the compulsory diversion effort at each level of juvenile criminal investigation is very essential.
It means that every responsible officer in every stage of those criminal proceedings must seek diversion agreement.
28 The JJS Act 2012 has limited the police and the prosecutor to complete diversion effort within 7 (seven) days since they receive a dossier of the juvenile offender.
29 Surprisingly, both the JJS Act 2012 and the Supreme Court Regulation Number 4, 2014 do not provided the limit of a diversion effort process limit for a juvenile court.
Nevertheless, it has been ruled in Article 51 27 Art.
6 the JJS Act 2012 28 Loura Hardjaloka, ‘Criminal Justice system of Children: an overview Restorative Justice Concept in Indonesia and Other Countries’ (2015) 15(1) Jurnal Dinamika Hukum 73, 76.
29 Arts.
29 (1), 42 (1) of the JJS Act 2012 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... | 163 (1) of the Government Regulation of Republic Indonesia Number 65, 2015 on the Guidance of Diversion Implementation and Action towards a Child under 12 Years Old which states that the effort must be completed within 30 (thirty) days since a court begins the effort.
In practice, either in investigation, prosecution, or trial level, the diversion effort is conducted no more than twice.30 Source: Loura Hardjaloka, 2015.
Despite the fact that Indonesia has already incorporated restorative justice approach in its JJS Act 2012, the implementation of restorative juvenile justice in Indonesia still shows poor performance.31 It can be seen from the percentage of juvenile offenders that have been imprisoned is still high with about 90%.32 In addition, there is also the finding that despite restorative justice and diversion have been incorporated in the JJS Act 2012, the Juvenile Court still considers that imprisonment is the merely option for the boys.33 However, some claim that the customary court existence is still believed that implementing of restorative 30 I. Karangan, ‘Implementation of Law Number 11 of 2012 Concerning Child Related Criminal Justice System Concept Restorative Justice’ (2016) 1(1) Pattimura Law Journal 67, 74.
31 Abdul Syukur, F., Bagshaw, D.M., above n 6, 396 32 Ibid.
33 Sharyn G. Davies, and Jazz Robson, ‘Juvenile (In) justice: Children in Conflict with the Law in Indonesia’ (2016) 17 Asia-Pacific Journal On justice approach has been familiar with the people.34 It has been claimed that the JJS Act 2012 has provided a legal basis for implementing victim-offender mediation (VOM) as a form of restorative justice approach in handling juvenile offenders.
35 VOM as one of the restorative justice models discuses and resolves the offence by focusing on condemning the act not the offender.
36 The discussion may lead to offender or family or friends to experience the shame of the act and prompting apology to victim.37 In the JJS Act 2012, VOM can be said as one form of the diversion processes that Human Rights and the Law 119, doi 10.1163/15718158-01701009, 146.
34 Nur Rochaeti and Pujiyono Pujiyono.
Above n 15, 3.
35 Ibid, 392 36 Norbani Mohamed Nazeri, Restorative Justice: Definition and Concept [Lecture Power Point Slide] (2018).
37 Ibid.
Criminal Justice System of Children: An Overview Restorative Justice Concept... 77 Figure 2.
Diversion Process under Law 11/2012 Source: Processed Under Law 11/2012 The SPPA Concept of Restorative Justice in Other Countries The SPPA concept of restorative justice in Indonesia also set up in other countries like Illinois, Germany, Canada, Austria, Poland, and Spain.
As for the age limit for children who are dealing with the law in those countries is as follows: Table 5: Limitation Age of Children dealing with Law in Other Country Age (Years) Country 14-18 Germany, Austria 10-16 Illionois, United States 12-18 Canada 16-18 Spain 15-17 Poland Source: Processed from Several Sources The SPPA Concept of Restorative Justice in Illinois, United States Provisions of the SPPA in Illinois, the United States set in the Illinois Juvenile Court Act of 1987 which amended through the Juvenile Justice Reform Provisions of 1998.
As for such a significant change is the adoption of restorative justice or negotiations (balanced or restorative 12 Korey Wahwassuck, “The New Face of Justice: Joint Tribal-State Jurisdiction”, Juvenile and Family Court Journal, Vol.
60 No.
1st December 2009, page 15.
13 Erna Olafson dan Julie Kenniston, “Obtaining Information From Children In the Justice System”, Juvenile and justice orientation).
The implementation of restorative justice through versioned also applied in 17 areas in Illinois but not yet in the entire region.12 The implementation of the principle of balanced and restorative justice seeks to balance all the affected parties of any crimes committed by children, as victims, perpetrators, and communities.
The purpose of the concept of restorative justice or negotiations (balanced or restorative justice orientation) is as follows in Table 6.13 The Prosecutor in children’s condemnation will provide the opportunity for the defendant to undergo a program of restorative justice through the system are versioned.
As for restorative justice programs through the diversion system offered in Illinois, among other community mediation panels, negotiations between the victim and offender, social services programs, restitution, and other programs that can provide opportunities for children to be responsible for his actions at once aimed at rehabilitation and restoration without the need through the judiciary.14 Community mediation panels Family Court Journal, Vol.
59 No.
4th November 2008, page 80.
14 Illinois Criminal Justice Commission, 2012, Policies and Procedures of The Illinois Juvenile Justice System, Chicago: Illinois Criminal Justice Information Authority, page 10-12.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 164 | Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... must be held either by police, prosecution office or court if the case is eligible for being diverted.
Thus, each officer in every criminal process level above is responsible for being a mediator.
Diversion processes do not only hold a meeting to involve juvenile offenders and victims but also involve guardians, probation officers and professional social workers by the approach of restorative justice.
However, the JJS Act 2012 is not clear about who should be a mediator in every criminal process level as the Act only stipulates the criteria that must be fulfilled by those officers in dealing with juvenile offenders.
38 In addition, it seems that a mediation process only can be held in the court because the court has a special room for conducting mediation.39 Interestingly, in regard with VOM issue, the Indonesian judicial administration system in dealing with juvenile offenders is one step more advanced than criminal administration processes at the police and the prosecution office levels.
It results from the issuance of the Indonesian Supreme Court Regulation Number 4, 2014 on the Guidance of Diversion Implementation in Juvenile Justice System by the Indonesian Supreme Court.
The mediator is known as facilitator who is appointed by the General Court in Chief having an authority too handle a juvenile case.40 VOM is conducted after the trial starts by conveying the basic of VOM as a tool of restorative justice aiming to restore the relationship between the parties 41 Before commencing the VOM, the mediator and the parties should establish that all required 38 Arts.
26, 41, 43 of the JJS Act 2012 39 Art.
52 (4) of the JJS Act 2012 40 Art.
1 (2) the Indonesian Supreme Court Regulation Number 4, 2014 41 Fatahillah A. Syukur and Dale M. Bagshaw, above n 6, 401 information must be shared in the meeting; everyone must not interrupt, accuse, insult other parties when they are talking; and each party must control any strong and negative emotion.
42 In addition, the nature of the VOM is the repentance from an offender to a victim.43 The following is the case study of jewelry stealing involving a youth offender, which is solved through VOM.
The offender is a sixteen-year-old boy living with his parents.
He is the couples’ only child.
The family is poor, and the parents work all day to fulfill their basic needs.
The father is a fisherman and the mother is a housemaid.
The family can only provide once meal a day and the juvenile offender quit his education due to economic condition.44 The offender is looking for some money to buy his birthday by stealing jewelry from his wealthy neighbor resulting in the offender being arrested for larceny.
Based on Indonesian criminal law, stealing can be maximally sentenced to five years of imprisonment.
As the perpetrator is a child, he can only be sentenced maximally half of adult’s maximum charge.
The police and the prosecutor convince the victim to forgive the offender because he is a first time offender.
However, the victim disagrees with this because his property has been stolen, and the offender is the suspect.
The case is tried before to the district court.45 On the first day of trial, the offender made plea guilty to the stealing and he asked for forgiveness from the judges’ chamber, as it is his first commission.
In addition, the offender regretted what he had done and 42 Ibid.
43 Ibid.
44 Ibid, 403 45 Ibid,404 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... | 165 promised that he would not repeat another crime.
Moreover, He wished to continue his education and to have a better future.
Having listened to his plea and considered the JJS Act 2012 allowing a conditional sentence without prison serving, the judges’ chamber convinced the parties, the plaintiff, and the defendant to get involved in a victimoffender mediation process.
The victim, who initially disagrees with this, agrees to take up this offer after being persuaded by some prominent leaders in the community, who vouched that the offender had never conducted any previous offenses.46 The VOM is conducted in the mediation room and presented by the chief of the judges’ chamber (acting as mediator), the probation officer, the prosecutor, the plaintiff, the defendant, the defendant’s parents, and a leader of community.
The mediator commenced the process by asking everybody to pray together before conveying the goals of the mediation and establishing some fundamental rules with both parties.
47 It provides victim an opportunity to tell the case first and wished that his farm and property were safe followed by the offender’s and his family remorse and promise not to reoffend the crime.
The probation officer suggesting him to be returned to his family supports his plea.
The parents promised that they would pay more attention with him and monitor his activities.
The community leader urged everybody to keep harmony in society and protect the offender’s future.
He promised to keep society peace together with other village leaders as well as he asked the victim to contribute.48 The parties were able to come to an agreement.
The victim accepted the apology and said that he expected the 46 Ibid, 404 47 Ibid.
48 Ibid.
49 Ibid, 405 offender’s parents to pay more attention on the offender’s behavior.
The mediator took this agreement in making consideration to the judicial chamber for their final decision.
They concluded to release the offender and to return him to his parents, to order supervision from a probation officer until he becomes adult, and to order him to return the jewelry that he stole.”49 This case demonstrates that it is essential to have an open legal apparatus caring about the future of juvenile offenders who concede he is guilty of committing crime.
All of the law enforcers and the probation officer concerned to the case background of the case and suggested a restorative justice approach in settling the case harmoniously.
The offense type, the offender age and prior criminal record, harm it caused, the plea of the offender, offender’s repentance, and probationary reports and recommendation are the criteria that are considered before the VOM to be held.50 In addition, the community’s role is very essential in the implementation of restorative justice, and it will be unsuccessful without such role.51 The last sentence of the juvenile case story solved through VOM above that “They decided to release the offender from prison back to his parents, ordered supervision from a penitentiary officer until he reached adult age, and ordered him to return the stolen jewelry” means that the case was settled by using the JJS Act 2012 in which the supervision has been incorporated in the Act.52 In addition, in this case, the offender is also ordered to return the stolen jewelry, in which the JJS Act 2012 also has ruled this 50 Ibid.
51 Nur Rochaeti and Pujiyono Pujiyono, above n 15, 3.
52 Art.
71 (b) point 3 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 166 | Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... kind of VOM outcome.53 Moreover, despite in this case the juvenile offender is not obliged to perform “Kewajiban Adat” or customary obligation, the JJS Act 2012 surprisingly has also incorporated this obligatory Adat fulfillment.54 It can be concluded that the JJS Act 2012 has accommodated the important values of restorative justice approach based on the cultural values living among Indonesian people that is musyawarah which is prioritizes the values of voluntariness, truth telling, a-face-to-face encounter, restoring the harm caused by the crime and repentance.
Having these traditional values acknowledged by the JJS Act 2012 it can be said the JJS Act 2012 is in accordance with the Indonesian traditional values.
Despite the fact that Indonesia is the multi-ethnicities country, imposing restitution in the form of restoration has been a part of restorative justice approach in the country because restorative justice sees the main victim is not the state, but it is the individual which then results in the offender being responsible to put things right which is one of these is restoration toward a victim.55 There is the fact that the successfulness of the restorative justice implementation as the juvenile criminal justice system in Indonesia based on the JJS Act 2012 strongly depends on whether the community still keeps their traditional values or not.
The study on certain areas in Indonesia that the communities still preserve their customary laws shows that the implementation of restorative juvenile justice of the JJS Act 53 Art.
71 (2) verse a 54 Art.
71 (2) verse b 55 Nur Rochaeti, ‘Legal Culture of Restorative Justice in Juvenile Criminal Justice System in Indonesia’ (2016) 84 Proceedings of Advances in Social Science, Education and Humanities Research International Conference on Ethics in Governance (ICONEG), Atlantis Press.
2012 has been successful.
56 Nevertheless, another study also shows that restorative juvenile justice in the JJS Act 2012 has not been optimally implemented in certain area, for instance in Medan municipality, due to a variety of ethnic which has its own characteristics and social bound in the group.57 In Aceh adat has “a perceived legitimacy that was potentially useful in a post-conflict environment”.
58 However, nowadays, for certain area in Indonesia such as Aceh, it seems there are no consistency between the society belief in customary law or adat and the successfulness of restorative juvenile justice implementation based on the JJS Act 2012.
It is evidenced by the report of probation officer at the Probation Office of the Branch of the Ministry of Law and Human Right Banda Aceh provided details on an email and we acted based on that information.
It reveals that from 2016 to 2016 the total numbers of probation reports’ demands to divert juvenile offenders are 412.
In fact, only 165 of juvenile offenders’ cases are successful to be diverted.
It means that a perceived customary law or adat might ease to implement restorative juvenile justice is not always true.
It seems that there are also other aspects might have influence on the implementation of restorative justice for juvenile offenders in regard with the JJS Act 2012, such as the paucity of probation officers and uncommon perception among law enforcers.
Aside from holding the VOM as a part of restorative justice process in the trial 56 Rochaeti, N., Pujiyono, P., above n 15, 6.
57 Rochaeti, N., above n 55 58 Cynthia M. Horne, ‘Reconstructing ‘traditional’justice from the outside in: Transitional justice in Aceh and East Timor’ (2014) 9(2) Journal of Peacebuilding & Development 17, 23.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Jufri, Nazeri, Dhanapal Restorative Justice: an Alternative Process for Solving Juvenile Crimes... | 167 process of the Juvenile Court in Indonesia, the JJS Act 2012 also provides the Community Service Order as one of the conditional sentences, which is under the category of the main criminal sanction.
59 This kind of punishment is unprecedented in the sorts of criminal sanction in Indonesia.
Community Service is deemed as one of the restorative justice programs as the principle under the community service is to reintegrate the offenders back to community.60 However, this kind of punishment is not preferable for the court to decide.
It seems that there has not been clear procedure made yet in regard with implementing such punishment.
IV.
CONCLUSION AND SUGGESTION To conclude, unprecedentedly, restorative juvenile justice has been a part of the Indonesian criminal justice system, which is legislated in the JJS Act 2012 as juvenile criminal justice system act.
The JJS Act 2012 has incorporated restorative justice as a key in implementing diversion; this is an obligatory effort to be conducted by the law enforcers of the JJS Act 2012.
However, to divert a juvenile offender must be fulfilled two criteria namely, the crime is charged with imprisonment below 7 (seven) years and the offender is not a recidivist.
The implementation of restorative juvenile justice of the JJS Act 2012 in Indonesia begins from police to trial before the court in terms of its application under diversion process, and as well as it may extend to post-sentencing.
VOM as one of its models has been a familiar process for Indonesian because VOM has embedded the Indonesian values of musyawarah, mufakat and gotong royong.
The values have been 59 Art.
71 (1) b (2) of the JJS Act 2012 60 Azman, A., and Mohammad, M. T., Crime Victims Support System and Restorative Justice: Possible living as Indonesian culture, as customs or Adat, before the implementation of the JJS Act 2012.
However, in this modern era, the way of the people thinks about these values might change that results in not all Indonesian agree with the approach of restorative justice for juvenile offenders.
Some consider that it results from weak customary law influences in the society and social bonds.
Restoring harms affected by juvenile offenders might be going smoothly in the community with prevailing to use local wisdom values although it might not happen if there are paucity of law enforcers and their uncommon views on this approach.
Community service, which has been worded in the JJS Act 2012 and considered to be one of the means of restorative justice approach, has not shown substantial contribution towards the victims, offenders and the community so far.
Further research is needed in terms of evaluating the JJS Act 2012 provision of providing restorative justice based on the based models of its implementation such as New Zealand model which is renowned as one of the best modern restorative justice models.
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DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.09 | 115 Development of Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court Uswatun Hasanaha, Mohammad Amir Hamzahb, Indien Winarwatic a Faculty of Law, University of Trunojoyo Madura Email: uswatun.hasanah@trunojoyo.ac.id b Faculty of Law, University of Trunojoyo Madura Email: amhamz@gmail.com c Faculty of Law, University of Trunojoyo Madura Email: indien_w@yahoo.com Submitted : 2018-12-12 | Accepted : 2019-03-25 Abstract: Madurese community prefer to settle civil disputes outside the court by generating peace between the parties in the form of undertable bond, while the mediation results outside the court, the legality is weak.
In this regard, this study would like to produce model of non-litigation civil dispute settlement that guarantees binding force of settlement so have binding strength as well as dispute settlement through mediators in court.
This research is normative-qualitative research, so the method is combination of legal research methods and sociological research methods.
The study results indicate that the mechanism to settle civil disputes in Madura is carried out peacefully through consensus meetings with the mediators help.
The mediation has the binding power of customary law because it is based on the voluntary willingness of the parties, carried out through deliberation.
This is in line with the local wisdom values such as the value of maintaining "shame" and the value of respect for parents, ulama (Keyae), and leader.
Institutionalization of civil disputes settlement in Madurese community through conducted certification to mediator’s village, legitimized by regional regulation, and accommodates the law in society because the law applies in accordance with the sense of justice of the community.
Keywords: civil disputes settlement; local wisdom of madurese community; mediation I.
INTRODUCTION Cases accumulation is logical consequence of the many civil disputes 1 The accumulation of cases in state courts, excessive work load of judges and law enforcers, and corruption of judicial bodies has proven the limited performance of the state in providing legal submitted to the court because, judicially the Civil Procedure Code (HIR) itself does not limit when a civil dispute must be settled.
1 and justice services.
See Sulistyawati Irianto, “Menuju Pembangunan Hukum Pro-Keadilan rakyat dan Perempuan” in Antonius Cahyadi and Dony Danardono (ed).
Sosiologi Hukum dalam mailto:uswatun.hasanah@trunojoyo.ac.id mailto:amhamz@gmail.com mailto:indien_w@yahoo.com Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 116 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... As result, to settle civil disputes through court need much time, effort, and costs.
Therefore, dispute settlement through non-litigation procedure is an alternative to civil dispute settlement because, the basis of non-litigation dispute settlement is a win-win solution that prioritizes the justice principle for the parties.
However, Law Number 30 of 1999 on Arbitration and Alternative Dispute Settlement did not set out clear about the process and outcome legality of mediation out of court.
Though, it is not infrequently the peace results between the parties were carried out undertable bond.
As the Madurese community did in dealing with disputes, they prefer dispute settlement peacefully based on local wisdom that is settled through the village chief.
However, when it comes to disputes that have to do with religion, they generally ask Keyae for advice.
Hence, Keyae is mediator in settling disputes related to disputes that have to do with religion such as marriage, inheritance, grants, and so on.
The figure of ghuru (Keyae) for the Madurese community is role model as well as reference for all matters relating to morality and religious aspects.
Given the importance of dispute settlement as the basis for legal certainty creation and justice, it needs regulations that empower the non-litigation civil disputes settlement based on local wisdom.
The substance should contain matters related to non-litigation civil disputes settlement out of court.
For this reason, the purpose of this study is to create the policy about nonlitigation civil dispute settlement model that guarantees the binding force of the nonPerubahan (Jakarta: Yayasan Pustaka Obor Indonesia, 2009) p.7,8 2 Undang-undang Republik Indonesia Nomor 30 Tahun 1999 tentang Arbitrase dan Alternatif Penyelesaian Sengketa.
litigation civil dispute settlement results because it fits the sense of justice of community so that it can reduce the accumulation of cases in court.
With the model development through the institutionalization of local wisdom-based non-litigation dispute settlement that has binding power because, it is in accordance with the sense of community justice, accumulation of cases in court can be reduced as implementation of the principle of “just delayed is just denied”.
II.
LEGAL MATERIALS AND METHODS This research is normative-qualitative research, so the design and method are combination of legal research methods and sociological research methods.
The legal perspective appears in the legislation analyses in the field of settling non-litigation civil disputes, that is Law Number 30 Year 1999 2 , Law Number 6 of 2014 3 , and Law Number 12 of 20114.
In sociological perspective, the analysis is directed at matters relating to the formation of non-litigation civil dispute settlement models.
Data collection techniques were carried out through in-depth interviews with parties who had disputed and chose mediation outside the court, village chiefs and Keyae who had been mediators in settling non-litigation civil disputes in Madura (Bangkalan, Sampang, Pamekasan, Sumenep), conduct Focus Group Discussions on April – Nopember 2018.
FGD is conducted by researchers with community leaders and government officials in order to discuss about the non-litigation 3 Undangundang Republik Indonesia Nomor 6 Tahun 2014 tentang Desa.
4 Undang-Undang Republik Indonesia Nomor 12 Tahun 2011 tentang Pembentukan Peraturan Perundang-undangan.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... | 117 civil dispute settlement model based on madurese local wisdom to examine force of binding local-wisdom based mediation.
Furthermore, the data obtained is analyzed to produce non-litigation civil dispute settlement model that has binding strength as dispute settlement through mediator in court.
III.
RESULT AND DISCUSSION Mechanism for Settling Non-Litigation Civil Disputes in Madurese Communities For Madurese who still follow their customary law, dispute settlement using customary law is felt could fulfill the sense of justice.
This is because, customary law in addition to reflecting the people mentality, customary law is also manifestation of community values that accommodate the community and individual interests, including the disputed parties.
In the inheritance context that happened to the Madurese community, in general it was not carried out through the court but was settled by deliberation by the heirs5.
From various civil cases that have entered the district court over the past 5 (five) years (2012-2016) this shows that, inheritance cases are cases that are rarely submitted to court.
Likewise, data on inheritance cases in religious courts show the lowest ranking compared to divorce and polygamy cases.
Data from all Religious Court in Madura over the past 5 (five) years 5 Uswatun Hasanah and Et Al, ‘Pluralisme Hukum Dalam Penyelesaian Sengketa Warisan Pada Masyarakat Madura’ (2018) 11(1), Arena Hukum, 168 6 Primary data was compiled, 2018.
Research findings of Fransz and Keebet von Benda Beckmann, that 80 percent of the decisions of district court judges in West Sumatra contained customary law, see Sulistyowati Irianto, Pluralisme Hukum di Indonesia dan Di Berbagai Negara Dalam Era Globalisasi (Jakarta : BPHN, 2007), 4,5 (2012-2016) concerning the number of cases, there are 3 inheritance cases from 7980 cases entered in Bangkalan Religious Court, there are 2 inheritance cases from 7223 cases entered in Sampang Religious Court, there were 7 inheritance cases from 8988 cases that were included in Pamekasan Religious Court, there were 8 inheritance cases out of 9369 cases that entered Sumenep Religious Court.6 The customary law is synonymous with traditional communities because empirically the customary law is community that still traditional.7 In humanity, there are many other legal reviews that more work harmonically rooted in the culture of law community that is attached to the law of religion, custom, and other social deal.8 This traditional nature has been recognized by the 1945 Constitution of the Republic of Indonesia, specifically Paragraph (2), which affirms that "the State recognizes and respects customary law units along with their traditional rights as long as they are alive and in accordance with community development and principles the Unitary State of the Republic of Indonesia, which is regulated in law ".9 A village or legal alliance is headed by tribal chief or village chief (kepala desa).
According to the customary law, the tribal chief is commissioned to maintain the life of law in their tribe or community, keeping the law to work properly.
Moreover, if there is a dispute between residents, the 7 Dominikus Rato, ‘Revitalisasi Peradilan Adat Pada Masyarakat Ngada Berbasis Kearifan Lokal’ ( 2015) 92(May-August), Yustisia, 60 8 Franz von Benda-Beckmann, Changing Legal Pluralism in Indonesia, VIth International Symposium Commission on Folk Law and Legal Pluralism, Ottawa (1990), 200 9 If it is not possible to refer to it as law because it does not fulfill the formal legal attributes in the perspective of a general flow, then let us name non-state law as hybrid law or unnamed law.
See Franz von Benda-Beckmann, above n 5 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 118 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... community could bring the dispute to the village chief.
Generally, the use of deliberation in settling disputes in the Madurese community involves third parties as mediators.
The mediator function is important in the mediation process, for which the mediator must identify various causes of the occurrence of disputes and make an approach in order to overcome them.
The mediation purpose are : (a) finding alternative solutions to settle the disputes that arise between the parties and it can be accepted by the dispute parties; (b) achieving a better communication between the dispute parties.10 Mediators as external parties or third parties are commissioned to assist the parties in settling disputes so that an agreement can be reached and can be accepted by both parties to settle the dispute.11 Appointment of third party as mediator can occur because of : (a) his own will (nominating himself); (b) appointed by other parties (for example tribe chief); (c) requested by both parties12.
In the Madurese community, the appointment of the third party as a mediator could be because he/she is appointed by the party, or because he/she is requested by both parties.
As in the settlement of inheritance disputes, the mediator is a society figure, the village chief.13 The appointment of village chief or society figure because, they are requested by 10 Valerine JL Kriekhoff, ‘Mediasi : Tinjauan Dari Segi Antropologi Hukum’ in TO Ihromi (ed), Antropologi Hukum Sebagai Bunga Rampai (Jakarta : Obor Indonesia Foundation,1993) 223 11 Chandra Dewi Puspitasari, ‘Alternatif Penyelesaian Sengketa Asuransi Melalui Badan Mediasi Asuransi Indonesia (BMAI)’ (2007) 4(2), Journal Civics 95 12 Valerine JL Kriekhoff, above n 5 13 Village chief who are also religious leaders have received better respect by the Madura community.
In Madura, religion is an organizing principle for both parties, or because they are appointed by another party.
In addition, there are 3 mediators according the typology by Moore.
That are social mediators, authoritative mediators, and independent mediators.
First, social mediators play role in dispute on the basis of social relations existence between mediator and parties in the dispute.
The mediator in this typology, are part of existing or ongoing social relationship.
Authoritative mediators try to help the disputing parties to settle differences between them and have strong or influential positions so that they have the potential or capacity to influence the final outcome of the mediation process.
14 The rationale for the communities to prefer social mediators because the mediator is regarded as a party capable of maintaining the secrets of disputes that occurred between the parties.
15 In Addition, the uniqueness of mediation dispute resolution in Madurese society is the settlement based on the values of local wisdom, namely respect for parents, ulama, and formal leaders16.
In settling inheritance disputes, they will ask help from elder relatives first 17.
In this case, it means that the mediator is selected typology of parties in the dispute.
However, if the elder’s relatives do not succeed, the disputing parties come to the village chief to ask for their dispute to be settled.
In general, the Village chief (Klebun) will not settle the inheritance dispute, but will Madurese, see Kuntowijoyo, Radikalisasi Petani (Yogyakarta: Bentang Intervisi Utama, 1994) 87 14 Titik Fatimah and Hengki Andora, ‘Pola Penyelesaian Sengketa Tanah Ulayat Di Sumatera Barat’ (2015) 4 (1) Jurnal Ilmu Hukum 47 15 Uswatun Hasanah Et Al, above n 2, 177 16 Uswatun Hasanah, Et Al, ‘Penyelesaian Sengketa Tanah Waris Berbasis Kearifan Lokal Masyarakat Madura ‘ (2017) Proceedings of UMM 1066 17 Results of an interview with Sukarman, Petapan Village, Labang Sub-District, Bangkalan Regency, July 5th, 2018 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... | 119 ask for help from ulama (Keyae) to become mediators in settling the inheritance dispute.
This is in line with the results of Yulianti's study that Madurese people put village officials as figures who can be used as mediators when they dispute.18 However, if the dispute faced concerns religious issues such as the distribution of inheritance, the figures involved in settling the dispute are religious leaders.
Motives Madurese for Selection of NonLitigation Civil Dispute Settlement Practice of property inheritance division, generally divided into two kinds done in peace by heirs, be settled through the courts.
For the Madurese community, the inheritance distribution is always done peacefully between the parties.
This is reflection that most Indonesians have tendency to settle disputes in peaceful manner.
Because basically the culture for conciliation or deliberation is widespread community value in Indonesia.
19 This method is recognized as effective in settling disputes or disputes while being able to eliminate feelings of revenge.
20 Thus, it is understood that the Madurese prefer customary law that use the consultation principle in inheritance dispute settlement in order to maintain harmony, maintaining relationships and kinship relation between the parties.21.
This is in accordance with the general mentality of indigenous people who 18 Rina Yulianti and Sri Maharani, ‘Penyelesaian Sengketa Informal Berbasis Komunitas Adat Terpencil di Kepulauan Kangean (Pilihan Hukum dan Posisi Dalam Sistem Hukum Negara)’ (2012) 12 (2) Jurnal Dinamika Hukum 199 19 Arfan Faiz Muhlizi, ‘Bantuan Hukum Melalui Mekanisme Nonlitigasi Sebagai Saluran Penguatan Peradilan Informal Bagi Masyarakat Adat’ (2013) 2(1) Jurnal Rechtsvinding 71 20 Ahmadi Hasan, ‘Penyelesaian Sengketa Melalui Upaya (Non Litigasi) Menurut Peraturan Perundang-Undangan’ (2007) 5 (January – June) Jurnal AL-BANJARI 2,3 have communal characteristics, namely prioritizing common interests rather than their interests.
On the other hand, the lack of understanding of court procedures in the court as well as transportation to distant court locations is technical obstacle for the community to access justice through state law.
Therefore, the lack of understanding of procedural legal procedures in court has implications for the need to be accompanied by lawyer.
The implication is that sense of justice is not necessarily achieved yet but expensive fees must definitely be spent, because of paying attorney’s fees and transportation costs to the court22 .
Based on that, the community uses dispute settlement based on customary law which prioritizes deliberation and peace so that they can maintain harmony, kinship relationship, and can maintain friendship between the parties.
Binding Force of Inheritance Dispute Settlement Mediation in Madurese Community Based on the interview results with Rasyid that the mediation results were written in written form signed or witnessed by the village chief, the essence was manifestation of the inheritance dispute settlement by the parties 23 .
According to Cindawati 24 , volunteerism is constitutive element of the binding power of the mediation results, because the presence of 21 Results of an interview with Zainul, Kemoning Village, Tragah Sub-District, Bangkalan Regency, July 23th, 2018 22 Results of an interview with Jazuli,Sogian Village, Ambunten Sub-District, Sumenep Regency,August 25th, 2018 23 Results of an interview with Rasyid as the Head of Pasongsongan Village, Sumenep Regency, July 28th, 2018 24 Cindawati, ‘Analisis Kekuatan Mengikat Kontrak Sebagai Dasar Yuridis Dalam Bisnis Internasional’ (2016) 9 (3) Arena Hukum 386 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 120 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... unauthorized third party interfering in the mediation contents shows that the mediation results are no different from agreement.
What has been agreed upon by the parties will lead to the binding power for agreement as law.
What someone states in legal relationship becomes law for them.
This is not only moral obligation but also legal obligation that the implementation must be obeyed.25 Dispute settlement through mediation outside the court, pursuant to Article 6 paragraph (1) of the Law Number 30 of 1999 that civil dispute or difference of opinion can be settled by the parties through alternative dispute settlement that is based on good faith to the exclusion of settlement of litigation in the District Court.
Furthermore, the written dispute settlement or difference of opinion agreement is final and binding on the parties to be carried out in good faith and to be registered in the Court of Justice in maximum period of 30 (thirty) days from the signing (Article 6 paragraph (7) of Law Number 30 of 1999.
By looking at these provisions, the dispute settlement agreement outside the court must be written and must be registered with the District Court.
The problem is, these provisions were never implemented by the Madurese community related to the registration obligation to state court on the results of written agreement as the mediation results in village, because Madurese community have habit that they did not want complicated or convoluted matter, they want very practical and fast, moreover, distance and ignorance 25 Ridwan Khairandy, ‘Landasan Filosofis Kekuatan Mengikatnya Kontrak’ (2011) 18 (October) Jurnal Hukum 37 26 Uswatun Hasanah and Et Al.,above n 2, 180 27 Theresia Ngutra,’ Hukum dan Sumber-sumber Hukum’ (2016) 11(2) Jurnal Supremasi 209 of court procedures to cause them reluctant to court so they prefer enough mediation dispute settlement in village-level with the written agreement results known by the village chief.26 Speaking of binding power of legal conditions, the essence is not solely based on compelling forces, in particular in customary law communities, binding power is more driven by reasons of decency or trust .27 As is the case, the binding power of mediation as a dispute settlement in the Madurese community driven more by reasons of decency or trust.
This is related to the mentality of religio-magical indigenous people, who consider that nature consists of parts of each other as one entity, which considers that there is close relationship between humans and their environment so that equilibrium must be maintained through the principle of restitutio in integrum so that peace in the village is maintained 28 .
Klebun (village chief) is village figure who is given the trust by indigenous people to maintain peace in the village.
Based on interviews with Efendi, obtained information that in each there is problem in the village, klebun (village chief) is central to the position because klebun are expected to have ability to settle and according to the provisions, Klebun must settle every problem in their village, because the authority lies in its ability to solve village problems including settling disputes among the village residents29.
Mediation is a means of settling disputes that is in accordance with the 28 Uswatun Hasanah and Et Al, above n 2 , 176 29 Results of an interview with Efendi, Poreh Village, Lenteng Sub-District, Sumenep Regency, August 30th, 2018 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... | 121 mentality of the Madurese community, so that mediation has binding force in traditional manner.
The binding force of mediation as a dispute settlement among Madurese is due to the following: First, the mediation occurrence was due to the voluntary willingness of the parties to settle the dispute through mediation.
Based on the interviews results with Muhammad, that the party whose rights were disrupted usually came to the Village chief to ask for their rights to be restored 30 .
Second, through mediation is relations balance between community members, one with other community members can be maintained.
The Madurese community which is still communal, prioritizes social harmony in every movement, especially related to dispute settlement, if there is dispute it will be settled peacefully, mediated by klebun (village chief) as central figure in Madura custom to maintain peace.
31 This is in line with the opinion of Abbas that the communal as nature of community emphasizes that individuals who are in dispute must try to create social harmony and eliminate disputes 32 .
If he does not try and is not willing to settle the dispute through the mediation path, then the individual gets negative assessment of community; Third, mediation in the Madurese community has binding force because of the existence of local wisdom values that have become the culture of the Madurese community.
Values such as to maintain "todus" (shame or 30 Results of an interview with Muhammad, Binoh Village, Burneh Sub District, Bangkalan Regency.
August 14th, 2018 31 Uswatun Hasanah and Et Al, above n 2, 176 32 Syarizal Abbas, Mediasi Dalam Perspektif Hukum Syariah, Hukum Adat, dan Hukum Nasional, (Jakarta : Kencana Prenada Media Group, 2009), p. 273, 275 humiliated) and the value of respect for bhuppa bhabhu ghuru rato (father, mother, keyae, leader) has become guideline for all actions of Madurese community so that what has become agreement in mediation has binding force for the parties.
Mediation as means of settling disputes, in harmony with the culture of Madurese who maintain "todus" (shame) because bringing dispute to court is embarrassing, especially marital disputes and inheritance disputes.
This is in line with the results of Kaban's research on the Karo Community which stated that it was a very shameful thing for the Karo people if the issue of inheritance was brought to court 33.
In addition, as the implementation of safeguard "todus" namely their feelings to make their dispute hidden from the general public became basic consideration for Madurese to use mediation.
Therefore, the mediation process is generally carried out at the home of one of their relatives, or although the mediation was conducted in community figure, it is solely because of community figure was considered as able to keep the secret of the dispute that occurred between the parties.34 Based on the interviews results with Hidayat that they were mediating because they would not be known by others, because it was disgrace to have dispute known to many people, especially about inheritance disputes.
35 This is in line with the cultural values of the Madurese who abstain from 33 Maria Kaban, ‘Penyelesaian Sengketa Waris Tanah Adat Pada Masyarakat Adat Karo’ (2016) 28 (3) Mimbar Hukum 461 34 Results of an interview with Ibnu Hajar, Sumedangan Village, Pademawu Sub-District, Pamekasan Regency, July 12th, 2018 35 Results of an interview with Hidayat , Batukerbuy Village, Pasean Sub-District, Pamekasan Regency, July 8th, 2018 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 122 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... being humiliated or have to endure todus (shame), especially those concerning the dignity and good name of the family.
In this connection, mediation is the right choice to settle disputes that others will not know.
The research result Hasanah, Et Al 36 indicates that the value of respect for bhuppa 'bhabhu' especially at the whim of parents who have died, then the dispute that occurred on land inheritance and other parties can ultimately be settled through mediation and obtained the agreement of the magnitude compensation, even though logically economically, the compensation received by the heirs is not proportional to the market price of the land that is the dispute object, but it is carried out by the heirs in order to respect the oral testament of his parents (who wish to benefit from the use of land for educational purposes).
The mediator in mediating the inheritance disputes settlement among Madurese people, there are traditional leaders such as village leaders and religious leaders.
Based on the discussion results in the Focus Group Discussion with community leaders in Sumenep Regency, information was obtained that in the majority of villages in Sumenep regency, the village chief was central in settling disputes in the village because the community always entrusted the settlement of the dispute to the village chief37, generally people in rural areas when facing dispute will ask for assistance from Klebun (Village chief) to mediate over the dispute they face.
This is form of respect for rato (formal leader).
38 So, the Madurese, when faced 36 Uswatun Hasanah, above n 13, 1067 37 Results of Focus Group Discussion with Community Leaders (village chiefs and religious leaders) in Sumenep Regency, July 29th, 2018 38 Uswatun Hasanah, above n 13, 1068 with inheritance dispute, the community will first have recourse to Klebun (Village chief) as form of homage to Rato figure, the next head of the village will be asked for help from religious leaders or Keyae as homage form to the ghuru figure to arbitrate on the inheritance dispute.
Thus, it is clear that the value of bhuppa'bhabhu 'ghuru rato has become guide for the Madurese community including in settling disputes faced.
Thus, mediation in settling Madurese dispute has customary binding force because mediation is based on the voluntary willingness of the parties to settle their disputes, and the dispute settlement through mediation is means of settling disputes that is in line with the communal mentality of Madurese people and values of local wisdom such as the value of maintaining "todus" (shame) and the value of respect for bhuppa bhabhu ghuru rato so that the agreement resulting from the mediation of Madura community dispute settlement binds parties who have agreed to the mediation results.
Institutionalization of Dispute Settlement Mediation of Madurese Community Through the Legal System To increase the binding force of inheritance dispute settlement results in mediation on madura communities can be done through 3 (three) forms through conducted certification to mediators village, legitimized by regional regulations, and hence the sense of justice39.
39 According to Lawrence M. Friedman, there are three main elements of the legal system, namely: (1) legal structure (2) legal substance (3) legal culture.
See Lawrence M. Friedman, The Legal System: A Social Science Perspective (New York :Russell Sage Foundation, 1975) Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... | 123 1) Conducted certification to Mediators Village Legal structure involving various institutions created by the legal system with its various functions in order to support the system operation.
One of them was the Court.40 The mediation data at trials that were successful nationally <4.
41 Therefore, the mediation of the Madurese community disputes settlement needs to be structured so that mediation in the village can support legal dispute settlement system outside the court.
In mediating the dispute settlement of Madurese community, the mediator role was the Village chief (Klebun) and the Keyae.
Structurally, pursuant to Article 26 of Law Number 6 of 2014 (Village Act), the village chief has task to implement village administration, village development, village community and empowering coaching village community.
In implementing the task as referred to in paragraph (1), the head of the village community is obliged to settle disputes in the village and fostering and preserving the socio-cultural values of the village community (Article 26 paragraph (4) of the Village Act).
Based on the interview results with Anwar that the village community hoped that the agreement reached through mediation held in the village should be able to provide basis for the court that the community agreed that there was no need to have trial because mediation was based on the parties wishes and the procedure had also been carried out in accordance with the mediation principles42.
40 Sukresna, ‘Pemberdayaan Lembaga Mediasi Dalam Penyelesaian Sengketa Di Bidang Pertanahan’ (2012) 41 (1) MMH 84 41 Gatot Dwi Endro Wibowo, ‘Aspek Hukum dan Kelembagaan Dalam Peningkatan Efisiensi dan Regarding mediation, Supreme Court Regulation (PERMA) Number 1 of 2016 on Regulation of Mediation which is integrated into litigation procedures in court.
In Article 1 PERMA Number 1 of 2016 it is stated that mediation is a way of settling disputes through the negotiation process to obtain agreement between the parties assisted by the Mediator.
The mediator is required to have Mediator Certificate obtained after taking and is declared to have passed the Certified Mediator Training held by the Supreme Court or institution that has obtained accreditation from the Supreme Court (Article 13).
Based on the provisions of PERMA Number 1 of 2016, that in order to become mediator, person must have Mediator Certificate, namely document issued by the Supreme Court or institution that has obtained accreditation from the Supreme Court stating that someone has attended and passed Mediation certification training.
So, PERMA Number 1 of 2016 only regulates mediators who help parties in the negotiation process to find various possibilities for dispute settlement as litigation procedures in court, while mediation outside the court, in Article 36 paragraph (1) PERMA Number 1 of 2016 is stated that peace agreement with out-of-court dispute settlement can be submitted to the competent court to obtain Peace deed by filing lawsuit.
The problem is that the Madurese culture who do not want to be convoluted, lack of understanding of the procedure in court proceedings, and the distance between the village and the court are the factors that reluctantly relates to the Madurese community dealing with the court.
Efektivitas Pengelolaan Wilayah Pesisir’ (2009) 16 (1) Jurnal Hukum 1 42 Results of an interview with Anwar, Pasongsongan Village, Pasongsongan Sub-District, Sumenep Regency.
August 8th, 2018 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 124 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... Based on the PERMA Number 1 of 2016 determines that the mediators who carry out the mediation functions in courts shall have mediator certificate then using the principle of analogy, the provisions of PERMA Number 1 of 2016, may be applied toward the village mediators or obligation to have Mediator Certification.
Mediator certification is education and training to mediators up to certificate issuance by using the curriculum, time, and certain way organized by the Mediator Certification Agency in order to provide the knowledge, attitudes and behavior skill of Mediator.
The procedure that must be done to receive mediator certification is to take mediator course for 40 hours and pass the theory test and practice exam (Decree of the Supreme Court Chief of the Republic of Indonesia Number 117 / KMA / SK / VI of 2018).
During this time, the mediator in the disputes settlement through mediation in the village over religious disputes was the village chief and Keyae.
For this reason, village chiefs and employees can be certified as village mediators.
The training budget for the certified mediators can be charged to the village budget is the governance budget, because one of duties of the village administration is settling disputes in the village (Article 26, paragraph (4) of the Village Act).
In this case, the mediator role is important in helping smooth the mediation in order to settle the disputes faced by the village community.
2) Increased Binding Force In Form Regional Regulation Legal substance is the rules, norms, and behavior patterns of human being in the 43 Sukresna, above n 32, 84 system.
So the legal substance concerns the applicable laws and regulations that have binding force and become guidelines for law enforcers.
In other words, the substance also means products produced by people who are in a legal system that includes decisions issued, or new rules that are compiled.
So, the legal substance includes everything that is the output of legal system in the form of regulations, decisions as far as all of these are used in the process concerned.43 Since the civil dispute settlement institutions, especially religious dispute (disputes in marriage and inheritance) in community Madura through this mediation has expanded and is applicable in almost all the regency in Madura, then substantially the necessary arrangements in this regard the legal figure as legitimate mediation of dispute settlement of Madurese community is not enough if only through the Village Regulation (PERDES), but it needs to be done through Regional Regulations (PERDA) so that its reach can cover the regency area.
Article 18 Paragraph (6) The 1945 Constitution of the Republic of Indonesia (UUD NRI) reads "Every Regional Government has the authority to stipulate Regional Regulations".
The existence of this article indicates that the 1945 Constitution of the Republic of Indonesia has provided constitutional legitimacy to the Regional Government to form Regional Regulations.
Furthermore, regional authority to establish Regional Regulations has been regulated in Law Number 12 of 2011 on Establishment of Legislation and Law Number 23 of 2014 on Regional Government.
Article 14 of Law Number 12 of 2011 regulates that Provincial Regulations and Regency/City Regulations contain Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... | 125 material in the framework of implementing regional autonomy and tasks coadministration and accommodating regional special conditions and / or further elaboration of higher legislation.
Similar provisions are also contained in Article 235 of Law Number 23 of 2014 which determines that to organize Regional Autonomy and Tasks Assistance, Regions form Regional Regulation (PERDA) (paragraph 1).
PERDA as referred to in paragraph (1) contains content material: (a) implementation of Regional Autonomy and Assistance Tasks; and (b) further elaboration of the provisions of higher laws and regulations.
In addition to the content material as referred to in paragraph (3), the Regional Regulation (PERDA) can contain local content material in accordance with the provisions of the legislation (paragraph 4).
The establishment of good local regulation must pay attention to the principles of the formation of legislation, as stated in Article 5 of Law Number12 of 2011, namely: (a) clarity of purpose; (b) appropriate forming institutions or officials; (c) compatibility between type, hierarchy and content material; (d) can be implemented; (e) utility and usefulness; (f) clarity of formulation; (f) openness.
Regarding the content material that can be regulated by the Regional Regulation (PERDA), Article 14 of Law Number 12 of 2011 determines that the following matters must be considered, namely : (a) PERDA may not conflict with higher laws and regulations, because one the content of the Regional Regulation (PERDA) is to further elaborate the higher legislation; (b) and the Regional Regulations (PERDA) can regulate 44 Iwan Sulistiyo, Et Al, ‘Implementasi Asas Keterbukaan Dalam Proses Pembentukan Peraturan Daerah Dalam Rangka Otonomi Daerah Di Kabupaten Kendal (2018) 1(1) Jurnal Daulat Hukum 197 content material that aims to accommodate regional specific conditions.
44 So, the material contained in the PERDA can come from several sides, including: (a) originating from delegation of laws; (b) because of regional initiatives; (c) elaboration of custom; (d) the translation of religion.
Thus, the existence of a PERDA is expected to give meaning to the community, especially in accommodating local wisdom.45 Therefore, for the peace agreement resulting from mediation with village mediators to have binding and final power, the legal umbrella that provides legal basis and can guarantee legal certainty is very necessary.
The existence of a legal umbrella is needed in order to improve the legality and legitimacy of written peace agreement resulting from the mediation as dispute settlement of Madurese community through village mediators, so that they do not only have customary binding force but also have final and binding force according to the national law.
3) To Accommodate The Customary Law of the Madurese Community Legal culture is atmosphere of social thought and social forces that determine how the law is used.
Legal culture is closely related to public legal awareness, the higher the legal awareness of the community, the better the legal culture will be created, in other words, the level of community satisfaction with the law is one indicator of the legal function.
Legal culture by Friedman is referred to as attitudes and values that have a relationship with law and the legal system.46 45 Muhammad Suharjono, ‘Pembentukan Peraturan Daerah yang Responsif Dalam Mendukung Otonomi Daerah’ (2014) 10(February) Jurnal Ilmu Hukum 26 46 Sukresna, above n 32, 84 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 126 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model...
Even though Law Number 30 of 1999 Article 6 paragraph (1) has stipulated that disputes or differences in civil opinion can be settled by the parties through alternative dispute settlement based on good faith overriding litigation settlement in the District Court.
Furthermore, written dispute settlement or difference of opinion agreement is final and binding on the parties to be carried out in good faith and must be registered with the District Court within a maximum of 30 (thirty) days from the signing (Article 6 paragraph (7) Law Number 30 of 1999.
By looking at these provisions, the agreement to settle disputes outside the court must be written and must be registered with the District Court.
However, because of the peace agreement the results of mediation settlement religious dispute Madurese never registered at the Court with considerations as noted previously (not like convoluted, long distances between villages court) then need legislation that can be became the umbrella legislation on dispute settlement of Madurese with klebun and keyae mediators.
Under these provisions, the institutionalization of dispute settlement of Madura community through legislation, will able to increase effectiveness because mediation has become habit of Madurese is out of court mediation, mediation through the villages mediator, the Village chief and / or Keyae.
The regulation is in accordance with the conditions of special needs of Madurese community and there is no opportunity for other parties to take actions that can cause disruption or uncertainty over the agreements that have been reached through village mediators.
Consequently, community legal awareness also will increase because the law is in accordance with the sense of justice of the community and ultimately can reduce the accumulation of cases in court.
IV.
CONCLUSION AND SUGGESTION The mechanism for non-litigation civil disputes settlement in Madurese communities is carried out peacefully through consensus agreements with the help of mediators.
The mediator is the village chief, he/ she help to settle the dispute.
If the Village chief is unable to settle the dispute that submitted to him, especially the religious dispute, the Village chief (Klebun) will ask the ulama (Keyae) to become mediator in dispute settlement.
The reason Madurese prefer the nonlitigation civil dispute settlement model are to maintain harmony, kinship, and friendship between them.
All of that is based on the value of respect to "bhuppa 'bhabhu' ghuru rato".
In addition, the distance to go to the court, lack of the court procedures understanding and the high costs (both because the distance to the court is far from their home and the cost of lawyer is expensive, if you have to choose civil dispute settlement in the court) are the factor that make Madurese people prefer use nonlitigation civil disputes settlement.
Moreover, mediation of Madurese dispute settlement has binding power in the society because, the mediation is based on the voluntary willingness of the parties to settle their disputes, and deliberation through mediation.
It is means, settling disputes that is in line with the communal mentality of Madurese, wisdom values local values such as maintaining "todus" (shame or humiliated) and the value of respect for “bhuppa bhabhu ghuru rato”.
Consequently, the agreement that is resulted from the mediation of Madurese dispute settlement binds parties who have agreed to the mediation results.
In the end, the institutionalization of Madurese civil disputes settlement through three (3) elements of legal system that are the legal Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... | 127 structure (conducted certification of mediator’s village), legal substance (legitimacy through regional regulation), and the legal culture (of public awareness) is getting stronger for the use of mediation in village because it fits the sense of justice of the community.
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Rato, Dominikus ‘Revitalisasi Peradilan Adat Pada Masyarakat Ngada Berbasis Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 128 | Hasanah, Hamzah, Winarwati Development of Non-Litigation Civil Dispute Settlement Model... Kearifan Lokal’ (2015) 92(MayAugust) Yustisia.
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18 | DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.02 Who’s Law is it Anyway?
(A Comparison of Attitudes Towards Dispute Resolution in China and Taiwan, through Australian Eyes) 1Charlotte Ethel Smee 1University of Wollongong, Australia E-mail : charlottesmee9@gmail.com Submitted : 2017-09-07 | Accepted : 2018-03-28 Abstract: This essay aims to address the gaps in research by exploring how non-legal cultural backgrounds and historical contexts can affect how mediation is received in different legal systems.
While there is never a discussion of cultural attitudes contributing to the relative success of ADR methods, the comparison reveals just how important culture is when examining legal process.
Different legal system results in different perception of justice and thus it is important to identify lesson learn from different experiences and incorporate them into each system to better facilitate dispute resolution in own system.
Case studies and legislation, as well as the study of how mediation processes are utilised effectively and are used to argue that culture is an important factor to consider when examining ADR processes.
In order to investigate the role of culture in mediation process, this paper uses comparative analyses of mediation process in Australia, China and Taiwan.
Keywords: Alternative Dispute Resolution, mediation, China, Taiwan, Australia, cultural attitudes, comparative study I.
INTRODUCTION In Australia and the United States, the alternative dispute resolution (‘ADR’) mechanisms as legitimate alternatives to the court system were just accepted.
Those countries are often held back from embracing mediatory techniques because of our obsession with justice over efficiency, and the fear of ‘new’ and unfamiliar processes.1 The biggest obstacle that ADR faces in the 1 Peter Dwight, ‘Commercial Dispute Resolution in Australia: Some Trends and Misconceptions’ (1989) 1 Bond Law Review 1, 9.
2 Ibid, 2.
West is an ‘ingrained attitude that an early approach to settlement is a sign of weakness’ and a complete waste of time.2 On the other hand, the Chinese believed that ‘the law was for barbarians’, and an ideal society would ‘never require extensive litigation or legislation’.3 Mediation was therefore the preferred method of dispute resolution, because mediation would preserve harmony for the collective good and sidestep the 3 Diana Yun-Hsien Lin, ‘Civil Mediation in Taiwan: Legal Culture and the Process of Legal Modernisation’ (2011) 6 University of Pennsylvania East Asia Law Review 191, 196. mailto:charlottesmee9@gmail.com Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Smee Who’s Law is it Anyway?
(A Comparison of Attitudes towards... | 19 corrupt, inefficient court systems of old.4 These two drastically different viewpoints are not often placed together, because Western scholars and lawyers take an introspective view of their own legal systems, preferring to solve problems using familiar principles and processes.
While some Western scholars do recognise that ‘forms of mediation can be traced back to sources in Ancient Greece, the Bible, traditional communities in Asia and Africa, and to the fourteenth Century English Mediators of Questions’5; the development of modern and legitimate alternative dispute resolution processes are almost always attributed to Western thought and common law legal traditions.6 This is problematic because it oversimplifies the cultural context behind different legal systems, including those in the West.
The West almost always credits itself with the invention of modern mediation, even where these kinds of processes have existed as the primary method of resolving disputes in China for centuries.
This essay aims to explore how different attitudes towards ADR and litigation in different contexts have contributed to the ways that ADR processes have developed in China, Taiwan and Australia, as well as illustrating the unexpected similarities between the Taiwanese and Australian legal systems.
Case studies and legislation, as well as the study of how mediation processes are utilised effectively and are used to argue that culture is an important factor to consider when examining ADR processes.
In order to investigate the role of culture in mediation process, this paper uses comparative analyses 4 Jerome Alan Cohen, ‘Chinese Mediation on the Eve of Modernisation’ (1966) 54 California Law Review 1201, 1212.
5 Nadja Alexander, ‘What’s Law Got to Do With It?
Mapping Modern Mediation Movements in Civil of mediation process in China, Australia, and Taiwan.
II.
LEGAL MATERIALS AND METHODS This type of research can be classified as normative reseach or legal research literature based heavily on legislations of three different countries.
Case studies and legislation, as well as the study of how mediation processes are utilised effectively and are used to argue that culture is an important factor to consider when examining ADR processes.
In order to investigate the role of culture in mediation process, this paper uses comparative analyses of mediation process in Australia, China and Taiwan.
Legal materials used for this research varies from primary legal sources, which include relevant acts and also legislations of China, Australia as well as Taiwan.
III.
RESULTS AND DISCUSSIONS Historical Development This section briefly overview historical development in alternative dispute resolution, specificaly mediation mechanism in three contries, which are China, Australia and Taiwan.
The aim of this is to determine whether cultural tendency incluence country’s approach in considering an alternative dispute resolution.
It analyses how important culture is when examining legal process, including mediation as one of legal process.
Imperial China: a shared history with the modern Taiwanese and Common Law Jurisdictions’ (2001) 13 Bond Law Review 1, 1.
6 Ibid, 1-2.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 20 | Smee Who’s Law is it Anyway?
(A Comparison of Attitudes towards... China before 1911 has a vast history, and it is difficult not to oversimplify its diverse influences and societies.
Since the Qin dynasty it has been centralised, at least formally, under an imperial autocratic rule.
During this time, the law was used as a tool to preserve the Emperor’s power, rather than to protect individual rights and resolve disputes.7 This is important because it created a society in which common people distrusted the mechanisms of the law, and could not use it for their own purposes in the same way that it is used in modern Australia.
Distrust, as well as the time and cost of travelling to the local magistrate that was often located only in the central city of a province, meant that the Chinese often preferred mediation methods outside the court system.
This effect was accentuated by the structure of the system itself; when a complaint was brought before a magistrate his first task was to accept or reject the claim, and if accepted investigate the merits of the claim or, if rejected, he was to provide an opinion containing a statement persuading both parties to settle the matter between themselves based on the analysis provided by the magistrate.8 This system was paired with the Confucian preference for mediation, which stems from the idea that the legal process of a society was not an achievement of civilisation ‘but rather a regrettable necessity’9.
In Confucian theory, an ideal society would not require laws because its people would resolve disputes peacefully between themselves.
A highly important Confucian teaching still very much present in China and Taiwan is the importance of social 7 Yujun Feng, ‘Legal Culture in China: A Comparison to Western Law’ (2010) 16 Revue Juridique Polynesienne 115, 118.
8 Cohen, above n 4, 1211.
9 Ibid,1201.
harmony and the resulting anti-lawsuit attitude.10 This attitude treated the use of the law to resolve disputes as the last resort, in that it would destroy the relationships between those involved in the dispute and force them to take their petty problems before the magistrate.
Mediation was therefore a perfect alternative to the official court system that was not helpful or practical in the first place, and would avoid the embarrassment and punishment associated with even civil disputes.11 The emphasis on mediation was not really codified in the legislation of the Qing dynasty, the last dynasty before 1911, the only mention being in the Official Commentary to the Qing Code authorising certain rural leaders to reconcile disputes over ‘petty matters’ like property and domestic matters.12 It was instead found in the way that the Chinese people reacted to and used the courts in practice, reflecting both the Confucian sentiment and the dissatisfaction with the court system.
The most extreme example of the anti-lawsuit attitude in action is the village where there was not a single lawsuit for more than a generation because of the influence of a village official who could ensure that disputes were resolved before they could be heard in a court.13 The influence of officials who acted in line with Confucian philosophy also had an overwhelming effect on the way that Chinese people resolved disputes, even though their attitudes were not cemented in Qing dynasty legislation.
Imperial China’s court system, combined with Confucian anti-lawsuit 10 Lin, above n 3, 195.
11 Ibid, 195.
12 Cohen, above n 4, 1209.
13 Ibid, 1210.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Smee Who’s Law is it Anyway?
(A Comparison of Attitudes towards... | 21 attitudes and officials who acted in accordance with this, fostered a culture in which mediation and other alternative dispute resolution methods flourished.
Australia: child of Mother Britain Australia’s legal system is inherited straight from the common law tradition in Britain, exported to us by the Imperialist colonisers in 1777 and effectively erasing any kind of legal system that existed before that.
This does not mean that Australia is an exact copy of Britain, just as the US is not, but instead means that Australia operate on the principles set out by common law judges at the time of the King’s Courts.14 The English system was based on the idea of impartiality, and developed from humble beginnings in the 12th century as a body of separate adjudicators who resolved disputes.15 By Henry VIII, the common law courts alone had cumbersome and clogged and the Courts of Chancery were developed.
These were the mediaeval English equivalent to mediation, but soon became just as overworked as the common law courts.16 The English example emphasised impartiality and formality, and this is problematic for mediation because it effectively sidesteps the official process of the court system.
By opting for a separate court for equitable and civil disputes that utilised only a small range of the King’s discretion, the English set a precedent of formality and due process that ensured that disputes were properly managed.
14 Melissa Hanks, ‘Perspectives on Mandatory Mediation’ (2012) 35 University of New South Wales Law Journal 929, 944.
15 Courts and Tribunals Judiciary, History of the Judiciary (2017) <https://www.judiciary.gov.uk/about-thejudiciary/history-of-the-judiciary/> 16 Ibid.
Australia then took this system and developed it to match our own context and legal culture.
This culture is less defined than that of Britain, and is often made up of a mix of other systems altered to suit our specific problems.
‘A look at The Law Reports of the Commonwealth illustrates the high degree of comparative law borrowing that still happens in the world-wide family of Commonwealth courts’17, and this has contributed to the way that Australia has so uniquely developed its mediation processes ahead of the rest of the Western legal world.
Australia’s unique position as a common law country in the Pacific basin, that has some kind of uniform federal system, creates a steady foundation for modern mediation.
This is somewhat restrained by the attitudes inherited from an English common law system; adversarialism, concern that ADR methods do not afford formality expected from courts, and ultimately that anything outside a court is not binding on a party and therefore useless.
In terms of mediation, Australia is a world leader for the West, drawing ever so subtly from the East.
Taiwan: not just another province of China While Taiwan inherited the Chinese legal system when the Nationalists fled the mainland in 1949, there were a few legal systems in place beforehand.
Taiwan was modernised much earlier than China when Japan assumed control over Taiwan and implemented its own modern codes.18 These 17 Michael Kirby ‘ADR and Different Legal Cultures’ (Speech delivered at the Arbitrator’s and Mediator’s Institute of New Zealand, Institute of Arbitrators and Mediators Australia Conference, Christchurch NZ, 6 August 2010) <http://www.michaelkirby.com.au/images/stories/ speeches/2000s/2010_Speeches/2476-AMINZ-IAMA-CONF-2010-CHRISTCHURCH-NZ.pdf> 18 Lin, above n 3, 199.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 22 | Smee Who’s Law is it Anyway?
(A Comparison of Attitudes towards... modern codes were modelled on the German civil system, which brought with it assumptions of formality similar to those in England and other common law countries.
However, the Japanese recognised the customs of both the indigenous Taiwanese people and the Han Chinese when dealing with family and other civil disputes – which preserved the heavy Confucian influence over mediation and alternative dispute resolution processes.19 It was, however, still controlled by the Japanese who exerted their control through administrative means, for example the 1904 Civil Disputes Mediation Law punished non-appearance at mediation with visits to the police station and the imposition of a fine.20 The presence of the Japanese gave the Taiwanese the opportunity to access courts very differently to the people in Qing dynasty China, and this meant that by the 1920s the people had become ‘accustomed to using modern courts to resolve civil disputes, and the number of civil lawsuits eventually surpassed that of administrative mediation’.21 Taiwanese people therefore had a more positive attitude to the courts than the Chinese, thanks to the eager promotion of the modern system brought by the Japanese.22 Taiwan is similar to Australia, in that it is a blend of Western and Eastern cultures – although it begins from the East and has moved toward the West.
Taiwan’s unique position as ‘one land with two flags’,23 reflects its complicated history and allows it to be receptive to many influences from ADR movements in the West, but also to the 19 Ibid, 199.
20 Ibid, 200.
21 Ibid, 201.
22 Tay-Sheng Wang, ‘The Legal Development of Taiwan in the 20th Century: Toward A Liberal and ancient tradition of mediation and dispute resolution in China.
A look at modern mediation As explain above, that culture is actually has impact on how legal process and dispute resolution operates in each of the country, this section analyses how modern approach also contributes on country’s legal process.
How each country react on modern development towards their own legal process and alternative disputes resolutions.
Today’s China: Confucianism and Communism China today retains the widespread use of mediation, aided by Maoist approval of Confucian values.
‘Maoist ideology has put enormous emphasis on mediatory justice, in many ways even more than [the attitudes found in the Qing dynasty]’.24 Mao adopted slogans based on Confucius in order to promote mediatory justice, for example ‘mediation is the main thing, adjudication is secondary’.25 Communist China drew from the cultural ideals that came before, aiming to create ‘socialism with Chinese characteristics’.
Mediation in this context was highly valued because it maintained the values of collectivism and social harmony that is integral to achieving a united body politic.
Hence, the way that the Chinese people have used and valued mediation in the current era has been essentially continued from the Qing dynasty, but for slightly different reasons.
The mediation that exists now, in socialist China, is inherently different to that Democratic Country’, (2002) 11 Pacific Rim Law and Policy Journal 531, 559.
23 Ibid, 531.
24 Philip Huang, ‘Court Mediation in China, Past and Present’ (2006) 32 Modern China 275, 285.
25 Cohen, above n 4.
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(A Comparison of Attitudes towards... | 23 in the Qing dynasty.
Huang terms this new mediation to be ‘adjudicative mediation – that is, mediation with adjudicative features, so long as it is not imposed against the will of a litigant.’26 It also had distinct differences from the Qing law, and from the glimpses of Western law implemented by the Nationalists prior to 1949, because it was more focussed on justice according to the ideal; ‘from the masses, to the masses’.27 Following this ideal, the Civil Procedure Law of the People’s Republic of China established the idea of circuit trial, where judges were given more of an active role investigating the truth at the grassroots level, and finding out if the dispute was worth resolving in order to preserve harmony in society.28 One example of this in action was a judge involved in a dispute about trees on the boundary of the two parties’ residential blocks, which ended up in a physical fight leaving the plaintiff with a concussion.
After the village leaders had attempted to mediate, the judge got involved directly and spoke with witnesses to the fight, privately visiting both of the parties and hearing their versions of the facts.29 According to Huang, this allowed him to speak ‘with all the authority not only of the court, but also of the knowledge gleaned from his thorough investigation of the facts’.30 Mediation, as such, has become a more involved process that even further emphasises the ideal of social harmony and compromise through the actions of the investigative judiciary.
Nationalist and subsequently Socialist government policy also changed the way mediation was treated, in that it brought 26 Huang, above n 25, 276.
27 Ibid, 286.
28 David Kwok, ‘The (im)propriety of judicial mediation’ (2015) 26 Australian Dispute Resolution Journal 210, 211-2.
Codes from a Civil Law system and courts to adjudicate on those Codes.31 This meant that there was a brand new system in which mediation occurred alongside a Westernstyle court instead of an Imperial court that was only located in central cities of each province.
Codified civil laws regarding divorce, rights of ownership and other ‘petty’ matters as they were in the Qing dynasty, began from a rights perspective rather than an Emperor’s perspective and as such changed the way that Chinese people used the law and regarded their disputes.32 In modern China, ‘court mediation is becoming a less and less prominent part of the total justice system, because of the mounting caseloads and changing ideas about the rule of law’33.
China in the new century is moving away from a rule of man approach to a rule of law approach, and as such people in China can more easily use their court system to resolve disputes because it is more accessible, and more focussed on them and their rights than the Imperial autocratic manifestation of the law.
The responsibility of Chinese people in the modern legal context is therefore no longer to resolve disputes between themselves in order to avoid embarrassment and inconvenience, but it is instead to access a court system that will, at least theoretically, protect their rights.
All of the People’s Republic of China’s initiatives and Codes are still very recent, but it is clear that a more accessible court system is fostering a move away from the traditional reliance on mediation and distaste for the litigation process.
Modern Chinese law and mediation practices have taken on a heavy 29 Huang, above n 25, 294-5.
30 Ibid, 295.
31 Ibid, 297.
32 Ibid, 297-8.
33 Ibid, 298.
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(A Comparison of Attitudes towards... formalist influence, although they still hold distinct Confucian influence and characteristics.
Taiwan Today: Journey to the West?
When the Nationalists fled the mainland in 1949, they brought with them a legal system largely modelled on modernised Japan that was never implemented in the mainland due to recurrent war.34 Because of this, ‘the old Japanese code was substantively preserved in Taiwan’35 not intentionally, but by the fact that the Nationalists had created a significantly German civil system with the Japanese modern system in mind.
Taiwanese people therefore had more than twenty years experience with a German based system, and were at least somewhat used to the way that it operated to resolve disputes.36 The Japanese system was not fully preserved in the sphere of mediation, because the Nationalists brought with them a Chinese county mediation system and changed the mediators from administrative officials to local people and others who were not in official positions.37 The Act of Town Mediation in 1955 established this type of County mediation.38 It created a more adjudicative mediation, similar to that introduced in Maoist China.
It included mechanisms allowing the judicial oversight of mediation, in that there was now an appeal system that did not exist in the Japanese style of administrative mediation.39 Further amendments to Town Mediation since 1955 have promoted an impartial committee of mediators, and reformed the enforceability of 34 Lin, above n 3, 203.
35 Wang, above n 23, 537.
36 Ibid, 556.
37 Ibid, 558.
38 Lin, above n 3, 205.
39 Ibid, 205.
40 Ibid, 206. decisions to ensure that parties will follow the result that is mediated for them.40 Statistics from Taiwan’s Ministry of the Interior state that ‘cases of town mediation have increased from around 45,000 in 1991 to 112,000 in 2008’.41 This has not been attributed to the modernised system in Taiwan, but more to the fact that there was a notable increase in the use of criminal mediation, and the increased occurrence of traffic accidents.42 While there had been marked growth in the way that Taiwanese people accessed the courts in the Japanese colonial period, the increased Western influence brought by the Nationalists led to an even stronger increase in the number of lawsuits brought to the courts.43 This increase was also aided by the urbanisation of Taiwan, making it more difficult to find a mediator substantially connected to each of the parties, as well as the capitalist economy and social context creating more complex disputes that require the assistance of a court.44 Unlike the old Chinese agricultural society that was the foundation of face-to-face relationships and mediation styles, the increased urbanisation and industrialisation of Taiwan meant that relationships and ways to maintain those relationships had substantially changed and could no longer be resolved so informally.45 There is still a distinct Confucian influence, since Taiwan is still a ‘relationship-driven society’ that judges fairness in the context of social relations instead of strict justice under law.46 While that influence is not as clearly followed as it is in the People’s Republic of 41 Ibid, 206.
42 Ibid, 206.
43 Wang, above n 23, 559.
44 Ibid, 559.
45 Lin, above n 3, 204.
46 Ibid, 207.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Smee Who’s Law is it Anyway?
(A Comparison of Attitudes towards... | 25 China, the way that mediators and adjudicators judge disputes is still informed by Confucian thought that aims to preserve harmony and relationships even in an urbanised, democratic and capitalist society.
Taiwan sits firmly between Japan and Mainland China, physically and legally.
It is still strongly connected to Imperial China through its cultural connections and schools of thought, despite being heavily Westernised through the legal systems brought by the Japanese colonists and the Nationalists that were both based on the German Civil Codes.
Modern Australia: Moving forward?
Since the beginning of the ADR movement in1970s United States, when a former Chief Justice asked ‘Isn’t there a better way?’47, Australia has focussed on implementing measures to ensure that cost, time and energy is saved in the court system to better the sense of justice and satisfaction in users of the court process.
Up to the present day, ‘ADR processes are increasingly being used as a [legitimate] alternative to litigation in many types of disputes’48, and there is now court-related resolution mechanisms in every court and tribunal in Australia, as well as community and private mediation in all Australian jurisdictions.49 One example of the way that mediation has been introduced in Australia is the Cooperative and Community Housing Act 1991 (SA) which states that appeals from disputes under the legislation can only be determined if there is found to be a genuine attempt at mediation first.50 This type of 47 Kwok, above n 29, 214.
48 Tina Popa, ‘All the way with ADR: Further endorsement of ADR in litigation’ (2015) 26 Australian Dispute Resolution Journal 218, 218.
49 Alexander, above n 6, 2. mandatory mediation is most common in Australian jurisdictions, used to directly combat the heavy caseload of high volume courts.
The widespread presence of ADR in Australia attributable to a few factors, namely the clogged courts, high costs of litigation and dissatisfaction with the court process as well as the pro-active promotion of ADR methods in the wider community.51 The most interesting example of the Australian promotion of mediation is the way that it has been incorporated into law scholarship, in that some kind of study of ADR processes is compulsory in most Australian law degrees.
This has fostered a growing support base for ADR because it has become less of a foreign idea to a common law student, and more of a solution to the problems that the common law has faced since the times of the King’s Bench.
There is still, however, harsh criticism of the way that mediatory processes impact the way that our common law system is used in practice.
The English case of Jones v National Coal Board52, involving a trial judge who was ‘anxious to understand the details of this complicated case… anxious to investigate’ and held to be intervening excessively sets out the image of an ideal judge to be more of a ‘passive umpire’ than a conscientious resolver like the Chinese mediators.53 Although this case was decided in 1957, and the judicial role has transformed significantly since then, the case still represents the attitudes of a significant school of thought that criticises ADR methods.
Kwok points out the ‘judges are now given powers they never had before to become 50 Ibid, 12.
51 Ibid, 7.
52 [1957] 2 QB 55.
53 Kwok, above n 29, 213-4.
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(A Comparison of Attitudes towards... interventionists.
Whether this is a good thing is debatable’.54 He says this because the foundation of the Australian image of ‘fairness’ is the idea of impartiality, theoretically a judge must be a completely neutral figure that does not inquire into the matters of the case but rather decides on the facts presented to them.
This foundation is not helpful to the development of mediation because it suggests that a judge who relaxes their adjudication in favour of a more efficient process is not really adjudicating at all.
One significant reason that Australia has been so receptive to ADR is that our position in the Pacific Basin means that there is a direct influence of cultures such as China who are less accustomed to adversarial dispute resolution, that allow us to see how alternative dispute resolution methods can work in different contexts.55 The effect of comparative law is often underestimated, and in modern multicultural Australia it does play at least a small role in the way that the legal system is used.
This is mainly because there are people with all kinds of experiences with diverse legal practices who must also use the Australian court process, and a court is really only made up of the people who use it.
Just like in Taiwan, the experiences and attitudes of the people themselves rather than the regime above them dictate how mediation and court processes are used.
Who’s law is it?
Scenes from a hat: Mediation takes many forms Just like a person can interpret an instruction in many ways, the way that a legal system receives and interprets a concept is totally unique.
The Chinese, Taiwanese and 54 Ibid, 216.
55 Dwight, above n 1, 4.
Australian legal systems have all engaged with some kind form of mediation and ADR process, but they have all engaged in different ways according to their cultural foundations and social experiences.
One obvious difference between Australia and China/Taiwan is the fact that we are a common law country and the others are civil law countries.
The difference is significant because the civil law tradition is usually seen as restraining the development of mediation, in that it is based on the idea that all laws are contained in codes.56 This is certainly the case in Germany, however in China and Taiwan the experience has been completely different.
The reason for this lies in the way that mediation is enshrined in the Chinese culture, as a way to preserve social order in the same way that the civil code does in Germany – the birthplace of China and Taiwan’s current system.
In Australia it has been proposed that the reason why mediation is so well received is because the common law allows for flexibility and the interaction of many different legal mechanisms with the mainstream court system.57 While this is true, a common law system in general is not conducive to a healthy mediation system because of the way that ‘fairness’ is perceived; as inherently impartial.
The common law and the civil law therefore play a distinct role in how mediation is treated, but this is often undercut by the culture that surrounds the legal system.
I contend that while civil law systems in the West are generally more resistant to ADR processes, it is important to recognise those countries like China in discussions of how ADR is received in different cultural contexts.
To say that civil law countries do not accept mediation is a narrow view of the diverse range of civil law 56 Alexander, above n 6, 3.
57 Ibid, 20-21.
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(A Comparison of Attitudes towards... | 27 systems that exist in many different cultures, particularly in the Asia-Pacific region.
Taiwan’s system, inherited from almost everywhere, is a great example of how even legal systems become globalised.
The way that mediation is conducted in a Western structure with a distinct Taiwanese flair shows how the people in a society as well as its rulers dictate how legal processes really operate.
Although Taiwan’s civil codes are modelled on Germany, and are in fact very similar to other Western civil law countries, its distinct Confucian and Japanese influences dictate how the law operates in practice.
It is especially unique when compared with China and Australia because it provides an example of a kind of midpoint between the two; where China is unapologetically Chinese with Western influence and Australia is a fiercely common law system with distinct Asian influences.
Taiwan then falls in the centre of this spectrum, being the convenient experimental society in which Japan, the Chinese Nationalists and other Western occupiers could place their ready-made modernised legal systems.
The way that the Taiwanese value mediation in a their capitalist, civil law society is a clear reflection of its complex history.
III.
CONCLUSIONS AND SUGGESTIONS The comparison between the way that Australians, Taiwanese and Chinese treat the mediation process reveals just how important culture is when examining legal process.
‘It is nothing less than misleading to consider mediation as a universal process in isolation from its context’58, and further it is misleading to consider the Western experience in isolation from the rest of the world – especially when Asian countries have such a unique experience with mediation and ADR processes.
When considering the East in discussions of ADR, although it seems that our mediation systems are moving in opposite directions, it is obvious that we are really working towards the same goal of justice and access to the court systems.
The perceptions of justice from those three contries may be different, and the way that each contry’s court systems operate are different too, but ultimately the law is about resolving disputes in a way that is compatible with a body of people.
The question was never really who’s law mediation was, but rather how can we learn from other experiences with mediation and incorporate them into our own system to better facilitate dispute resolution in our own society.
REFERENCES Books Courts and Tribunals Judiciary, History of the Judiciary (2017) Merrils, J.G, Alternative Dispute Resolution, (1999) Shaw, Malcolm, International Law, (1998) 58 Ibid, 1.
Journal Articles Alexander, Nadja ‘What’s Law Got to Do With It?
Mapping Modern Mediation Movements in Civil and Common Law Jurisdictions’ (2001) 13 Bond Law Review 1 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 28 | Smee Who’s Law is it Anyway?
(A Comparison of Attitudes towards... Cohen, Jerome Alan ‘Chinese Mediation on the Eve of Modernization’ (1966) 54 California Law Review 1201 Dwight, Peter ‘Commercial Dispute Resolution in Australia: Some Trends and Misconceptions’ (1989) 1 Bond Law Review 1 Feng, Yujun ‘Legal Culture in China: A Comparison to Western Law’ (2010) 16 Revue Juridique Polynesienne 115 Huang, Philip ‘Court Mediation in China, Past and Present’ (2006) 32 Modern China 275 Kwok, David ‘The (im)propriety of judicial mediation’ (2015) 26 Australia Dispute Resolution Journal 210 Lin, Yun-Hsien Diana ‘Civil Mediation in Taiwan: Legal Culture and the Process of Legal Modernisation’ (2011) 6 University of Pennsylvania East Asia Law Review 191 Popa, Tina ‘All the way with ADR: Further endorsement of ADR in litigation’ (2015) 26 Australian Dispute Resolution Journal 218 Wang, Tay-Sheng ‘The Legal Development of Taiwan in the 20th Century: Toward a Liberal and Democratic Country’ (2002) 11 Pacific Rim Law and Policy Journal 531 Legislation Civil Procedure Law of the People’s Republic of China Cooperative and Community Housing Act 1991 (SA) The Act of Town Mediation (Taiwan) Cases Jones v National Coal Board [1957] 2 QB 55 Internet Kirby, Michael ‘ADR and Different Legal Cultures’ (Speech delivered at the Arbitrators’ and Mediators’ Institute of New Zealand, Institute of Arbitrators and Mediators Australia Conference, Christchurch NZ, 6 August 2010) http://www.michaelkirby.com.au/imag es/stories/speeches/2000s/2010_Speec hes/2476-AMINZ--IAMA-CONF2010-CHRISTCHURCH-NZ.pdf http://www.michaelkirby.com.au/images/stories/speeches/2000s/2010_Speeches/2476-AMINZ--IAMA-CONF-2010-CHRISTCHURCH-NZ.pdf http://www.michaelkirby.com.au/images/stories/speeches/2000s/2010_Speeches/2476-AMINZ--IAMA-CONF-2010-CHRISTCHURCH-NZ.pdf http://www.michaelkirby.com.au/images/stories/speeches/2000s/2010_Speeches/2476-AMINZ--IAMA-CONF-2010-CHRISTCHURCH-NZ.pdf http://www.michaelkirby.com.au/images/stories/speeches/2000s/2010_Speeches/2476-AMINZ--IAMA-CONF-2010-CHRISTCHURCH-NZ.pdf
DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.02 | 27 The Shifting of Alternative Dispute Resolution: from Traditional Form to the Online Dispute Resolution Emmy Latifaha, Anis H. Bajrektarevicb, Moch Najib Imanullahc aInternational Law Department, Faculty of Law, Universitas Sebelas Maret; Arbiter in Indonesian Arbitrators Institute (IArbI); Member of Asian Institute of Alternative Dispute Resolution (Kuala Lumpur).
Email: emmy.latifah@yahoo.com bArbiter and mediator at several permanent national arbitrational tribunals in Europe and Asia including at Asian International Arbitration Center (AIAC), Kuala Lumpur; Badan Arbitrase Nasional Indonesia (BANI), Thailand Arbitration Center (THAC).
Email: anis@bajrektarevic.eu cCivil Law Department, Faculty of Law, Universitas Sebelas Maret Email: imanullahnajib@yahoo.com Submitted : 2018-12-12 | Accepted : 2019-03-25 Abstract: The emergence of disruptive technologies has transformed how the conflict is resolved.
If Alternative Dispute Resolution (ADR) has been understood as a more efficient method of resolving dispute than through the court, then in line with the development of technologies, Online Dispute Resolution (ODR) considered as the most efficient mechanism in ADR.
Through ODR, access barriers are reduced, effectiveness increases, software becomes smarter and some ADR elements are challenged.
This article focuses on the shifting of dispute resolution from the traditional approach to the new generation one which called digital justice.
Keywords: digital justice; online dispute resolution; alternative dispute resolution.
I.
INTRODUCTION Technological revolution taken place today has brought many significant impacts for human life.
New technologies disrupt not only by changing how we do things but by 1 Orna Rabinovich-Einy and Ethan Katsh, ‘Digital Justice: Reshaping Boundaries in an Online Dispute Resolution Environment’ (2014) (1)1 International Journal of Online Dispute Resolution, 6.
2 In recent years, the word “disruption” has increasingly been used to figure out technology’s changing how we think about what we are doing, about what needs to be done and what can be done.1 Similarly, in case of dispute resolution, the emergence of disruptive technologies 2 has transformed how the impact on law.
See: N. Katyal, ‘Disruptive Technologies and the Law’, (2014) Geo L. J.
102, 1685-1689; Raymond H. Brescia, ‘What We Know and Need to Know about Disruptive Innovation, (2016) South Carolina Law Review 67, 2013-222.
Moreover, the notion that technology “disrupts” has its origins in Harvard Business mailto:emmy.latifah@yahoo.com mailto:anis@bajrektarevic.eu mailto:imanullahnajib@yahoo.com Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 28 | Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... conflict is resolved.
If Alternative Dispute Resolution (ADR) has been understood as a more efficient method of resolving dispute than through the court, then in line with the development of technologies, Online Dispute Resolution (ODR) considered as the most efficient mechanism in ADR.
Through ODR, access barriers are reduced, 3 effectiveness increases, software becomes smarter and some ADR elements are challenged.
Sela noted that the evolution of ODR was driven by two primary pragmatic and ideological forces.
4 The main force of emergence of ODR was the rise in online activities and services, spearheaded by ecommerce and fueled by unprecedented advancements in online communication, computation, and Artificial Intelligence (AI) technologies.
The second catalyst of ODR was the growing impact of the “effective access to justice” movement, the “efficiency paradigm” in dispute resolution, and the associated recourse to methods of ADR.
5 Moreover, the multi-faceted process by which these forces jointly promoted the development of ODR systems can be briefly summarized as follows: (1) a new class of online disputes emerged, and existing fora appeared inappropriate or impractical for resolving them; (2) online technologies presented unprecedented opportunities to dynamically tailor the forum to the fuss; (3) the demands for improving access to justice and redress and lowering the cost of dispute resolution, could be met, in part, by offering services online; and (4) dispute resolution School’s Clayton Christensen’s 1997 The Innovator’s Dilemma.
See: J.L.
Bower & C.M.
Christensen, “Disruptive Technologies: Catching the Wave”,(1995) 73 (1) Harvard Business Review, 43–53.
3 Susan Sturm & Howard Gadlin, “Conflict Resolution and Systemic Change”, (2007) 1 J. Disp.
Resol, 2-3.
4 Ayelet Sela, ‘The Effect of Online Technologies on Dispute Resolution System Design: service providers, like other service providers, were eager to expand online.6 The spread of internet communication is giving rise to new challenges to access to justice, as well as creating new opportunities for lowering barriers to justice.
7 Impact of this phenomenon, a growing number of disputes emerged for which courts and ADR processes provided no feasible avenue of redress.
At the same time, new technologies and online communication also became a means for making existing dispute resolution avenues more accessible and for designing novel online processes and institutions for delivering justice.
This article would like to examine the moving of dispute resolution approach from traditional justice to digital justice.
II.
LEGAL MATERIALS AND METHODS It is a normative legal research using secondary data, included primary, secondary, and tertiary legal materials.
The data were collected using library research, then legal interpretation method was employed to analysis data.
Specifically, the secondary data including: the references, consist of books, journal articles as well as conference papers and other documents having correlation with the issues.
III.
RESULT AND DISCUSSION The Relationship between Technology, Law, and Dispute Resolution Antecedents, Current Trends and Future Directions’, (2017) 21 (3) Lewis & Clark Law Review, 635-636.
5 Ibid.
6 Ibid.
7 Ethan Katsh and Orna Rabinovich-Einy, Digital Justice: Technology and the Internet of Dispute (Oxford University Press, 2017), 45-54.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... | 29 Technology have gradually changed the approach law, the way to practice it, the way to do business and finally, at the crossroad of these trends, technology have begun to change the way to resolve disputes.8 Setting up dispute resolution procedures that rely heavily on technology, especially information technology, is in this regard not a spontaneous innovation, but merely a logical next step in the history of how technology penetrate the law.9 Law-making is a slow process, while technology changes rapidly resulted technological innovation.10 The two different circumstance may effect legal certainty and cause people to act in an ambiguous environment where rights and responsibilities can not be clearly acknowledged or predicted.11 Technological changes is usually more difficult to predict when a law is drafted.
Drafting strict regulation may create obstacles to advance technologies and hinder potential benefits from them.12 Underlying reason to detention of law-making around scientific research and its application is the fear of creating obstacles for scientists which causes burdening competitiveness or generating economic and other inefficiencies.13 Moreover, the emergence of Online Dispute Resolution (ODR) is one of the product of relation between legal and technological.
As Kaufmann-Kohler and 8 Thomas Schultz, Information Technology and Arbitration: A Practitioner’s Guide (Kluwer Law International, 2006), 6.
9 Brian Simpson, ‘Disrupting Technology, Disruptive Norms: The Role of Laws in A Digital World’, (2017) 26(1) Information & Communications Technology Law, 1-5.
10 Erica Palmerini, The Interplay between Law and Technology, or the RoboLaw Project in Context, in Erica Palmerini, and Elettra Stradella, Law and Technology: The Challenge of Regulating Technological Developments (Pisa University Press, 2013), 15.
11 Ibid.
Schultz said that internet-based information technology generates the circulation of information, including legal information, which in turn becomes the driving factor of economic and legal globalization.
In other words, ODR can be said as an information technology product that is a symbol of the global dispute resolution process.14 Related to alternative dispute resolution, Alexander stated that technology has facilitated the globalization of alternative dispute resolution (ADR) in two ways.
15 Firstly, technology is used as a tool to disseminate information and knowledge both nationally and internationally.
At this point, the alternative dispute resolution which was originally from a western country was introduced to the third world countries in order to improve the dispute resolution system in these countries as part of economic and legal reforms.
16 The second way in which technology has influenced the globalization of ADR is through the emergence of online dispute resolution (ODR).
17 ODR has many faces, from automated blind-bidding mechanism and emediators, to online mediation platforms with human facilitator and online filling and case management in court programs.
The ODR development and integration into immense transactional and system on management of conflict describes its acceptance and utility.18 12 Ibid.
13 Ibid, 15-16.
14 G. Kaufmann-Kohler and Thomas Schultz, Online Dispute Resolution: Challenges for Contemporary Justice (Kluwer Law International, 2004), 7.
15 Nadja Alexander, ‘Mobile Mediation: How Technology is Driving the Globalization of ADR’ (2006) 27 (2) Hamline Journal of Public Law and Policy, 244-245.
Available at: <http://ink.library.smu.edu.sg/sol_research/1879> 16 Ibid.
17 Ibid.
See also G. Kaufmann-Kohler and Thomas Schultz, above n 14, 7.
18 Ibid.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 30 | Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution...
The concept of Online Dispute Resolution (ODR) Online Dispute Resolution (hereinafter refers to as ODR) is an implementation of existing forms of ADR that enables its use on the Internet.19 ODR was first introduced and recognized as dispute resolution model in the earlier of the 2000s.20 Although there is no uniform definition, ODR is seen as private dispute resolution based on the consent of the parties in the same manner as alternative dispute resolution (ADR) models.
21 Notwithstanding originally meant only online disputes, the scope of ODR has later expanded to include also disputes that have risen in the offline context.22 ODR could be provided by several different intermediaries such as e-commerce platforms, private ODR 19 Susan Nauss Exon, ‘The Next Generation of Online Dispute Resolution: The Significance of Holography to Enhance and Transform Dispute Resolution’ (2010) 12(19) Cardozo J. of Conflict Resolution 20.
20 The first articles on ODR were published by Ethan Katsh as early as 1996.
See: Ethan M. Katsh, ‘Dispute Resolution in Cyberspace’ (1996) 28 Connecticut Law Review 953; Ethan M. Katsh, ‘The Online Ombuds Office: Adapting Dispute Resolution to Cyberspace’ (1996) <https://www.umass.edu/dispute/ncair/katsh.htm# fn1>.
Beside that, Katsh and Rifkin also published the first monograph on ODR in 2001 examined analyzing the role of technology as the fourth party of dispute resolution proceedings.
See: Ethan M Katsh and Janet Rifkin, Online Dispute Resolution: Resolving Conflict in Cyberspace (Jossey Bass, 2001).
21 Rule points out that the main difference between ADR and ODR lies in the role of technology, which gives the neutral third party greater control of the process.
Further, see Collin Rule, Online Dispute Resolution for Business.
B2B, ECommerce, Consumer, Employment, Insurance, and Other Commercial Conflict (Jossey-Bass, 2002), 45.
Vilalta considers that ODR has its connection points to ADR but it is also a unique Phenomenon.
See: Vilalta, ‘ODR and ECommerce’ in Mohammed S. Abdel Wahab, Ethan Katsh, and Daniel Rainey (Eds), Online Dispute Resolution: Theory and Practice.
A Treatise on Technological and Dispute Resolution (Eleven International Publishing, 2012), 115. provider, credit card companies, or private actors performing public functions, as is the case with Internet Registry for Assigned Names and Numbers (ICANN).23 ODR is an online settlement form that uses alternative methods for dispute resolution.
ODR applies information and communications technology to resolve the dispute, 24 taking place partly or entirely online.
ODR solves disputes from cyberspace as well as disputes outside of it.25 ADR processes are applied to solve the issue.
In order for the resolution to be considered as ODR, four parties have to be incorporated: initiating party (a claimant), a respondent, a neutral party and technology-based intermediary, which has been labeled as “the fourth party”26.
According to Lodder, “a fifth 22 Ethan Katsh and Leah Wing, ‘Ten Years of Online Dispute Resolution (ODR): Looking at the Past and Constructing the Future’ (2006) 38(19) University of Toledo Law Review, 27.
23 ICANN is responsible for the distribution of unique Internet Protocol (IP) address spaces which are an essential part of the structure and functioning of the Internet.
ICANN has established its own dispute resolution model called Uniform Dispute Resolution Policy (UDRP) in co-operation with World Intellectual Property Organization (WIPO).
ICANN gives a binding decision in domain name disputes which is also directly enforced by ICANN.
Because in the end, ICANN is a private organisation entrusted with responsibilities of public interest, it has been criticised for its lack of adequate accountability mechanisms.
See: Rudolf W Rijgersberg, The State of Interdependence: Globalization, Internet and Constitutional Governance (TMC Asser Press 2010), 69, 217.
24 Enas Qutieshat, ‘Online Dispute Resolution’, (2017) 18(2), British Journal of Humanities and Social Sciences, 10-20.
<http://www.ajournal.co.uk/HSpdfs/ HSvolume18(2)/HSVol.18%20(2)%20Article%2 02.pdf> 
 25 Ibid.
26 The other word, technology within ODR regarded as the fourth party of resolution process, in which its task and role vary depending on the context.
Further, the fourth party does not except in a few well-defined instances such as blind-bidding, replace the third party.
But it can be considered to https://www.umass.edu/dispute/ncair/katsh.htm#fn1 https://www.umass.edu/dispute/ncair/katsh.htm#fn1 Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... | 31 party”, the service providers for the technological elements, is also involved.27 ODR can be used for online disputes such as eBay28 user problems but it can also be used for marital dispute resolution, court disputes, and other conflicts.
ODR developed as combination of alternative dispute resolution (ADR) and information and communication technology.
Technology involved within dispute resolution in this case does not refer to court-room lamps or type writers but looks more towards such technologies as videoconferencing, 29 online platforms, complex case management systems, and ultimately legal artificial intelligence.
30 The result of ODR is a constantly developing form of dispute resolution that uses technology as a tool to satisfactorily conclude a conflict.
Actually, there is not yet official terminology and definition of ODR in international agreement.
The synonymous term of ODR is “electronic-ADR” (eADR), “online-ADR” (oADR), and “Internet Dispute Resolution” (iDR).
31 The term encompasses disputes that are partially or displace the third party in the sense that new skills, knowledge and strategies may be needed by the third party.
It may not be coequal in influence to the third party neutral, but it can be an ally, collaborator, and partner.
Further, see Ethan M Katsh and Janet Rifkin, above n 22, 93.
27 Arno R. Lodder, ‘The Third Party and Beyond.
An Analysis of the Different Parties, in Particular the Fifth, Involved in Online Dispute Resolution’, (2006) 15(2) Information & Communications Technology Law, 143-145.
28 eBay is an online market place where the sellers list items on sale and buyers may bid the items and thus enter into a binding agreement for sale of goods with the seller.
As conflicts may rise when the payment is not done or the buyer does not receive an item, eBay has included an ODR process to its website.
eBay has been solved sixty million e-commerce cases per year through its Resolution Center.
See: Mohamed S Abdel Wahab, Ethan Katsh and Daniel Rainey, ‘Introduction’, in Mohamed S Abdel Wahab, Ethan Katsh and Daniel Rainey (Eds), Online Dispute Resolution: Theory and Practice.
A Treatise on Technological fully settled over the Internet, having been initiated in cyberspace but with a source outside it.
32 The terms “online”-, “e”and “cyber-ADR” all recognize the fact that online dispute resolution has grown out of the alternative dispute resolution phenomenon.
One might even speak in terms of traditional offline ADR, on one hand, and online-, eand cyberADR applications, representing the new generation of ADR processes, on the other.
Both onlineand cyberADR highlight the use of internet-based applications in ADR, while e-ADR and eDR are broader terms referring to electronic applications of ADR.33 The presence of third parties in the ODR as mediators in reaching agreement is the important element.34 Therefore, ODR can be used in online mediation and electronic arbitration, the two most often used as electronic forms of alternative methods for dispute resolution.
Furthermore, ODR has also used a “modern form of communication” that distinguishes with traditional ADR.
From the form of modern communication, ODR is divided into two types.
35 The first type is ODR with a synchronous and Dispute Resolution (Eleven International Publishing, 2012), 2.
29 Niki Panteli & Patrick Dawson, ‘Video Conferencing Meetings: Changing Patterns of Business Communication’, (2001) 2(16) New Tech., Work & Emp, 89.
30 Riikka Koulu, Dispute Resolution and Technology: Revisiting the Justification of Conflict Management (University of Helsinki Conflict Management Institute, 2016), 94.
31 Karolina Mania, ‘Online Dispute Resolution: The Future of Justice’ (2015) 1 International Comparative Jurisprudence, 78.
32 Mohammad S. Abdel Wahab, Ethan Katsh and Daniel Rainey, above n 30, 2.
33 Nadja Alexander, ‘Mobile Mediation: How Technology is Driving the Globalization of ADR’, (2006) 1 Hamline Journal of Law and Public Policy, 248.
34 Karolina Mania, ‘Online Dispute Resolution: The Future Justice’, (2015) 1 International Comparative Justice, 78.
35 A. R. Lodder and J. Zeleznikow, Enhanced Dispute Resolution Through the Use of Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 32 | Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... communication approach, in which the disputing parties can communicate with each other in real time using possible media such as skype, teleconference, and other media.36 While the second type is ODR with an unsynchronized communication approach, where party communication is not carried out at the same time.37 Moreover, ODR system can be categorized according to the function that machinery may play.38 First generation ODR provides the important role to human being for resolving dispute.
Computational tools are evidently used, but they are seen as no more than equipment, without any autonomy or a major role in the course of action.
In such ODR, the main technologies used are instant messaging, forums, video and phone calls, videoconference, mailing lists, and more recently, video presence.
Autonomous or intelligent systems are not being used in the first generation.
The system is common nowadays and is usually supported by a web page.
It represents a first necessary step before the consideration of it that may be more autonomous, a characteristic that may be achieved through the use of intelligent system.39 The second generation of ODR is using the technological instrument effectively.
40 Such instrument is not only used to create access to information easier, but also is used to resulting ideas, organizing, creating the strategies and decision making processes.
The technologies used in this new generation of ODR system will comprise not only the Information Technology, (Cambridge University Press, 2010), 73.
36 Ibid.
37 Ibid.
38 G. Peruginelli & G. Chiti ‘Artificial Intelligence in Alternative Dispute Resolution’, in G. Sartor (Eds), Proceedings of the Workshop on the Law of Electronic Agent (LEA02) (2002).
<http://www.cirfid.unibo.it/~lea02/online.html>.
39 Ibid.
communication technologies used nowadays but also subfields of areas such as Artificial Intelligence, mathematics, or philosophy: neural networks, intelligence agents, casebased reasoning, logical deduction, argumentation, methods for uncertain reasoning and learning methods.
Thus being, the development of second generation ODR, in which an ODR system might act “as an autonomous agent” is an appealing way for solving disputes.
Thus, this generation shifts from a paradigm in which reactive communication tools are used by parties to share information, to a virtual environment in which ODR services proactively assist the disputant parties.
Therefore, it is clear that the involvement of different areas of research, namely the one of Artificial Intelligence, may evolve ODR process that will handle various types of complicated problems.
Using such technologies will be also easier to develop processes that mimic the cognitive processes of human experts, leading to more efficient ODR tools.
Digital Justice: Changing Approaches of ODR Justice systems around the world are moving away from legacy of information technological system and paper-based procedures to embrace digital technology.
This transition to so-called digital justice41 is redefining the ways in which justice is delivered.
The goal of digital justice is to clarify not only how technology generates disputes of all types, but also how technology 40 Francisco Andrade et al, ‘Using BATNAs and WATNAs in Online Dispute Resolution’ in Kumiyo Nakakoji, Yohei Murakami, Eric McCready (Eds.
), New Frontier in Artificial Intelligence, JSAI-isAI 2009 Workshops LENLS, JURISIN, KCSD, LLLL, Tokyo, Japan, November 2009, 6.
41 Ethan Katsh and Orna Rabinovich-Einy, above n 7, 3.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... | 33 can be employed to resolve and prevent them.42 In other words, technology can solve the problems created by technology.
43 Unburdened by the old processes and procedures, this digital justice system of tomorrow promises to be more efficient, fairer, and less expensive.
Judicial procedure affects the perceptions of judicial fairness.44 According to Amy Gangl, there are three factors affect the assessment of the legitimacy of a judicial decision.
45 First, individuals must believe that the decision-making process takes their views into account.
46 Second, decisionmaking should be neutral and all opinions must be granted equal consideration without favoritism.
47 Third, citizens must trust the judicial system and its representatives.
48 Parties’ satisfaction with the procedural justice affects their perception of legitimacy over and above their preferred outcome.
Thus, citizens’ favorable perception of the fairness or justice of the process increases the likelihood that they will report satisfaction 42 Ibid.
43 Mary Anne Franks, ‘Justice beyond Dispute’, (2018) 131 Harvard Law Review, 1380.
44 John Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis (Lawrence Erlbaum Associates, 1975).
45 Amy Gangl, ‘Procedural Justice Theory and Evaluation of Lawmaking Process’, (2003) 25(119) Pol.
Behav, 121.
46 Ibid.
47 Ibid.
48 Ibid.
49 Ibid, 127.
50 The term “algorithm” is assigned disparate technical meanings in the literatures of computer science and other fields.
In computer science, algorithms defined as separate from mathematical formulae in that (1) they must “always terminate after a finite number of steps”; (2) “each step of an algorithm must be precisely defined; the actions to be carried out must be rigorously and unambiguously specified for each case”; (3) input to the algorithm is “quantities that are given to it initially before the algorithm begins”; (4) an algorithm’s output is “quantities that have a specified relation to the inputs”; and (5) the operations to be performed in the algorithm “must with the process of decision-making and the decision itself.
They are more likely to accept outcomes when the process is perceived favorably.
49 Implicitly, individuals accept that in an adversarial situation, sometimes one wins and sometimes one loses.
However, such acceptance is only possible when everyone has a fair hearing in the decisionmaking process.
As technology developed and algorithms50 could play an important role in tailoring the dispute resolution process to party needs, preferences, and interests, ODR came to represent a deep shift from traditional dispute resolution, laying the foundation for realizing digital justice, offering fair and efficient processes that are designed for the digital era.
ODR emerged from an online environment that was rich with misunderstandings and disputes, but deficient in avenues for effectively addressing them.51 Originally, developers of ODR mechanisms sought to mimic traditional ADR processes and offer online all be sufficiently basic that they can in principle be done exactly and in a finite length of time by someone using pencil and paper.” Further, see Donald E. Knuth, The Art of Computer Programming: Fundamental Algorithms (Addison-Wesley, 1968), 6.
Similarly and more simply, a widely used computer science textbook defines an algorithm as “any well-defined computational procedure that takes some value, or set of values, as input and produces some value, or set of values, as output.” See: Thomas H. Cormen et al., Introduction to Algorithms (MIT Press, 2001), 10.
By contrast, communications scholar, Nicholas Diakopoulos, defines algorithms in the narrow sense as “a series of steps undertaken in order to solve a particular problem or accomplish a defined outcome,” and in the broad sense, saying that “algorithms can arguably make mistakes and operate with biases.” Further, see: Nicholas Diakopoulos, ‘Algorithmic Accountability: Journalistic Investigation of Computational Power Structures’, (2015) 3 Digital Journalism, 400.
51 Orna Rabinovich-Einy & Ethan Katsh, ‘Access to Digital Justice: Fair and Efficient Progress for the Modern Age’, (2017) 18 Cardozo J. of Conflict Resolution, 646.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 34 | Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... equivalents to these dispute resolution channels.
This was evidenced in the early attempts to offer equivalents of familiar offline ADR processes such as negotiation, mediation, and arbitration.
More significantly perhaps, the desire to imitate traditional processes was evident in the principal assumption underlying the design of ODR systems: such processes would be appropriate solely for small value, large scale, non-emotional, e-commerce disputes where the reduced privacy of communications and the lack of rich face-to-face communication would be less important.
Over time, it became clear that the new generation ODR processes came to celebrate the unique qualities of online interaction and the shifts associated with the transition to digital means of addressing conflict: (1) the shift from physical to online communications, (2) the shift from a human “third party” to the “fourth party,” (3) the shift from a “data-less” mentality to processes that revolve around data;52 and (4) the shift from human decision making to the intelligence of the machine.
While many of these features were initially viewed as shortcomings, over time they have come to be seen as potentially advantageous.
Thus, for example, while the lack of physical interaction reduces the richness of communication, it also conveys advantages for those who benefit from asynchronous communication (time to consult and conduct research before replying).
Similarly, the decrease in privacy due to documentation can assist in quality control and dispute prevention efforts.
The intelligence of the machine can enhance efficiency through automation, allowing ODR systems to handle staggering numbers of small-scale conflicts.
52 Ibid.
53 Ethan Katsh & Janet Rifkin, Online Dispute Resolution: Resolving Conflicts in Cyberspace (Jossey-Bass, 2001) 94.
Further, each of the shifts associated with ODR holds enormous potential for increasing access to justice.
Each also creates opportunities for frustrating access and giving rise to digital injustice.
On the one hand, efficiency and justice can be enhanced by enabling easy, distant, and round the clock communication without having to miss work and pay for travel.
The simple language and tailored options offered in the newly designed platforms also allow nonrepresented parties to better understand their rights and options and figure out their interests and needs.
In addition, the enhanced capacity associated with the “fourth party”53 that is not dependant on human capacity or on physical space allows for huge numbers of claims to be processed, allowing access to some avenue of dispute resolution for problems that in the past were in the “lump it” category.
Also, the pre-designed algorithmic options and pre-configuration associated with software can help curb some of the biases associated with human decisionmaking resulting, perhaps, in more fair outcomes for various parties.
Often, big data can allow monitoring the quality of processes and outcomes, uncovering biases and problems in the operation of dispute resolution algorithms, and even allowing for dispute prevention.54 Instead of waiting for human third parties to analyze their experiences post-dispute resolution, the data on disputes can signal disputes before parties are aware of them, in some cases, even before they occur.
54 Gauthier Vannieuwnhuyse, ‘Arbitration and New Technologies: Mutual Benefits’ (2018) 35(1) Journal of International Arbitration 119-129.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Latifah, Bajrektarevic, Imanullah The Shifting of Alternative Dispute Resolution... | 35 IV.
CONCLUSION AND SUGGESTION ODR came to represent a deep shift from traditional dispute resolution, laying the foundation for realizing digital justice, offering fair and efficient processes that are designed for the digital era.
ODR emerged from an online environment that was rich with misunderstandings and disputes, but deficient in avenues for effectively addressing them.
Various features of ODR that were initially viewed as short-comings, such as documentation, are now seen as potentially advantageous by facilitating better monitoring, quality control, consistency, and a higher degree of transparency in informal dispute resolution.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.06 | 225 Protection of Interests of Children: The Roles of Religions and Legal Regimes Akintunde Abidemi Adebayo Faculty of Law, Adekunle Ajasin University, Akungba-Akoko, Nigeria Email: akintunde.adebayo@aaua.edu.ng Submitted : 2019-12-24 | Accepted : 2020-09-10 Abstract : Religion provides the basis for the protection of human rights, namely, right to life, dignity of human person, right to property, among others.
Without prejudice or disrespect to other religions, this paper focuses on Christianity religion and protection of rights of children considering their vulnerability.
To this end, the Holy Bible provides for measures to safeguard, protect and ensure the good as well proper upbringing of children.
Similarly, the United Nations Convention on the Rights of the Child, OAU Charter on the Rights and Welfare of the Child and the Child Rights Act provide for protection of rights of children.
The essence of these provisions is to ensure the smooth running of the society and betterment of humanity.
Therefore, this paper examines the salient provisions to safeguard and protect rights and interests of children in Christianity as well as under the aforementioned legal regimes.
It concludes that while not undermining the significant role of laws in the protection of rights of children, religion plays an augmenting role of protecting the interests of children by instilling in members of the society, the needed respect for humanity and morality which is mostly lacking in the modern era.
It recommends among other things that, government at all levels as well as religious leaders should give priority attention to the protection of children.
Keywords: child; human rights; christianity; religion; rights of children.
I.
INTRODUCTION Religions have provided the foundation and basis for human rights, mutual respect and cooperation, morality and peaceful coexistence in the society.
They have special provisions and measures to safeguard and protect the interests of the vulnerable groups namely, children, women and the elderly ones.
They emphasise dignity of humanity and life, morality, responsibilities and according respect/honour to one’s parents, among others.
The protection of children from violence, ensuring the overall well-being of children are some of the salient tenets of many religions.
In addition, they also play a vital role of augmenting the provisions of the legal frameworks on the protection of children through instilling of respect for life and humanity in members of the society.
mailto:akintunde.adebayo@aaua.edu.ng 226 | Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes For the purpose of this paper, the discourse will without prejudice to other religions be limited to Christianity.
II.
LEGAL MATERIALS AND METHODS This research is a legal research using the doctrinal approach.
Legal materials used in this research are primary legal materials and secondary legal materials.
Primary legal materials include Christian child protection regulation inside the Holy Bible, Nigerian Constitution 1999 and Nigerian Child Rights Act 2003.
Secondary materials include reports, journal articles and other relevant sources.
III.
RESULT AND DISCUSSION Protection of Children in Christianity In Christianity, the importance of children cannot be overemphasised.
They are considered as precious gifts from God and not burden.
1 To this end, there are many scriptures in both the Old and New Testaments of the Holy Bible which underscore the need and importance of protecting the interests and rights of the child as well as seeing to their utmost care and well-being.
A rights-based approach does not mean that children take on a role of simply demanding what they want and stop respecting adults.
In fact, Christian community is the ideal environment for recognizing children’s rights but also teaching them about the responsibilities that accompany rights.
For example, where children have a right to be listened to, they also have a responsibility to listen to others; where they have a right to go to school, it is their responsibility to attend school and to do 1 Isiaiah 8:18; Genesis 33:5; Hebrews 2:13.
2 Isiaiah 54:13.
3 Exodus 1:17 their best.
Children should be given a chance to express both their rights and their responsibilities in the society.
Some salient provisions of the Holy Bible will therefore, be examined in an attempt to do justice to the discourse on protection of interests of the child in Christianity.
Therefore, these rights are to be viewed in the context of God’s deep love for children and the high value he places on their well-being, and the contribution they can make.
Rights of children in the Bible can be divided into four categories namely, survival, protection, development and participation rights.
That is include: a.
Survival Rights In the Old Testament book of Isaiah, the Bible emphasises the safeguards for children and their descendants yet unborn.2 The story of Moses’ birth in the book of Exodus is illustrative here.
It shows how God uses all kinds of people to ensure the survival of a child.
The statement, “the midwives feared God... they let the boys live”3 shows that God values the lives of children.
God already has plans for Moses’ life and when Moses was born, he was protected by his mother, his sister, and even the daughter of Pharaoh.4 God’s heart is for children to live and have all they need to survive and thrive.
The Bible has diverse accounts of children whose lives were in danger and who were enabled to survive with God’s help.
For instance, the widow’s son was brought back to life by Elijah5 and by Elisha.6 Again in the New Testament, Paul brought a child back to life; “Paul went down, threw himself 4 Exodus 2.
5 1 Kings 17 6 2 Kings 4 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes | 227 on the young man and put his arms around him.”7 Jesus further demonstrated his love for children and desire for them to live during his earthly ministry.
He healed children and brought them back to life in instances where they were dead.
8 In the book of Mathew, Jesus informs his listeners that, “In the same way, your Father in heaven is not willing that any of these little ones should perish.”9 On the need for parents to have and maintain a cordial and loving relationship with their children in order to ensure a peaceful coexistence and a violence free society, the Bible provides thus: “The Lord will turn the hearts of the fathers to their children, and the hearts of the children to their fathers…”10 The Holy Bible further makes it an obligation for parents, particularly mothers to comfort, love and look after the well-being of their children thus: “As a mother comforts her child, so will I comfort you; and you will be comforted over Jerusalem”11 Also, emphasis was laid on the sanctity of life, particularly children in the book of Deuteronomy of the Old Testament of the Holy Bible thus: “This day, I call heaven and earth as witnesses against you that I have set before you, life and death, blessings and curses.
Now choose life, so that you and your children may live.”12 God expressed his displeasure with children being deliberately killed or sacrificed 13 and God’s heart is clear in Isaiah’s prophecy that “Never again will there be... an infant who lives but a few days.” 14 In light of the earlier mentioned scriptures condemning child sacrifice, it is 7 Acts 20:10 8 Luke 8:54, Matthew 9:25, Mark 5:41, Luke 9:42, Matthew 17:18 and Mark 9:26-27 9 Matthew 18:14 10 Malachi 4:6.
11 Isiaiah 66:13.
12 Deuteronomy 30:19. important to stress that, God’s command to Abraham to sacrifice his son, Isaac in the book of Genesis is not an endorsement of child sacrifice; God prevented the sacrifice from taking place and gave the command as an opportunity for Abraham to demonstrate his obedience.
15 God’s anger is provoked when a child’s life is needlessly or deliberately taken, and indicate to us how precious the lives of children are to God.
“The people of Israel and Judah have provoked me by all the evil things they have done... they built high places for Baal in the Valley of Ben Hinnom to sacrifice their sons and daughters to Molek, though I never commanded —nor did it enter my mind — that they should do such a detestable thing and so make Judah sin.”16 On care and provision for the child, the Holy Bible in the New Testament book of Mathew emphasises that a father is obliged and expected to love, care for and provide for his children.
It therefore becomes the right of children to be cared for and provided for by their parents.
“If you, then who are evil know how to give good gifts to your children, how much more will your father in heaven give good gifts to those who ask Him.”17 Further, men were encouraged to have the size of family they can easily maintain and provide for.
They must not have too many wives or children such that, they will not be able to provide for their needs, train, guide, teach and nurture.
To this end, the New Testament of the Bible says: “a deacon must be the husband of but one wife and must manage his 13 Amos 1:13 and Psalm 94:6; Jeremiah 7:30-31, 19:5, and 32:35, Ezekiel 16:20, 20:31, and 23:37-39 14 Isaiah 65:20 15 Genesis 22; James 2:21-23.
16 Jeremiah 32:35 17 Mathew 7:11 228 | Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes children and household well.”18 Also, in the second letter of Paul to the Corinthians, the Bible records thus: “…after all, children should not have to save up for their parents, but parents for their children.”19 b.
Protection Rights The story of Ishmael told in Genesis shows us the importance of protecting the interest of children to God, and how he can be intimately involved in keeping children safe.
20 More importantly, the Bible places high premium and value on children.
They are to be protected, loved, treasured and cherished by their parents and members of the society in which they live in.
It says thus: “Whoever welcomes one of these little children in my name welcomes me.” 21 To further show the value and importance of children, child-like qualities were described as godly qualities.
For instance, “…because you have hidden these things from the wise and learned and revealed them to little children…”22 Jesus further demonstrated his love for children and showed their importance in the book of Mark where He says: “…he said to them, let the little children come to me, and do not hinder them, for the kingdom of God belongs to such as these”23 and “And he took the children in his arms, put his hands on them and blessed them.”24 Similarly, on the significance of children, the Bible describes them in diverse beautiful ways.
For instance, in the book of Joel, they were described as prophets.
25 18 1 Timothy 3:12.
19 2 Corinthians 12:14.
20 Job 24:9, Nehemiah 5:5, and Joel 3:3.; Joel 3:3; Isaiah 21:8-20.
21 Mark 9:37.
22 Luke 10:12; Mathew 11:25.
23 Mark 10:14.
24 Mark 10:16; Mark 10:15; Acts 2:39.
25 Joel 2:28.
26 Psalm 127: 3-5.
27 Psalm 128:3.
Further, they were described as heritage and reward from God.
In the book of Psalms, children were described as arrows in the hands of a warrior and blessed is the man whose quiver is full of them for they shall not be put to shame when they contend with their enemies.26 Also, “…your sons will be like olive shoots around your table” 27 and “Children’s children are a crown to the aged, and parents are the pride of their children.”28 The Bible clearly speaks out against the mistreatment of children.
References were made to instances where children have been sold as slaves or traded like commodities, in the Bible.
“They traded boys for prostitutes, they sold girls for wine to drink.” 29 Vulnerable children particularly are to be protected with warnings against oppressing and mistreating the fatherless.30 Further, the Bible enjoins members of the society to protect children.31 In the Bible, the Israelites were instructed to ensure that vulnerable children are provided for.
32 “Defend the weak and fatherless.”33 Further, as part of the protection of the interests of children, the Bible condemns those who cause harm or misguide children into destructive paths.
“But if anyone causes one of these little ones who believe in me to sin, it would be better for him to have a large stone hung around his neck and be drowned in the the depth of the sea.”34 Protecting children is not only the responsibility of parents or those who work with children but the entire society.
35 The 28 Proverbs 17:6; Proverbs 20:7.
29 Isaiah 10:2, Ezekiel 22:7, Jeremiah 7:6 and 22:3, Zechariah 7:10 and Malachi 3:5; Matthew 18:6, Mark 9:42 and Luke 17:2 30 Deuteronomy 24:17-21 31 Deuteronomy 24:17-21 32 Psalm 72:4 and 82:3, Isaiah 1:17 and James 1:27 33 Psalm 82:3 34 Mathew 18:6.
35 Leviticus 20:22-25 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes | 229 Bible shows that God wants every member of the community to be part of ensuring that the children around them are safe and protected from harm.36 God talks about how someone who has sacrificed his child should be punished, and says, if the members of the community ignore the actions of the said man, and if they fail to put him to death, God said he will himself set his face against him.
Therefore, we all must make sure we are not ignoring situations of abuse and exploitation of children in our society.
c. Development Rights Parents owe the duty to direct aright and shapen the lives and behaviours of their children properly through teachings, trainings and discipline.
It is pertinent to note that, in Christianity, children are seen as prone to disorder and misbehaviour therefore, require constant corrections, guidance and discipline.
Also, children are considered born with original sin, sinfulness in their inheritance so, education, chastisement, trainings are required to discipline and tame them.
The Bible in the book of Proverbs says: “Train a child in the way he should go and when he is old, he will not depart from it.” 37 The same duty of physical discipline and chastisement of children to make them responsible and law abiding members of the society was further emphasised thus: “Folly is bound up in the heart of a child but the rod of discipline will drive it far from him.”38 It is also written in another portion of the Holy Bible thus: “Do not withhold discipline from the child; if you punish him with the rod, he will not die.”39 36 Leviticus 20:22-25 37 Proverbs 22:6.
38 Deuteronomy 22:15.
39 Deuteronomy 22:13.
40 Deuteronomy 22:14; Ephesians 6:4.
Similarly, “punish him with the rod, and save his soul from death.”40 Again, parents and their children were encouraged and commanded to be law abiding.
Furthermore, parents particularly have an obligation to ensure that their children are law abiding and obedient to lawful authorities bearing in mind that if children and other members of the society abide by the extant laws, regulations and commandments, there will be peace and tranquillity in the home fronts and the larger society.
Deuteronomy 32:46 says: “he said to them, take to heart all the words, I have solemnly declared to you this day, so that you may command your children to obey carefully all the words of this laws.” In the same vein, the same book of Deuteronomy further states the importance and benefits of abiding by laws thus: “For I command you today, to love the Lord your God, to walk in his ways and to keep his commands, decrees and laws, then you will live and increase, and the Lord God will bless you in the land you are entering to possess.”41 The Holy Bible urges children to submit themselves to the guidance, teachings and trainings of their parents so that through these guidance and trainings, they can be moulded to become responsible adults who will pass on the same legacy to their descendants.
In the book of Proverbs, it is written thus: “Listen to your father who gave you life and do not despise your mother when she is old.”42 Also, “The rod of correction imparts wisdom but a child left to himself disgraces his mother”43 and “…teach them to your children and to their children after them.” 44 Still on submission to parental 41 Deuteronomy 30:16.
42 Proverbs 23:22.
43 Proverbs 29:15.
44 Deuteronomy 4:9.
230 | Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes guidance and trainings, the Holy Bible says: “These commandments that I give you today are to be upon your hearts, impress them on your children, talk about them when you sit at home, when you walk along the road, when you lie down and when you get up.” 45 So also, in the New Testament book of Mark, children are encouraged to honour their parents and by extension, all and sundry in the society as this will promote orderliness and peaceful existence in the society.
46 In addition, children were encouraged to honour their parents and it is a condition for them to live long.
It follows therefore that, there are rewards and blessings attached to that obligation.47 d. Participation Rights Children are to be given a sense of belonging and a right to participate in the affairs of the society.
For instance, in the book of Second Kings, it was Naaman’s servant girl who he had taken captive from Israel who gave Naaman the advice that if only he could see the servant of God, Elisha, he may be cured of his leprosy and Naaman listened and was cured.
48 Sometimes, God works through children.
Children and young people are therefore, encouraged to lead and to speak, and not to see their age as an obstacle.
Children are a blessing to a society and should be valued as such.49 Children are also a significant part of the religious community, participating along with adults.
50 Children should be actively engaged and allowed to 45 Deuteronomy 6:5-7; Colossians 3:21.
46 Mark 7:10.
47 Colossians 3:20; Ephesians 6: 1-3.
48 2 Kings 5:2-3 49 Ruth 4:15, Psalm 37:26, Isaiah 29:23 50 Deuteronomy 31:12-13, Joshua 8:35, Nehemiah 12:43, Psalm 148:11, Joel 2:16 and 10:7, Matthew 21:15, John 4:46-53, Acts 16:33, 18:7, 21:5.
51 Joshua 4:6 ask questions.
51 The praise of children is powerful.52 The Bible gives many examples of children being used by God: Joseph was only 17 (Seventeen) when God was using him to help his father sherpeherd the flocks53 David was a “little more than a boy” when he fought Goliath, the mighty man of Philistine and defeated him.
54 Samuel served God as a child and God chose to speak through him.55 Also, Josiah was 8 (eight) years old when he became King.
56 Uzziah was 16 (sixteen) years old when he also started reigning as king.57 It is pertinent to point out that, it was a child who provided the 5 (five) loaves and 2 (two) fishes which Jesus used to feed the 5,000 people.58 Another clear illustration of God’s willingness to use children and allow them participate in everyday life of the society is God choosing to restore mankind to Him by allowing Jesus to come to the world as a baby.59 “For to us a child is born, to us a son is given, and the government will be on his shoulders.”60 In general, it is apparent that the Holy Bible contains several provisions on protecting the interest and overall well-being of children considering the fact that they are precious yet vulnerable, therefore, need to be protected.
The Old Testament portrays the child as one who is overly lacking in wisdom consequently, in need of constant guidance and training.
The New Testament on the other hand, projects the child as precious gift 52 Psalm 8:2.
53 Genesis 37:2 54 1 Samuel 17:41 55 1 Samuel 2-3 56 2 Kings 22 57 2 Chronicles 26 58 John 6: 9-11; Jeremiah 1:7, 1 Timothy 4:12 59 Matthew 2:11, Luke 2:8-40 60 Isaiah 9:6 .
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes | 231 from God that must be cherished, protected, loved and cared for.
Protection of Rights of Children under International, Regional and National regimes The protection of rights of children under international, regional and national legal regimes is important.
In examining these rights, this paper considers the United Nations Convention on the Rights of the Child (hereinafter referred to as the UN Convention on the Rights of the Child) as adopted by the 44th session of the United Nations General Assembly in November 1989 and ratified by Nigeria as member state in March 1991.
61 It also considers the provisions of the Organization of African Unity (now African Union) Charter on the Welfare of the Child (hereinafter referred to as the OAU Charter on the Welfare of the Child) to which Nigeria is also a signatory.62 It is the first regional treaty on the rights of children in the continent of Africa.63 It has similar provisions with the United Nations Convention on the Rights of the Child.
These regional and international instruments seek to protect the child in all areas, provision of basic necessities of life and giving special attention and care to the vulnerable children.64 61 UN Convention on the Rights of the Child adopted by the 44th session of the United Nations General Assembly in November 1989.
62 OAU Charter on Rights and Welfare of the Child, Doc.
CAB/LEG/24.9/49 (1990) entered into force November 29 1999.
63 Ibid.
64 Agiobu-Kemmer, ‘Baby Prisoners – How they fair in Captivity’ Nigerian Guradian Newspaper of 19 June 2016 available online at <http://m.guardian.ng/sunday-magazine/babyprisoners-how-they-fair-in-captivity/> accessed 22 November 2019.
65 Nigerian Child Rights Act 2003.
66 Constitution of the Federal Republic of Nigeria 1999, Chapter IV.
See also Child Rights Act 2003, s 3.
Nigeria as a nation has also put in place several measures and framework towards the protection of the Nigerian child.
Of particular note is the Child Rights Act 65 which is meant to protect the rights of the child as guaranteed under the Constitution of Nigeria 1999.66 Since the issue of protection of children is contained on the residual list in the Nigerian Constitution, it is expected that states will domesticate it in their respective states having being enacted as an Act of the National Assembly of the Federal Republic of Nigeria.
While some states have gone ahead to do so, a large number of them have not.67 The rights of children are said to be divided into three major categories.
They are: Welfarewhich means the right to be provided for; Protection – it means children must be kept safe from all forms of dangers, exploitations or abuse and lastly, Autonomy – the right of children to make choices.
68 Some of the basic rights of children are: a.
Right to Life Every child shall have the right to life.
69 The State will ensure the overall development and survival of the child.70 A child shall not be sentenced to death, irrespective of the crime.71 The life of a child could be threatened, jeopardised or taken in 67 OL Niyi-Gafar and OB Igbayiloye, ‘Adopting a Rights-Based Approach Towards the Legal Protection of the Nigerian Child’ (2016) 4 (1) Akungba Law Journal, 78.
68 Smaranda Olarinde, ‘Reflections on the Basic Rights of the Nigerian Child under the Child Rights Act, 2003’ (2005) 4 University of Ibadan Journal of Private and Business Law, 87.
69 The Constitution of the Federal Republic of Nigeria 1999, s 33; UN Convention on the Rights of the Child 1989, art VI (1) and (2).
See also OAU Charter on the Rights and Welfare of the Child 1990, art V (1).
70 Child Rights Act 2003, s 4.
71 Ibid.
http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ 232 | Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes several situations.
In reality, a common situation in Nigeria whereby a child is allowed to stay with his or her imprisoned mother in prison custody thereby exposing such a child to starvation, sexual abuse, inhuman, cruel, degrading, unhygienic conditions and lack of access to health care which could lead to diseases and death of such a child is a violation of the right of the child to life.72 Children are the leaders of tomorrow, there is the need to protect the rights to life of every child.73 b.
Right not to be separated from Parents or Guardians A child shall not be separated from his parents or legal guardians except where it has been determined by a competent judicial authority that such a separation would be in the best interest of the child.74 It is trite that, this provision is a very laudable one as it will ensure that a child is not forcibly separated from his or her parents and that parents have the opportunity to nurture, care for and properly bring up their children.
75 It will also ensure that children get the best of care, protection and development from their parents and legal guardians under a good atmosphere.
76 Therefore, the common occurrence in many countries whereby children are forced to live with extended family members, friends or even given up to 72 S Agiobu-Kemmer, above n 64.
73 Ibid.
74 UN Convention on the Rights of the Child 1989, arts IX (1) and XX; OAU Charter on the Rights and Welfare of the Child 1990, art XIV; Child Rights Act 2003, ss 14, 16 and 27.
See also S Agiobu-Kemmer , above n 64.
75 Bangkok Rules, r 58; RA Aborisade and OO Balogun, ‘Dual Punishment: Mothers in Nigerian Prisons and their Children’ (2016) 19 (1) African Journal for the Psychological Study of Social Issues, 1.
76 OAU Charter on the Welfare of the Child 1989, art IV; RA Aborisade and OO Balogun, ibid, 1-2. government welfare departments as a result of the disagreements, separation or divorce between their parents is unhealthy for the overall development and protection of the child so should be discouraged.
c. Right to Freedom of Expression Every child shall be free to seek, receive and impart information within the ambit of the law.77 This right must not be curtailed in any form as every child must be free to express himself or herself, freely impart information and ideas without any fear, threat or insecurity.78 Where this right is exercised, it will further help in the mental, physical and psychological development of the child.
d. Freedom of Thought, Religion and Conscience Every Nigerian shall have the right to thought, religion and conscience.
79 It is pertinent to State that the Nigerian child is not exempted from the enjoyment of this right.
80 However, the parents and legal guardians of children shall provide direction and guidance to their children when it comes to the enjoyment of this right.
81 While admitting that this right exists, generally, it must be stated that children have limits to which they can independently practice, propagate or express their religious beliefs, 77 Constitution of the Federal Republic of Nigeria 1999, s 39 (1); UN Convention on the Rights of the Child 1989, art XIII.
See also OAU Charter on the Rights and Welfare of the Child 1990, art VII.
78 S Agiobu-Kemmer, above n 64.
79 Constitution of the Federal Republic of Nigeria 1999, s 38; IKE Oraegbunam, ‘Islamic Law Religious Freedom and Human Rights in Nigeria’ (2012) 2 (1) African Journal of Law and Criminology, 1.
See also OAU Charter on the Rights and Welfare of the Child 1990, art IX (1) and (2).
80 Child Rights Act 2003, s 7; S Agiobu-Kemmer above n 64.
81 S Agiobu-Kemmer, above n 64.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes | 233 they need to be properly guided by their parents or legal guardians.82 e. Right to Freedom of Association and Peaceful Assembly Every child shall have the right to freely associate with other children and to join peaceful assemblies within the limits of the law.83 For instance, a child should be free to associate with other children for recreation, for the purpose of education and learning, in schools, religious places of worship, residential areas, among others.
It must also be stressed that, a child may need the guidance and consent of their parents or legal guardians in the exercise of this right and 84 the violation will be contrary to the standard expected for the treatment of children.85 f. Right to Privacy and Family Life Every child shall have right to privacy, family life and correspondence.
86 There shall not be any arbitrary or unlawful interference with the enjoyment of this right.87 They shall not be forced to live with persons other than their parents or legal guardians against their will or be in a place that they do not want to be.
For instance, this right will be curtailed in a situation where an innocent child would have to stay and grow in prison custody because his or her mother is remanded in custody pending her trial in 82 RA Aborisade and OO Balogun, above n 75, 2-4.
83 UN Convention on the Rights of the Child, art XV; OAU Charter on the Rights and Welfare of the Child, art VIII; Child Rights Act, s 6.
84 S Agiobu-Kemmer, above n 64.
85 Ibid.
86 Constitution of the Federal Republic of Nigeria 1999, s 37; Child Rights Act 2003, s 8.
See also Bangkok Rules, r 64.
87 UN Convention on the Rights of the Child 1989, art XVI; OAU Charter on the Rights and Welfare of the Child 1990, art IX.
court or serving prison sentence as it common in Nigeria.88 g. Right of Access to Information Every child shall be entitled to information from international and national sources which are capable of promoting the emotional, spiritual, moral, social and physical well-being of the child.89 It must be noted that any violation of this right will invariably have an adverse effect on the overall development of a child who finds himself or herself in this kind of situation as such a child may not be able to compete favourably with his or her peers who have supervised access to information that could help them to develop and grow.90 h. Right to Education Every child shall have right to be educated.
91 In doing this, there should be focus on the personality, talents, physical and mental abilities of each child.92 He or she should be taught about respect for human rights, preservation of societal culture and values, tolerance, mutual respect, honesty, loyalty, respect for the environment, among others.93 Having said that, the sad reality in many countries, particularly the developing ones is that many children of school age are out of school due largely to poverty, illiteracy, ignorance, among others.
94 A child who not educated may end up as miscreant or criminal who will constitute a 88 RA Aborisade and OO Balogun, 4; S AgiobuKemmer, above n 64.
89 UN Convention on the Rights of the Child 1989, art XVII.
90 UN Convention on the Rights of the Child 1989, art XVII.
91 Child Rights Act 2003, s 15.
92 UN Convention on the Rights of the Child 1989, arts XXVIII and XXIX.
93 OAU Charter on the Rights and Welfare of the Child 1990, art XI.
94 Child Rights Act 2003, s 15.
234 | Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes problem for the society in future.95 Having posited that every child has a right to education, it is also imperative to state that the governments at all levels must put the appropriate measures in place such as provision of free and compulsory education up to tertiary education level, provision of studying materials, recruiting competent teachers to teach in schools, training and retraining of teachers, among others.
i.
Right to Health Care A child shall have the right to enjoy the highest attainable standard of health.96 The government therefore, must ensure it provides necessary health care services to the child, reduce infant and child mortality rate, combat diseases and malnutrition, provide safe drinking water, ensure quality health care for pregnant women and nursing mothers, among others.
97 It has been observed that the Nigerian State and indeed many developing States have not faired well when it comes to the realization of this right.98 Most children do not have access to good health care; some of them consequently develop very dangerous diseases while others who are unlucky die.99 A large percentage of children in the developing countries are subjected to live in very unhygienic environments.
100 Sometimes, pregnant women lack adequate pre-natal attention and 95 Ibid.
See also Agiobu-Kemmer, above n 64.
96 UN Convention on the Rights of the Child 1989, art XXIV; Child Rights Act 2003, s 13.
97 OAU Charter on the Rights and Welfare of the Child 1990, art XIV.
98 MA Araromi, ‘Prisoners Rights under the Nigerian Law: Legal Pathways to Progressive Realization and Protection’ (2015) 6 (1) Afe Babalola University Journal of Sustainable Development, Law and Policy, 177-179, 170 99 S Agiobu-Kemmer, above n 64.
100 Ibid.
101 RA Aborisade and OO Balogun, above n 75, 5.
102 MA Araromi, above n 89, 179.
103 Constitution of the Federal Republic of Nigeria 1999, s 42; UN Convention on the Rights of the sometimes left unattended to when delivering their babies.
101 Some of the babies after delivery do not even get adequate medications and immunization.102 j.
Freedom from Discrimination Every child shall be free from discrimination on the account of the circumstances of his birth, parents’ origin or race, ethnic, religious, sex, among others.103 Therefore, the common Nigerian practice of calling some children who were born outside wedlock ‘bastards’ will amount to discrimination against them based on the circumstances of their birth.
Similarly, a situation whereby a child has to live with his or her mother by virtue of the mother’s imprisonment will amount to a violation of the child’s right not to be discriminated upon on any account.104 It will mean that such a child has been discriminated against based on the status of the mother as a prisoner.
105 This is against the acceptable international standard.106 k. Protection from Sexual Exploitation and Abuse Every child shall be entitled to protection from sexual abuse and exploitation.107 As of today, this particular right stands as the most violated right of the child in Nigeria going by the high statistics of Child 1989, art XXX.
See also OAU Charter on the Rights and Welfare of the Child 1990, art III; Child Rights Act 2003, s 10.
104 DI Dimkpa, ‘The Plight of Women Inmates in Rivers State, Nigeria’ (2011) 31 (1) Pakistan Journal of Social Sciences, 110-111.
105 Ibid.
106 OAU Charter on the Rights and Welfare of the Child 1990, art III; Child Rights Act 2003, s 10; UN Convention on the Rights of the Child 1989, art XXX.
107 UN Convention on the Rights of the Child 1989, art XXXIV.
See also OAU Charter on the Rights and Welfare of the Child, arts XVI and XXVII; Child Rights Act 2003, ss 11 (a) -(b), 31 and 32.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes | 235 sexual assault and molestation of children, particularly the female gender.
Apart from the aforementioned, it is also common in developing countries to find female children who are not up to the legal age of consent for marriage are also given out in marriage to male adults by their parents or legal guardians.
Therefore, the parents or legal guardians of children must rise up to this challenge by providing adequate guide and protection to their children.
108 They must ensure that their children are not in an environment where can be exposed to some dangerous elements and paedophiles who could easily abuse them sexually.
Also, parents, particularly illiterates must be enlightened about the dangers of giving out a female child to an adult male in marriage.109 Protection from Illicit Use of Narcotics and Drug Trafficking Every child shall be protected from the illicit use and trafficking of narcotics.110 For instance, children of female inmates of Nigerian prisons cannot be guaranteed of this right as they exposed to illicit use of narcotics considering the environment and the calibre of persons who often times such a child spends time with in the prison.
111 This situation is not good for the overall development and future of the child.
112 It must be said that the protection envisaged by this right will only be realized where a child grows up in a sane and serene society.
113 Closely connected to the this right is the fact that children must be taught early in life 108 ‘Sexual Exploitation of Children in Nigeria Submission 29 March 2018’ Human Rights Council 31st Session (October – November 2018), 2-3.
109 ‘Country Report on Human Rights Practices 2017–Nigeria,’ Document No.
1430111US Department of State, available online at <http://www.ecoi.net> accessed 27 December 2018. about the dangers of using, dealing in or handling of hard drugs as these lessons with remain with them as they grow into adulthood.
Likewise, parents or legal guardians of children must also provide good examples in this regard as children have the propensity to do what they see their parents or legal guardians do.
IV.
CONCLUSION AND SUGGESTION Prior to the advent of what is now known as legal rights in the contemporary time, religion played a vital role of protecting and shielding children from disrespect to humanity and ill-treatment by their parents and members of the larger society.
The Holy Bible particularly contains many provisions on protecting the interest and overall wellbeing of children considering the fact that they are vulnerable and need to be protected.
The Old Testament particularly describes the child as one who is overly lacking in wisdom therefore, in need of constant guidance and training of their parents.
The New Testament on the other hand, projects the child as a precious gift from God that must be cherished, protected, loved and cared for.
Interestingly, strict adherence to the principles of religion particularly in the areas of respect for life and humanity could serve as the needed panacea to most of the challenges which children are faced with globally.
Therefore, religion plays a significant role of protecting the interests of children by instilling in members of the society, the needed respect for humanity and 110 UN Convention on the Rights of the Child 1989, art XXXIII; OAU Charter on the Rights and Welfare of the Child 1990, art XXVIII; Child Rights Act 2003, ss 14 and 25.
111 Agiobu-Kemmer, above n 64.
112 Ibid.
113 UN Convention on the Rights of the Child 1989, art XXXIII; OAU Charter on the Rights and Welfare of the Child 1990, art XXVIII; Child Rights Act 2003, ss 14 and 25.
236 | Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes morality which is currently lacking in this contemporary time.
In the same vein, in the bid to protect the interests of children, they are entitled to some basic human rights as provided for by the Constitution of Nigeria as well as other international and regional instruments including, OAU Charter on the Rights and Welfare of the Child, UN Convention on the Rights of the Child, among others.
Therefore, it is safe to conclude that, there is a link between the provisions of the Holy Bible on protection of the interest of children and the fundamental human rights as found in various international, regional and national legal regimes.
REFERENCE Book and Report Women Consortium of Nigeria, and ECPAT International, Sexual Exploitation of Children in Nigeria Submission 29 March 2018” Human Rights Council 31st Session, for the Universal Periodic Review of Human Rights Situation in Nigeria, to the Human Rights Council 31th Session (October – November 2018).
USDOS-US Department of State, ‘Country Report on Human Rights Practices 2017 – Nigeria,’ Document No.
1430111US Department of State, available online at <http://www.ecoi.net>.
Article OL Niyi-Gafar and OB Igbayiloye, ‘Adopting a Rights-Based Approach Towards the Legal Protection of the Nigerian Child’ (2016) 4 (1) Akungba Law Journal.
RA Aborisade and OO Balogun, ‘Dual Punishment: Mothers in Nigerian Prisons and their Children’ (2016) 19 (1) African Journal for the Psychological Study of Social Issues.
Smaranda Olarinde, ‘Reflections on the Basic Rights of the Nigerian Child under the Child Rights Act, 2003’ (2005) 4 University of Ibadan Journal of Private and Business Law.
IKE Oraegbunam, ‘Islamic Law Religious Freedom and Human Rights in Nigeria’ (2012) 2 (1) African Journal of Law and Criminology.
MA Araromi, ‘Prisoners Rights under the Nigerian Law: Legal Pathways to Progressive Realization and Protection’ (2015) 6 (1) Afe Babalola University Journal of Sustainable Development, Law and Policy.
DI Dimkpa, ‘The Plight of Women Inmates in Rivers State, Nigeria’ (2011) 31 (1) Pakistan Journal of Social Sciences.
Regulation Holly Bible: Isiaiah 8:18; Genesis 33:5; Hebrews 2:13; Isiaiah 54:13; Exodus 1:17; Exodus 2; 1 Kings 17; 2 Kings 4; Acts 20:10; Luke 8:54, Matthew 9:25, Mark 5:41, Luke 9:42, Matthew 17:18 and Mark 9:26-27; Matthew 18:14; Malachi 4:6.; Isiaiah 66:13; Deuteronomy 30:19.; Amos 1:13 and Psalm 94:6; Jeremiah 7:30-31, 19:5, and 32:35, Ezekiel 16:20, 20:31, and 23:37-3; Isaiah 65:20; Genesis 22; James 2:21-23; Jeremiah 32:35; Mathew 7:11; 1 Timothy 3:12.; 2 Corinthians 12:14.; Job 24:9, Nehemiah 5:5, and Joel 3:3.; Joel 3:3; Isaiah 21:8-20; Mark 9:37; Luke 10:12; Mathew 11:25.; Mark 10:14; Mark 10:16; Mark 10:15; Acts 2:39; Joel 2:28; Psalm 127: 3-5; Psalm 128:3; Proverbs 17:6; Proverbs 20:7; Isaiah 10:2, Ezekiel 22:7, Jeremiah 7:6 and Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Adebayo Protection of Interests of Children: The Roles of Religions and Legal Regimes | 237 22:3, Zechariah 7:10 and Malachi 3:5; Matthew 18:6, Mark 9:42 and Luke 17:2; Deuteronomy 24:17-21; Deuteronomy 24:17-21; Psalm 72:4 and 82:3, Isaiah 1:17 and James 1:27; Psalm 82:3; Mathew 18:6; Leviticus 20:22-25; Leviticus 20:22-25; Proverbs 22:6; Deuteronomy 22:15; Deuteronomy 22:13; Deuteronomy 22:14; Ephesians 6:4; Deuteronomy 30:16; Proverbs 23:22; Proverbs 29:15; Deuteronomy 4:9; Deuteronomy 6:5-7; Colossians 3:2; Mark 7:10; Colossians 3:20; Ephesians 6: 1-3; 2 Kings 5:2-3; Ruth 4:15, Psalm 37:26, Isaiah 29:23; Deuteronomy 31:12-13, Joshua 8:35, Nehemiah 12:43, Psalm 148:11, Joel 2:16 and 10:7, Matthew 21:15, John 4:46-53, Acts 16:33, 18:7, 21:5; Joshua 4:6; Psalm 8:2; Genesis 37:2; 1 Samuel 17:41; 1 Samuel 2-3; 2 Kings 22; 2 Chronicles 26; John 6: 9-11; Jeremiah 1:7, 1 Timothy 4:1; Matthew 2:11, Luke 2:8-40; Isaiah 9:6.
Constitution of the Federal Republic of Nigeria 1999.
Child Rights Act 2003 Nigerian Child Rights Act 2003.
OAU Charter on Rights and Welfare of the Child, Doc.
CAB/LEG/24.9/49 (1990) entered into force November 29 1999.
UN Convention on the Rights of the Child 1989.
Internet Agiobu-Kemmer, ‘Baby Prisoners – How they fair in Captivity’ Nigerian Guradian Newspaper of 19 June 2016 available online at <http://m.guardian.ng/sundaymagazine/baby-prisoners-how-theyfair-in-captivity/> accessed 22 November 2019. http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/ http://m.guardian.ng/sunday-magazine/baby-prisoners-how-they-fair-in-captivity/
224 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.07 Urgency of the Contempt of Court Criminalization Policy to Overcome Harassment Against the Status and Dignity of Courts Hari Sutra Disemadia, Kholis Roisahb a,bFaculty of Law, Diponegoro University, Semarang, Indonesia Email: haridisemadi@gmail.com Submitted : 2019-08-02 | Accepted : 2019-09-06 Abstract: In Indonesia, many cases that occur related to contempt of court and law enforcement have occurred.
The issue of Contempt of Court in Indonesia is a problem that is both interesting and complicated in its conception and regulation.
Until now, in Indonesia, no provisions specifically regulating the Contempt of Court institutions.
This completed study uses a normative juridical research method that prioritizes secondary data.
This research addressing the legislation governing the Contempt of Court specifically until now still does not yet exist.
However, the general arrangement has happened in the Criminal Code.
Contempt of Court can occur both in the courtroom and outside the trial both in criminal, civil and industrial relations cases.
Increasingly expanding various actions, which can be categorizing as contempt of court in Indonesia, it is necessary to arrange Contempt of Court in the form of separate rules Keywords: urgency; criminalization policy; contempt of court.
I.
INTRODUCTION Current progress has led to many changes.
The social aspects that were formerly considered taboo were due to the modernization of the taboo thing that has passed.
Even something that has previously considered an area that is impossible to change has easily been changed by it, for example, religious traditions, community social relations and law.1 1 Ida K. Jeumpa, ‘Contempt Of Court: A Comparison Among Vary Legal Systems’ (2014) 62 Kanun Jurnal Ilmu Hukum 147, 149.
If we look at the world of justice and law enforcement in Indonesia, almost every day we are treated to various stories or news about unsatisfactory judicial practices.
News about the judicial mafia, bribery at every stage of the court and the congregation atmosphere was like a place without rules, even though justice is a place to seek justice based on the applicable legal rules.2 It is not new if we see the visitors shouting, throwing eggs, clapping their hands, 2 Aditya W. Mulyadi, ‘Urgensi Dan Pengaturan Uu Tentang Contempt Of Court Untuk Menjamin Harkat, Martabat Dan Wibawa Peradilan’ (2015) 4(2) Jurnal Magister Hukum Udayana 330, 335.
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3 The case that most tarnished the dignity of the judiciary in Indonesia was the murder that took place in the courtroom of the Sidoarjo Religious Court (Pengadilan Agama), East Java, until a judge being murder.
The lack of public trust in the judiciary is the root of the problem of the emergence acts of abuse against contempt of court.
This lack of public trust is very influential on the integrity and authority of the judiciary as the last bastion to get justice.4 The issue of Contempt of Court in Indonesia is a problem that is both interesting and complicated in its conception and regulation.
The terminology and understanding of the Contempt of Court in Indonesia is first to contain in the Supreme Court Law, which is the main implication, whether it is a person who imposes a person or more in a court case or not outside the court whose actions are actively or passively disturbing and polluting the criminal justice system that runs as it should, deterring and disturbing court officials who are authorized to carry out their duties, demeaning the dignity of the judiciary in public because it is like a court hearing is a sacred matter and the judge is an extension of God’s hand because it expects that a justice which includes all parties in agreement.5 Indonesia is a legal state (Rechtsstaat) as confirmed by the provisions of Article 1 paragraph (3) of the 1945 Constitution.
The nature of the state law upholds a legal system 3 Ida K. Jeumpa, above n 1., 152.
4 Binsar Gultom, Pandangan Seoarang Hakim Penegak Hukum Di Indonesia, (Medan: Pustaka Bangsa Press, 2006), p. 101.
5 Anita Afriana, and At Al, ‘Contempt Of Court: Penegakan Hukum Dan Model Pengaturan Di Indonesia’ (2018) 7(3) Jurnal Hukum Dan Peradilan 441, 450.
6 Aditya W. Mulyadi, above n 2., 337. that guarantees legal certainty (Rechts zekerheids) and protection of human rights.6 A country based on law must guarantee the equality of each individual, including the independence of individuals to use their human rights.
In this context, in addition to executive and legislative powers, there is judicial power in the manifestation of judicial power.7 In judicial power, there is a fundamental principle in the form of independence of the judiciary.
The principle implies that the course of the judicial process must be a guarantee in a way to avoid all forms of influence, pressure, threats that come from any party that has the potential to reduce the nobility of the principle.
The principle of independence of the judiciary said is universal and is applied in various countries.8 Based on the above principles, the judicial process must be carried out openly, objectively, impartially following legal provisions and a sense of justice.
So important is the position and function of the principle so that it gets special arrangements in the 1945 Constitution of the Indonesian Republic of Indonesia and then translated into various laws which specifically contain the main points of judicial power.
Anyone, without exception, is obliged to respect the dignity and dignity of the court and all its apparatus.9 However, the implementation of judicial power in constitutional practice is relatively vulnerable which can be intervened 7 Lilik Mulyadi, ‘Urgency and Prospects Settings (Ius Constituendum) on Contempt of Court Act to Uphold The Dignity and Justice Authority’ (2015) 4(2) Jurnal Hukum dan Peradilan 275, 278.
8 Budi Suhariyanto, ‘The Urgency of the Criminalization of Contempt of Court for the Effectiveness of Decision at Judicial State Administrative Court’ (2019) 16(1) Jurnal Konstitusi 192, 198.
9 Binsar Gultom, above n 4, 105 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 226 | Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy... neither through legislative legal policies nor horizontal institutions, power in society (mass organizations, mass media, political parties) through the formation of public opinion at the time the judiciary is ongoing.
The influence of parties that have political power interests, anarchic, decisive and compelling violence or mass mobilization has coloured the judicial process so that it disrupts the administration of the judicial process.10 Based on the background of the above problems, it is necessary to attempt a criminalization policy by making a legal product and the concept of law enforcement against a case of abuse against contempt of court.
Although not only legal products in the form of laws that can use as a solution to this problem, where bureaucratic reform can also be used as a step to increase public trust.
Previous research related to contempt of court was by Budi Suhariyanto in 2019, with the research title “The Urgency of the Criminalization of the Court of Effectiveness at Judicial State Administrative Court” published in the Journal Konstitusi of Volume 16 Number 1, The focus of this research is on the policy of criminalizing contempt of court against State Administration officials (TUN) who do not fulfill the TUN Court’s decision, and by Ruby Hardiarti Johny in 2009, with the research title “Contempt Of Court (Kajian Tentang Ide Dasar Dan Implementasinya Dalam Hukum Pidana)” published in Jurnal Dinamika Hukum.
Volumen 9 Number 2, the result of the research shows that the basic idea of the contempt of court-managed in the criminal code is closely related with and afford to promote the high authority and privilege.
Contempt of Court in Indonesia is implemented in the articles which spread out 10 Budi Suhariyanto, above n 8., 200. of the Criminal Code especially offences related with “rechtspleging” and draft of law of criminal code which has been directed on its chapter itself namely Chapter VI about crime act on holding the judicature from the article 325 up to 335 of draft of law of the Criminal Code.
The conducts which could classify as the contempt of court is nowadays essential in Indonesia to keep the authority and privilege of justice institution to take action against the actors of contempt of court to apply the articles of Criminal Code.
Based on previous research, there are differences in the focus of research that will be carried out by the authors with existing research.
Although they both took the theme of contempt of court, the focus of this study is on: 1).
Existence of contempt of court arrangements in Indonesia; and 2).
The urgency of contempt of court arrangements by Indonesian judiciary.
II.
LEGAL MATERIALS AND METHODS The type of legal research used is legal research which is included in the normative legal research typology where this study focuses on positive legal norms in the form of legislation.
Analytical descriptive is the nature of the research specifications used by the author because the specifications of this study describe and describe the problem of the object that is studied.
The data that has obtained is then collected and then arranged to be analyzed and explained to get the conclusions of the research conducted.
Secondary data have used in writing this article.
Secondary data is indirect data access from the source of the object of research.
This data is in the form of legal material has juridical binding power (primary legal materials), legal materials that provides Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy...| 227 further explanation of primary legal materials such as books, articles and internet related to the topic of this research (secondary legal materials) and legal material that gives explanation of the two legal materials above (tertiary legal materials), because this legal material is able to clarify terms and problems that might be encountered, for example, is a legal dictionary and other language dictionaries.
The technique used in collecting secondary data is through library research or documentary study, which is a study that examines various documents both related to legislation and other available documents.
The last thing is compiling data that have been obtained so that it becomes legal writing that can answer the problems that have formulated beforehand to help the author make a correct conclusion.
III.
RESULT AND DISCUSSION Existence of Legal Settings on Contempt Of Court In Indonesia The judicial power that contains freedom also means there is protection for judges and their institutions, from influences including the following: 11 a).
Institutions outside the judicial bodies both executive, legislative and others; b).
Internal institutions within the ranks of the judicial authority itself; c).
Influence of litigant parties; d).
The influence of litigants both nationally and internationally; and e).
Effects that are “trial by the press”.
If the judge has high credibility and is being supported by a system that provides the freedom and independence of judges and their institutions, the public trust in the function of judges and court institutions will be better, people are happy that their case is 11 Hasbullah F. Sjawie, ‘Sekelumat Catatan Mengenai Tindak Pidana “Contempt of Court” Di Indonesia’ (1994) 4 Jurnal Hukum Dan Pembangunan 324, 329-330. processed because they believe they will get justice.12 The 1945 Constitution provides a legal basis for judicial authority through Article 24, then Act No.
14 the Year 1970 which was amended by Act No.
35 Year 1999 and now with the Act No.
4 the Year 2004.
The independent judicial power is closely related to the Contempt of Court, which is an act that undermines the dignity, dignity and honour of the judicial body.
If it is seen that the existence of the Contempt of Court in Indonesia is contain in the general explanation point 4 of Act No.
14 the Year 1985 which was amended by Act No.
5 the Year 2004 concerning the Supreme Court which states that in order to better guarantee the creation of the best possible atmosphere for the administration of justice in order to uphold law and justice based on Pancasila, a law that regulates actions, behaviour, attitudes and or speeches is needed, can be degrading from the undermining of the dignity, dignity and honor of the judicial body known as the Contempt of Court.13 Actions that qualify for Contempt of Court according to the Civil Law System that aims to protect judicial bodies to maintain the effectiveness of the judicial system to function properly and fairly, and regulated in the codification of legislation of countries that embrace civil law.
14 This regulation concerning Recht pleging is not a term of the crime of Contempt of Court but is known as a criminal act against the administration of justice, because of civil law, a criminal act against the administration of justice regulated in a Criminal Code (KUHP).
The basic idea of the Contempt of Court is to protect the dignity of the judiciary 12 Suriani, ‘Pengaturan Hukum Pidana Terhadap Contempt Of Court’ (2017) 2(3) Jurnal Pionir 1, 4.
13 Aditya W. Mulyadi, above n 2., 332.
14 Ida K. Jeumpa, above n,1,169.
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6 No.2 (2019) State Regulations and Law Enforcement 228 | Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy... in order to remain respectful and dignified as an independent, independent institution regardless of the influence of other parties (executive, legislative, internal institutions of the judiciary) or those who want to impose honour and authority judicial institutions, and this can concluded from the provisions of Article 24 of the 1945 Constitution.
In Indonesia, the Contempt of Court arrangement in positive law briefly regulated in the provisions of the material law (KUHP), formal law (KUHAP), as well as arrangements outside the Criminal Code and KUHAP.
In the Criminal Code and the Criminal Procedure Code, it is arranged briefly about the Contempt of Court which essentially is anyone who intentionally interferes with, does not show respect and obstructs the performance of the competent officials both in the trial and outside the trial in the law with criminal penalties.15 Strictly speaking, it can be said that in fact until now, Indonesia still does not have its legal instruments that are sufficient to regulate and protect the dignity of the judiciary from various actions of various parties.
The indication is that relatively few have tried for conducting Contempt of Court.
16 .
The logical consequence is an urgent, urgent and urgent need for critical and academic studies and research to be carried out comprehensively towards the birth of the Law on Criminal Procedure for the Implementation of Courts to maintain nobility and uphold the dignity of the judiciary.17 15 Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicialprudence), (Jakarta: Kencana, 2012), p. 98.
16 Ruby H. Johny, ‘Contempt Of Court (Kajian Tentang Ide Dasar Dan Implementasinya Dalam Hukum Pidana)’ (2009) 9(2) Jurnal Dinamika Hukum 135, 140.
The Urgency of Contempt Of Court Settings According To Indonesian Justice Court abuse, whether direct or indirect, is very possible, for example, on May 27, 2001, judges at the Medan District Court were verbally abused, pursued and spat on by the litigants.
Even in Sumenep, there was once a judge who was chased by the masses until he fell into the river and was beaten only because the judge's decision was deemed not by local custom values.
Recently, a public lawyer at the Jakarta Legal Aid Institute (LBH) was also reported by North Jakarta District Court judges to Peradi, among others, for being considered a Contempt of Court.
18 Since Indonesian independence, there was the political will to regulate further the insult and threatening of instruments in court.
However, this, in the end, is only limited to discourse.
It is necessary to have separate arrangements regarding the Contempt of Court which are not only as currently only in the Criminal Code, as proposed by the Indonesian Judge Association (IKAHI) submitted to the legislature about the regulation of legal protection for judges.
However, the proposal has not received a response from the legislature, that is possible because if the judiciary has given the protection it will have very strong immunity and it is feared that it can cause problems.
Likewise, the opinion of Saryana is that a Contempt of court Bill has required outside the Criminal Code articles, so for more details, Contempt of court must be made special rules with a clear understanding of the Contempt of court.19 17 Ruby H. Johny, above n16., 140 18 Budi Suhariyanto, ‘Contempt Of Court through The Perspective Of Progressive Law’ (2016) 9(2) Jurnal Yudisial 151, 168.
19 Achmad Ali., above n,15., 122 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy...| 229 The lack of a clarify Contempt of Court arrangement, in practice, has led to injustice and legal uncertainty.
Legal certainty requires the creation of general rules or generally accepted rules.
20 The goal, to create a safe and peaceful atmosphere in the community, then these regulations must be enforced and implemented firmly.
Thus, the rules of law must be known with certainty.
It can be said that in essence legal certainty is a condition where human behaviour, both individuals, groups, and organizations, is bound and within the corridor that has been outlined by the rule of law.21.
Three pillars in realizing legal certainty can be divide into legal certainty from the elements of the legislation, institutions and legal institutions, that manifested in the decisions of the institution.
The creation of legal certainty can be realized on the condition that there are clear and non-interpretive laws or regulations.22 The need to be clear rules as one of the pillars of effective and efficient law enforcement to achieve legal certainty, and criminalization of actions that harass the dignity of judges and courts is still needed.
Making criminalization of actions to uphold the authority of the court is important, and this can be done only through clear rules and procedures.23 The Contempt of Court rules that have so far been valid is only implicitly regulated in the Criminal Code.
Considering that the Contempt of Court's actions has expanded to threaten the authority of the court, and it is necessary to have special rules as well as legal requirements.
This is where the role of 20 Wildan Syafitri, ‘ Tinjauan Yuridis Penghinaan Terhadap Pengadilan Dalam Sistem Peradilan Pidana Indonesia’ (2016) 3 (2), JOM 1, 12 21 Budi Suhariyanto, above n,18., 170.
22 Ruby H. Johny, above n16., 141.
23 Lilik Mulyadi., above, n,7,90 law is needed in development to ensure that change occurs in an orderly manner.
24 Regularity in change can be assisted by legislation or court decisions so that it can be carried out in an orderly manner because both change and order are the goals of the people who are developing.
Thus the law becomes a tool that cannot be ignored in the development process and can be said as law as a means of renewing society.
Legal development covers all aspects of people's lives, which are not only limited to legal norms and norms but also institutions and processes.
Therefore, one aspect of the development of national law is related to material law and formal law.
In the context of legal development, the results in this study are required for legal reform by the needs of the community.
As an effort to uphold the law, it is time for Indonesia to have a regulation on the Contempt of Court, considering this is by the needs not only for judges but also for the community.25 Considering the increasing extent of actions that can be categorized as Contempt of Court, all actions and actions that in principle disrupt safety, psychological and physical calm, it is necessary to have a separate Contempt of Court arrangement, because it is a special crime, in the sense that the word has not integrated in the Criminal Code.
The main principle of the Indonesian state which is the basis of the civil law system is that the law obtains binding power because it is embodied in regulations in the form of shrimp law and systematically arranged in certain codifications or compilations.26 This basic principle relates to the main value is the 24 Budi Suhariyanto, above n 18., 209.
25 Nur Kholis, ‘Asas Non Diskriminasi Dalam Contempt of Court’ (2018) 26(2), Jurnal Legality 210, 230.
26 Budi Suhariyanto, above n 18.
203.
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Based on this matter, it becomes urgent to immediately make special rules regarding Contempt of Court.
Contempt of Court forms that can be classified as types of harassment qualify as follows:27 1).
The behaviour is not polite in the trial (Misbehaving), which is all actions in the form of signals or statements of a threat to the court.
The point is to behave in a disgraceful and inappropriate manner in the court.
The types of violations included in misbehaving in court are one type of humiliation that occurs in the court.
The meaning of misbehaving in court is that in every act or word that can hinder or obstruct the course of a normal and harmonious trial of the proceedings at the court.
The type of misbehaving violation is an attack on the course of the trial.
Misbehaving is one form of the Contempt of Court if the act or behaviour is such that it disrupts to order in a court session.
As such, order and authority of the court need to return.
The formulation contained in misbehaving in court is that every person who behaves in a disorderly manner, embarrassing or detrimental, disturbing, disrupts the normal course of a judicial process before the court, is wrong for committing a violation.
In the Criminal Code the misbehaving act covered in Article 217 of the Criminal Code which criminalizes those who make noise and is unwilling to be issued can be intended in terms of misbehaving which is one element of the Contempt of Court.
A misbehaving or disruption in a judicial process, by making noise, attack or physical disruption in its essence is not such a big problem, so that the judge only allows 27 Oemar Seno Adji, Peradilan Bebas Negara Hukum, (Surabaya: Erlangga, 1986), p. 221-222 28 Sutanto Nugroho, R.B.
Sulatro and Budhi Wisaksono, ‘Pengaturan Tindak Pidana Contempt or expels visitors as a preventive step in the occurrence of Contempt of Court; and 2).
Make a court scandal (Scandalizing the Court).
This form of Contempt is from actions or statements and attacks on impartiality from the court, which can be addressed to judges, prosecutors and witnesses carried out by the masses as visitors to the trial both in the trial and outside the trial which can cause a reversal effect, disrupt normal functions and smoothly regarding the Judicial process even though the Contempt has not directed against the Judge, prosecutor or witness but also the proceedings.
Contempt Scandalizing the court type has a broad meaning about the situation and has other types of misbehaving or disruption in the court.
This happens when it is a result of language which is a mild insult to the court or an attack on impartiality during the process.
The purpose of making the type of scandalizing the court is to protect the reputation of the court against impartiality, objectivity, or honesty of the court itself.28 Contempt of Court forms which can be categorized as disruptions to trials which are types of misbehaving in court and Scandalizing the Court, after a description or expression of analysis is held accompanied by a proposal for consideration of recommendations, it can be channelled in legislation in addition to the provisions in the Criminal Code as a violation of the course of the judicial process (Administration of Justice).29 Based on the Academic Script of the Contempt of Court Bill compiled by the Indonesian Judge Association (IKAHI), actions which include harassment of court of Court Berdasarkan Sistem Hukum Pidana Indonesia’ (2017) 6(2), Dipegoro Law Journal 1, 9.
29 Ruby H.Johny, above n,16,140.
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6 No.2 (2019) State Regulations and Law Enforcement Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy...| 231 dignity include 30 1).
Despicable and inappropriate behaviour (misbehaving in court); 2).
Not obeying court orders (disobeying in court order); 3).
Attacking court integrity and impartiality (scandalizing the court); 4).
Obstruct the running of the court (obstructing justice); 5).
The acts of humiliation against the court are carried out by publication or notification (subjudice rule).
Based on the description above, it has been concluding that the Contempt of Court included two things:31 1).
Actions are taken in the court session (contempt in the face of the court); 2).
Publications considered to interfere with a fair judicial process in certain cases (publications in due course of justice in particular legal proceedings).
In the Criminal Code Bill, contempt of court material has regulated in a special chapter which among other things regulates acts against the law in terms of not obeying court orders for the sake of judicial processes, insulting judges or attacking integrity, advocates who make agreements with opposing parties.
It is worth noting that the act can harm the interests of the party being assisted, asking for compensation with the intention of influencing witnesses, interpreters, investigators, public prosecutors, or judges in the case concerned; use violence, threats of violence or intimidate investigators, investigators, public prosecutors, lawyers, and / or judges; does not come when called as a witness; damaging facilities, infrastructure and equipment for court hearings; direct attacks on witnesses or law enforcement officers and court officials; and make noise in court.32 30 Hasbullah F. Sjawie, above n,11, 329 31 Budi Suhariyanto,above n,18., 204.
32 Sareh Wiyono M, ‘Urgensi Pembentukan UndangUndang Tentang Penghinaan Dalam Persidangan (Contempt of Court), Untuk Menegakkan Martabat If you look at the substance of contempt of court in the Criminal Code Bill, it is clear that the regulation applies to the public outside the law enforcement apparatus.33 The Criminal Code Bill has not yet regulated what if law enforcers in the judiciary environment such as judges, investigators, and investigators carry out acts that demean the dignity, dignity or honour of the judiciary.
Provisions that regulate legal protection for law enforcement officers in carrying out their duties are very adequate, but it is undeniable that law enforcers also have the potential to take actions that can undermine the dignity and dignity of the judiciary so that the contempt of court provisions apply also to enforcement officer’s law.34 For civil society who reject the Bill on Contempt of Court proposed by the Indonesian Judge Association (IKAHI), consider the material in the Contempt Of Court Bill contains duplicate material in other laws, such as the Criminal Code, so It is has feared that overlapping arrangements will occur, the existence of the articles that have the potential to be used to criminalize some parties, and the potential for more limited public access to the courts.
35 The articles in the Contempt Of Court Bill that contain controversy are the provisions of Article 20 and Article 25.
Article 20 of the Contempt of Court Bill reads: “1) Any person who insults a judge or attacks the integrity or non-impartiality of a judge or an official who administers the court in connection with the implementation both oral and written judiciary, shall be punished with a maximum imprisonment of 8 (eight) years and/or a dan Wibawa Peradilan’ (2015) 4(2) Jurnal Hukum dan Peradilan 263, 266.
33 Suriani, above n 12, 4.
34 Budi Suhariyanto, above n,18,210.
35 Sareh Wiyono M,above n,30, 267.
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6 No.2 (2019) State Regulations and Law Enforcement 232 | Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy... maximum fine of Rp.1,000,000,000.00 (one billion rupiahs).
2) If this is done by writing broadcast through print or electronic media, it is threatened with imprisonment of a maximum of 10 (ten) years and / or a criminal fine of at most Rp.1,500,000,000.00 (one billion five hundred million rupiahs)”.
Moreover, the provisions of Article 25 of the Contempt of Court Bill which was rejected by civil society reads: “1) Any person who publishes or allows to be published on an ongoing trial process, or case that is in the stage of legal remedies, which can affect independence or impartiality, is punished with a maximum imprisonment of 5 (five) years and/or a fine of at most Rp.1,000,000,000.00 (one billion rupiahs).
2) Anyone commenting on a court decision before a decision that has a permanent legal force that can affect the independence of the court is punished with a maximum of 5 (five) years imprisonment and/or a maximum fine of Rp.
1,000,000,000 (one billion rupiah)”.
IV.
CONCLUSION All forms of actions and actions which in principle disrupt safety, psychological and physical calm both inside and outside the trial, can be categorized as Contempt of Court.
At present, the Contempt of Court arrangement is implicitly spread in several articles in the Criminal Code.
There was much contempt of courts in the process of law enforcement by the judges through the court, but given the absence of clear technical and reporting procedures for the Contempt of Court actions that had not been given strict sanctions, but only issued from the courtroom.
Increasingly expanding various actions that have been categorizing as Contempt of Court which threaten the authority of the court, it is necessary to regulate the Contempt of Court in the form of separate rules.
The substance of the Contempt of Court in the Criminal Code Bill has applied to the public outside the law enforcement apparatus.
The Criminal Code Bill has not yet regulated what if law enforcers in the judiciary environment such as judges, investigators, and investigators carry out acts that demean the dignity and honour of the judiciary.
Provisions that regulate legal protection for law enforcement officers in carrying out their duties are very adequate, but it is undeniable that law enforcers also have the potential to take actions that can undermine the dignity and dignity of the judiciary so that the contempt of court provisions apply also to enforcement officer’s law.
REFERENCES Book Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicialprudence), (Jakarta: Kencana, 2012).
Binsar Gultom, Pandangan Seoarang Hakim Penegak Hukum Di Indonesia, (Medan: Pustaka Bangsa Press, 2006).
Oemar Seno Adji, Peradilan Bebas Negara Hukum, (Surabaya: Erlangga, 1986).
Journal Aditya W. Mulyadi, ‘Urgensi Dan Pengaturan Uu Tentang Contempt Of Court Untuk Menjamin Harkat, Martabat Dan Wibawa Peradilan’ (2015) 4(2) Jurnal Magister Hukum Udayana 330.
Anita Afriana and At Al, ‘Contempt Of Court: Penegakan Hukum Dan Model Pengaturan Di Indonesia’ (2018) 7(3) Jurnal Hukum Dan Peradilan 441.
Budi Suhariyanto, ‘Contempt Of Court through the Perspective of Progressive Law’ (2016) 9(2) Jurnal Yudisial 151.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Disemadi, Roisah Urgency of the Contempt of Court Criminalization Policy...| 233 Budi Suhariyanto, ‘The Urgency of the Criminalization of Contempt of Court for the Effectiveness of Decision at Judicial State Administrative Court’ (2019) 16(1) Jurnal Konstitusi 192.
Hasbullah F. Sjawie, ‘Sekelumat Catatan Mengenai Tindak Pidana “Contempt of Court” Di Indonesia’ (1994) 4 Jurnal Hukum Dan Pembangunan 324.
Ida K. Jeumpa, ‘Contempt Of Court: A Comparison Among Vary Legal Systems’ (2014) 62 Kanun Jurnal Ilmu Hukum 147.
Lilik Mulyadi, ‘Urgency and Prospects Settings (Ius Constituendum) on Contempt of Court Act to Uphold the Dignity and Justice Authority’ (2015) 4(2) Jurnal Hukum dan Peradilan 275.
Nur Kholis, ‘Asas Non-Diskriminasi Dalam Contempt of Court’ (2018) 26(2), Jurnal Legality 210.
Ruby H. Johny, ‘Contempt of Court (Kajian Tentang Ide Dasar Dan Implementasinya Dalam Hukum Pidana)’ (2009) 9(2) Jurnal Dinamika Hukum 135.
Sareh Wiyono M, ‘Urgensi Pembentukan Undang-Undang Tentang Penghinaan Dalam Persidangan (Contempt of Court), Untuk Menegakkan Martabat dan Wibawa Peradilan’ (2015) 4(2) Jurnal Hukum dan Peradilan, 263.
Sutanto Nugroho, R.B.
Sulatro and Budhi Wisaksono, ‘Pengaturan Tindak Pidana Contempt of Court Berdasarkan Sistem Hukum Pidana Indonesia’ (2017) 6(2), Diponegoro Law Journal 1.
Suriani, ‘Pengaturan Hukum Pidana Terhadap Contempt Of Court’ (2017) 2(3) Jurnal Pionir 1.
Wildan Syafitri, ‘ Tinjauan Yuridis Penghinaan Terhadap Pengadilan Dalam Sistem Peradilan Pidana Indonesia’ (2016) 3 (2), JOM 1.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 255 THE CHALLENGES OF INTERNATIONAL AIR LAW PRINCIPLES IN GLOBALIZATION ERA Adi Kusumaningrum 1 1 Faculty of Law, Brawijaya University Email: adikusumaningrum@gmail.com Submitted: 2017-09-29 | Accept: 2017-10-19 ABSTRACT The concept of state‟s sovereignty had become one of debatable issues within the international law studies during the 20 th century.
International air transport has always been one of the most regulated of industries of globalization.
Therefore, airspace sovereignty no escape from the challenges of globalization.
This regulatory system has been changing recently because of worldwide initiative that have paved the way for enhancing air transport liberalization.
This is why numerous models have been hypothesized for a new (multilateral) aviation order to supersede bilateralism, which still remains the primary vehicle for liberalizing international air transport service for most states.
This study intends to discuss about the basic principles of international airspace law that frequently facing challenges in the globalization era.
In the last few decades is that the economic aspects of airspace sovereignty have dominated change, or the lack thereof, in the international air sovereignty regime.
In addition, there are many challanges in politic and law.
In the context of Indonesia airspace challanges, in the near future, it is needed to revitalize the function of the strong regulation.
This can be started by re-evaluating the regulations that is continued by the arrangement of the anatomy of the setting that is comprehensive, systematic, careful, effective and also efficient based on two importance that are prosperity and security.
Keywords: Challanges, international basic principle, airspace law, globalization era I.
INTRODUCTION The concept of national sovereignty has been dramatically changed after World War I ended.
Several new perspectives upon sovereignty occurred due to this event.
The normative ideas that previously being preserved, had been set aside.
This fact proved that the traditional concept of sovereignty could no longer accommodate the situation in globalization and democratic era.
1 The concept of nation‟s sovereignty had become one of debatable issues within the international law studies during the 20 th century.
Moreover, the studies upon sovereignty is done based on various approaches, it does not only come from legal and international relation approaches, but also based on anthropology and sociology.
2 Many challenges arose against 1 Stephen D. Krasner, „Abiding Sovereignty‟, (2000) 22 2 International Political Science Review / Revue internationale de science politique, 234.
2 See Thomas Blom Hansen & Finn Steputat, „Sovereignty Revisited‟, (2006) 35 Annual Review of Anthropology, 295-315.
DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.07 mailto:adikusumaningrum@gmail.com http://dx.doi.org/10.21776/ub.blj.2017.004.02.07 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 256 the concept of nation‟s sovereignty either from the aspect of politic, economy, law, or even socio-cultural and environment.
One of the setbacks of nation‟s sovereignty in terms of airspace is the development into globalization era.
International air transportation is one of the most policed sector within the industrial world in globalization era.
Traditionally, this sector has been regulated based on Chicago Convention 1944 by virtue of bilateral air services, in which countries are allowed to trade the freedom of airspace among them.
3 Unfortunately, the regulation had been repealed because of the initiative to open and liberate the air transportation.
Many hypothesis model of new order flight (multilateral), which substitute the bilateral system of airspace law, aim the liberty of international air transportation service to all countries as their main objective.
4 It is emphasized by Stepen M. Shrewsbury, the economic aspect of airspace sovereignty tend to dominate any following changes of airspace sovereignty in the future.
The pros of “laissez-faire” will actively advocate the freedom of airspace and free competition.
5 The challenges 3 Francesco Gaspari, „The EU Air Transport Liberalization and Re-Regulatin‟, (2011) 11 2 International and Comparative Law Review, 6.
4 Ibid.
5 Stepen M. Shrewsbury, „September 11 th and The Single European Sky: Developing Concepts of Airspace Sovereignty‟, (2003) 68 115 Journal of Air Law and Commerce.
Stephen stated that there are still a lot of countries in the world who hold on absolute sovereignty of territory.
He said that occurred during the evolution process of airspace sovereignty does not only come from economic aspect but also from many other factors along with the evolution of nation‟s sovereignty based on the international law.
This study intends to discuss about the basic principles of international airspace law that frequently facing challenges in the globalization era.
These basic principles are mentioned in Article 1 of Chicago Convention 1944 on International Civil Aviation.
This article contributes huge role and holds the highest authority in managing air transportation in a country according to the sovereignty principle of “complete” and “exclusive”.
6 The role of a country, as the highest authority, in managing air transportation is mentioned in Article 6 Chicago Convention 1944.
This article set a juridical consequence that, de jure, the airspace of each country is “closed” for foreigners, unless the concerned has “opened”, de facto.
Brian F. Havel highlighted his statement that Article 6 is the perfect logic of the “restriction” mentioned globalization and sovereignty is considered as dichotomy.
6 System that generates from this article is later known as treaditional system.
See Erwin von den Steinen, National Interest and International Aviation, (The Netherlands: Kluwer Law International, 2006).
See also Hussein Kassim and Handley Stevens, Air Transport and The Eropean Union: Europeanization and its Limit, (Palgrave Macmillan-UK, 2010).
See also Paul Stephen Dempsey and Andrew R. Goetz, Airline deregulation and laissez-faire mythology, (Connecticut-London: Quorum Books, 1992).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 257 in Article 1 of Convention, made under the importance of nation‟s safety and defense.
II.
LEGAL MATERIALS AND METHODS The type of this research is a normative legal research, which uses a constitutional approach in the form of a juridical normative study.
Legal materials used in this paper are primary as well as secondary legal materials.
This paper mostly used its legal analyses based on Chicago Convention 1944 on International Civil Aviation.
Secondary materials were taken from academic journals as well as other legal sources.
Using the statute and conceptual approaches, this paper is divided into several parts.
First part is introduction, which elaborates the changes in national sovereignty concept in globalization era.
It further discuss the challenges faced by nation state in globalization era, especially in regulating air transportation above the sovereing territory.
The paper ended by conclusion which addressed legal problems posed in this paper III.
RESULTS AND DISCUSSIONS 1.
Basic Principles of International Airspace Law as the Implication of Nation’s Airspace Sovereignty John Cobb Cooper identified four basic principles in the guidance of International Airspace Law, those are: a) Territorial Sovereignty; b) National Airspace; c) Freedom of the Seas and d) National Aircraft.
7 Territorial Sovereignty is the nation‟s sovereignty that allows country to gain unilateral and absolute right to give permission or restrict anything coming into the area in their territory, as well as the right to control any activities taken place within the territory.
National Airspace is about the three dimension of the territory belongs to one sovereign country, it includes the airspace above the land territory along with the territorial sea and internal waters area.
While Freedom of Sea is the principle about the navigation in the surface of open sea and flight above the open sea that is available for all countries.
The last, National Aircraft is the national principle for aircraft that specified similarly as for the ships in maritime law.
8 The abovementioned basic principles by Cooper provide “specific right” for countries, especially in airspace.
Niels van Anterpen in his book titled “Cross Border Provision of Air Navigation Services with Spesific Reference ro Europe” explicated the principles of international airspace law that includes: 1) country, territory, and air territory; 2) sovereignty, jurisdiction, and 7 John Cobb Cooper, „Backgrounds of Internasional Public Air Law‟, (1967) 1 3 Yearbook of Air and Space Law, 1.
8 Ibid Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 258 national authority delegation.
9 The researcher will discuss the basic principles of international airspace law as follows: Country, Territory, and Air Territory Based on the pure theory of Law by the concept of Kalsen emphasizes that country as the personification of national law order that occupies a territory with particular border.
10 In his book “General Theory of Law and State”, Hans Kensen stated that the validity and effectiveness of national law order does not only applied to the width and the length of its country, but also to the depth and height.
11 It is supported by Willoughby by saying that the existence of a country depends on the its right upon the territory it belongs.
Furthermore, Kelsen explained that territory is a zone where a law order is applied throughout the whole area.
The territory of a country is the area where law order, called nation, is applied.
Territory, as mentioned in Article 1 Chicago Convention 1994, is further regulated in Article 2 of the Convention which includes the policy related to lands area and territorial waters.
Based on Article 2 Chicago Convention 1994, it can be concluded that the definition of air territory as the airspace above lands and territorial waters aside of it that is 9 Niels van Antwerpen , Cross Border Provision of Air Navigation Services with Spesific Reference ro Europe , (The Netherland: Kluwer Law International, 2010), 18.
10 Hans Kelsen, Teori Umum tentang Hukum dan Negara, translated by Raisul Muttaqien, (Bandung: Nusa Media, 2011), 297.
11 Ibid., 309. regulated under the authority/sovereignty, protection, and the policy of one country.
According to Boer Mauna, sea is the extension of land, therefore, the air territory of a country is determined based on the country‟s borderline in the land and sea.
12 The definitions of air territory above has proven the existence of horizontal borderline of air territory.
Meanwhile, there is still no any agreement from the international society upon the vertical borderline of air territory.
This is because there are various theories that being used to support each opinion about the case (theory of airspace and outer space border).
Horizontal borderline of air territory above a wide superjacent of sea devide and reflect the law regime of airspace above the different sea territory or zone.
In order to understand the regime of air space law above the different water area or zone, the sources of Maritime Law is ought to comprehend for Chicago Convention 1944 does not provide such explanation.
The common source of modern Maritime Law is United Nations Convention on the Law of the Sea (UNCLOS).
It does not only provide the common code law on the sea, but also contain the progressive development of international law as the main concern of Article 13.1.a Charter of UN.
13 The subject 12 Boer Mauna, Pengertian, Peranan Dan Fungsi Dalam Era Dinamika Global.
(Bandung: PT Alumni, 2003), 379.
13 Article 13.1.a of UN Charter contains the essence of international law in developing international Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 259 of sea territory is further mentioned specifically in Article 2 UNCLOS, which is relevant to the implementation of Chicago Convention.
1) Open Sea Article 86 of UNCLOS regulated the implementation of BAB policy about open sea.
This article mentions that the requirement of this chapter is valid to all part of the sea such as the sea territory or internal waters of a country, or archipelagic waters in archipelagic state, except for Exclusive Economic Zone.
This article does not reduce any freedom of all countries in exclusive Economic Zone as regulated in article 58.
The freedom of open sea includes the freedom of navigation and overflight, and no countries could legitimately claim or declare themselves as the subject of open sea as their part of sovereignty.
In other words, open sea along with the air space is out of the country‟s jurisdiction.
Even so, there are still regulation applied to the airspace above the open sea in order to maintain the safety of flights taken place in the area.
The thirds sentence of Article 12 of Chicago Convention decrees that above the open sea, the statutory regulation shall be obeyed under the decree of this Convention.
This is indeed the authority of the Board of ICAO cooperation in politics and enhance the international law along with the codes.
These are some of the responsibilities, duties, and authorities of UN General Assembly, as stated in Article 13 of Un Charter.
to determine the International Standard as mentioned in Annex 2 for Chicago Convention.
It contains the regulation of fight and aircraft maneuver above the open sea.
UNCLOS also contain two references regarding to „aircraft‟ in Chapter VII in open sea, those are about „skyjacking‟ and „chasing‟.
14 2) Contiguous Zone Article 33 of UNCLOS also regulates the contiguous zone.
According to Ruwantissa Abeyratne, practically, this requirement means has not been signed in terms of its theory and/or its practice.
The enactment of this requirement intends to police every act done by foreign aircraft above the contiguous zone, including the interception of an aircraft to land on the closest airport.
3) Cannel that is used for Air Navigation Regarding to this part, there are several articles in UNCLOS that is relevant as the legal fundamental for the law enforcement in this zone, those are: Article 37,38, and 39 (3) of UNCLOS.
Article 37and 38 of UNCLOS regulate te requirement of Transit Traffic.
Meanwhile 14 Both of these terms are not relevant to Chicago Convention, but it shall be remembered that skyjacking can theoretically take place in open sea or other areas out of the jurisdiction of countries by the flight crew or passenger to the plane or other plane.
This action never been recorded.
The right of “hot persuit” even less relevant to civil aviation for this right can only be executed by a fighter or military aircraft or other type of aircraft that served under the government.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 260 Article 39 (3) determines the duty of air craft in transit traffic.
4) Archipelagic Waters Archipelagic state as it is governed in PART IV UNCLOS starts from Article 4654.
Article 46 defines that archipelagic state means a state constituted wholly by one or more archipelagos and may include other islands.
The legal status of archipelagic waters, of the air space over archipelagic waters of archipelagic waters is drawn in Article 49 UNCLOS 1982.
According to Article 49 mentioned above, the sovereignty of an archipelagic state covers the airspace beyond the archipelagic waters (regardless of their depth or distance from the coast) as well as to their seabed and subsoil, and the resources contained therein.
5) Exclusive Economic Zone The specific legal regime of exclusive economic zone is stated in Article 55 UNCLOS 1982 which further determines that exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal state and the rights and freedoms of other states, governed by the relevant provisions of this Convention.
The breadth of exclusive economic zone governed in Article 57 cannot extend than 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.
In addition, Article 60 (1) UNCLOS 1982 determines that in exclusive economic zone, a coastal state has exclusive rights of coastal state.
6) Continental Shelf Continental shelf is governed in PART VII from Article 76-85.
The continental shelf of a coastal state comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, where the outer edge of the continental margin does not extend up to that distance.
The decision of continental shelf shall not extend beyond 350 nautical miles from the baselines where the territorial sea is measured and shall not extend beyond 100 nautical miles from the isobaths of 2.500 meter, which is a line connecting the depth of 2.500 meter.
2.
Air Sovereignty, Jurisdiction and National Authority Delegating International law is based on the state concept.
State at its turn, is depend on the sovereignty base, where the external dimension sovereignty said that state supreme as a legal person, meanwhile internal sovereignty stated that the supreme of the governmental institutions 15 .
Sometimes, sovereignty is defined as 15 Malcolm N. Shaw, International Law, Fifth Edition, (Cambridge: Grotius Publications Limited, 2008).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 261 jurisdiction.
Sovereignty refers to the legal personality of state, whereas jurisdiction specifically refers to the aspects of substance, special right, claims, liberties and power of state.
16 Sovereignty refers to the external dimension, in which a state as an actor playing in international level that has statehood, while jurisdiction refers to the internal dimension from a sovereign entity as a principle of a state in rule making and enforcement powers.
The jurisdiction is divided into jurisfaction, which is the power to make constitution and construe the constitution, and jurisfaction as a power to reconstruct the constitution, law implementation, verdict and punishment.
Article 1 of Chicago Convention 1944 governs that contracting states of convention admit that every state has its own complete sovereignty and exclusive airspace above its territory.
This article strengthens the state sovereignty of airspace, both internal and external.
External sovereignty is related to the state status as an international law subject, as a freedom state, which is the requirement to be a signatory state of Convention.
On the other side, internal sovereignty is related to the state jurisdiction inside the national area, where there is no scheduled air service that operates through or inside the state territory, except there is a special permission or the other state 16 Ian Brownlie, Principles of Public International Law, Ninth Edition, (Oxford: Clarendon Press, 2000), 106. authorization and according to the rule, a country exclusively master the airspace over its territorial area.
It gives a chance to the states to control the marketing access and protect the internal market and its airline toward international airspace market, from and through territory area.
Article 5 of Chicago Convention 1944 confirms about non-scheduled airline rights of the states aircraft (term used to mention the main convention subject) to make flight across or stop continuously without obtaining prior permission.
Nevertheless, article 6 requires states to obtain permission from the contracting state or their scheduled air service.
In addition, article 7 of Convention Chicago 1944 determines cabotage as a practice component of Chicago Convention in order to meet the sovereignty principle.
All international Civil Aviation system nowadays is based on Article 1 Chicago Convention 1944, as well as Article 5, 6, and 7 of Convention.
Right of Over flight and Traffic Right Right of over flight 17 and traffic right governed in Chicago Convention 1944 related to the type or aircraft is as follows: 17 In international Aviation Law, the definition of traffic right can be found in Article 5 and 6 Chicago Convention 1944 governing about non scheduled flight and scheduled flight, as well as in International Air Service Transit Agreement and International Air Transport Agreement dated at 7 December 1944.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 262 a.
Scheduled aircraft (Article 6 Chicago Convention 1944) Article 6 basically discusses about foreign aircraft that make flight must obtain a permission from the country where it flies.
It is understandable since there may be a race with national flights if there is scheduled flight.
In order to avoid that kind of condition, then permission is really needed.
Besides, scheduled flight is also governed in International Air Service Transit Agreement and International Air Transport Agreement dated at 7 December 1944.
18 Regarded to Article 6 (scheduled aircraft), the contracting states agree to make a separated agreement which is multilateral scheduled of independent flight exchange, that is International Air Services Transit Agreement or usually known as Two Freedom Agreement and International Air Transport Agreement or usually known as Five Freedom Agreement which each of them is discussed in separated part.
b. Non-scheduled aircraft (Article 5 Chicago Convention 1944) In non-scheduled aircraft, as it is regulated in Article 5, there are two categories which include (i) right to pass and right to land for non-traffic purpose, for 18 The rule stated in article 6 is actually about the failure of Chicago Convention to find formula for multilateral exchange of traffic rights.
Therefore, this Article 6 becomes “is therefore in essence a character for today`s existing bilateralism in regulation of scheduled services”.
example technical business and fuel filling and (ii) right in the carriage of passengers and so on, yet must obey the rule, requirement and limit made.
According to Nicolas Matte, article 5 is inspired by liberal spirit.
Matte said “Article 5 is inspired by relatively liberal spirit and is he basis for more liberal regulatory regime for non scheduled services and flight”.
This article 5 is actually a limitation of a state sovereignty in the airspace over it, as it is mentioned in Article 1 Chicago Convention 1944 that: every country has its own wholly and exclusive sovereignty on the airspace over it.
c. State aircraft (Article 3 (c) Chicago Convention 1944) The stipulation of article 3 (c) Chicago Convention 1944 said that state aircraft is forbidden to fly on the other area without right based on the specific agreement or other way, and obey regulations stipulated in that agreement.
That regulation restricts other states airspace breach.
Article 3 (c) gives specifications of breach restriction of airspace which is not only by civil aircraft, but also state aircraft, both fly or land on the other airspace state without permission stated in certain agreement.
From this article, it can be concluded that breach done by foreign aircraft (civil or military), both fly to enter airspace area or land on the other states, as a breach toward state sovereignty over the whole and exclusive airspace.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 263 d. Pilotless aircraft ( Article 8 Chicago Convention 1944) The stipulation of Article 8 Chicago Convention 1944, stated that pilotless aircraft is forbidden to fly over the contracting state airspace without special permission, thus, this kind of breach toward this regulation, the contracting state can do interception.
In doing interception, even though a state has a „full‟ and „exclusive‟ airspace sovereignty over the territorial area, states cannot deport (pursue) commercial aircraft lost from its flight area.
The international law, especially international civil aviation, admits that the right if a state does interception toward foreign aircrafts entering its airspace is based on a logic reason.
Interception is an action in order to defend the right and sovereignty of the country in airspace over its area if there is any breach on that area.
A further explanation about interception action toward breach has been governed in Article 3 Chicago Convention and also in Chapter 3.8 and Appendix 2 Annex 2 of Rule of the Air.
19 19 Annex 2 of Chicago Convention 1944 consists of 5 (five) parts.
Part 1 discusses abput the definition.
Part II is about applicability of the rules of the air.
Part III is about general rules, next Part IV is about visual flight rules, and the last Part V is about instrument flight rules.
Appendix A Annex 2 of Chicago Convention 1944 explains about signals, while Appendix B is about lights to be displayed by aircraft, replaced with Amendment 24 Annex 3, meanwhile Appendix C and D which each of them explains about rable of cruising level and unmanned free balloons.
Nevertheless, the problem of Interception Procedure toward civil aircraft is Cabbotage Principle toward Air Transportation Regulation Cabotage means navigation and trade along the coasting trade or petit (cabotage).
Nowadays cabotage is promised in commercial agreements across countries which is meant as a trade via sea that is held between two or more harbors in a state (grand cabotage), and it does not belong to the trade with colonial areas of a country.
20 Based on the sea law analogy, cabotage has been accepted in airspace law through Article 7 Chicago Convention 1944.
In this article, it determines that every contracting country has right to reject permission granting to the aircraft passengers carriage, post, cargo, by getting payment or renting, from each place to other places.
This article forbids every participant to give exclusive privilege toward the other contracting states or aviation companies belonged to foreign company and accept exclusive privilege (cabotage) from other countries.
Cabotage in aviation law is also known as the eight freedom, a right that can be promised based on the willingness of the other countries, that is a right to carry traffic from one place to another in one state areas.
Cabotage, both in sea carriage or air carriage, is a right that is closely related to the exclusive right of a state.
In the explained in Attachment A Annex 2 Chicago Convention 1944 20 Oppenheim, Lauterpach t in Mieke Komar, Airspace Law and Spatial Planning Law, (Bandung: Mandar Maju, 1994), 4.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 264 stipulation of international trade law governing civil aircraft, in Annex about the air service also excludes traffic rights and services related to the traffic rights (excludes traffic rights and all services directly related to their operation).
This annex is just valid for repair and maintenance of aircraft, trading and marketing of airline services, courier or management in space and computer reservation system.
3.
Challenges upon the Principles of International Air Law in Globalization Era Challenge in Politics The challenge in politics for the sovereignty of the aerial region since the assembly of the 52 delegations of the nations in Chicago at 1944.
After the end of World War II, the cooperation of the nations in term of civil aviation keeps growing in order to create world peace.
The Chicago convention in 1944 becomes the main tool in international standardization for civil aviation under the organizing of ICAO.
In term of protecting the freedom and security of plying, the recent civil aviation requires the political awareness of all nations and the international society as a whole.
The nation as the main actor is expected to be able to act properly in separated way as well as through the regional alliance.
For that, the nations and the regional cooperation indicates the willingness and the capability to adopt and adapt the regulations that protect importance of those who cross the nation borders.
21 One of the shape of challenge in term of politics upon the aerial region is the presence of those extremists and the terrorism that make the civil aviation as one of their target or the symbol of fighting back.
The attack to World Trade Center at 11 September 2001 is one of the most outrageous news for the world.
Al Qaeda did the hijacking the plane as the symbol of fighting back upon the main force and authority of economics and political of United State of America.
Challenge in Economics Globalization promises upon peace and prosperity in a scale that never happened before.
In the other hand, globalization indicates the unfairness, inequality, and “death” from the society and self-government.
Globalization in economics is signified by the birth of economic integration (market), multinational-corporation, the flow of capital across country borders, the establishment of international financial body, e-commerce, etc.
a.
International Economic Organization Naturally, the transaction of trading and the international monetary requires the 21 Erwin von den Steinen, National Interest and International Aviation,( The Netherlands: Kluwer Law International, 2006), 10.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 265 international regime in term of facilitating the flow of goods and service freely.
This can be realized through the international economics organization, such as World Trade Organization (WTO), the Association of Southeast Asian Nations (ASEAN), International Monetary Fund (IMF), or World Bank.
In case of nations having problem in economics and monetary, the concerned country can release some of its sovereignty in economics to the international bodies in order to execute the control upon the policy of its national economics.
For example, the policy in securing the monetary and about the Structural Adjustment Programs/SAP.
In case of giving urgent loan or postponement of payment, international economics organization execute the SAP to restructure the monetary of a nation.
WTO and ASEAN also liberate the air transport.
WTO through its GATS (Annex on air transport services), and ASEAN through AFAS (that later revised to ATISA) has prioritized sectors that one of them is air transport.
The liberation of air transport in term of creating a single aviation market for all nations of its membership.
b.
Economics Integration Economics integration is done in various levels, from the multilateral, regional, inter-regional, until the bilateral level.
Apart from the sign of trend upon the deal in bilateral integration, the development in two recent decades also signed by the trend of the development of integration and the proliferation of economics integration on the level of regional (Regional Integration Agreement-RIA).
While the form of economics integration in the sector of air transport is also done by several regions of the world apart from the European Union (EU) and the Andean Pact.
Since 1995, eight settings has born with the distribution of it around the world (two in United State, one in AsiaPacific, one in Middle East, and four in Africa).
Among these deals, seven of them provide the instant liberation or the gradual ones that lead to the access of the market fully.
Some of the other potential settings is also still running (in Europe, Northern Atlantic, Southern Pacific and Caribbean).
Also in ASEAN, the willingness to shape a single market of international aviation, shown in the scheme of ASAM that consists of several regional deals, some of which are ASEAN MAAS, ASEAM MAFLPAS, and ASEAN MALPAS.
c. Multinational Corporation The outspread of the major multinational corporation with the monetary power that nearly the same as the invasion of nations and markets are ones of the type of challenge upon the concept of economics sovereignty in the globalization era.
This case occurs as the implication from the deal of bilateral trade that contains the asymmetric responsibility or the policy of governmental unilateral that allows the Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 266 excessive flow of foreign capital to the national market and locate the domestic sector in the vulnerable position inside the competition.
Multilateral corporation in the air transport sector frequently occurs in Asia, Europe, United State and many more countries.
Challenge in Legal Sector a.
International Organization and Standardization One of the international organization in air transport sector is International Civil Aviation Organization (ICAO), as a civil aviation organization that has “the rule making function”.
As mentioned in article 44 of Chicago Convention of 1944, ICAO has the purpose to develop the principles and techniques of international air navigation and helping the planning as well as the development of international air transport.
ICAO established as the international legislator in term of giving the framework of international law for the air navigation service.
Every attempts in making the rule (legislative) in the field of air navigation, and more specifically, the provision across the borders of air navigation, firstly must be approached from the international angle to create the international uniformity in the field of civil aviation.
The Chicago Convention of 1994 is the constitution for the ICAO that mentioned from article 43 to 96.
The device regulation of ICAO has some requirements: first, the constitution of ICAO or the main source of law that is the Chicago Convention of 1944.
Second, the rules are additional or usually called annexes that commonly consists of “standards” and “recommended practices” 22 .
Third, the rule is a guide that is technical and is out of the “standards” and “recommendation”, but it is expected to be followed in applying the rules of annex (attachment on annex).
Fourth, it is about procedure of Air Navigation Service Operation of Aircraft (PANS-OPS), it is actually the requirement that has the characteristics of an annex, yet due to certain situations it cannot be classified as annex.
b.
Jurisdiction of National Extraterritorial Law 22 Standards is the requirements that must be followed for safety reason and if a nation cannot establish one of the requirement in the standards, the nation must notify ICAO.
Standards here is every single specification, physical characteristics, configuration, material, performance, personnel, or procedure.
The uniformity of application mentioned is needed to run the rule of security of navigation of aerial in international and to all nations of its membership, they can adjust in accordance to the convention; if there are some impossibility in fulfillment, then they must propose the notification to board according to article 38.
While the recommended practice is the requirements suggested to be used by the nations for the better safety in aviation.
The recommended practice is all the specification of physical character, configuration, material, performance, personnel, and procedure.
Such uniformity of application is needed for the sake of safety, rules and effectiveness navigation in the international aerial fields, and for the nations of its member that will struggle to adjust itself in accordance to the convention.
The device of standards and recommendation, however, is rearranged for the convenience or known as appendixes.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 267 Jurisdiction of national extraterritorial law used in several nations based on the national importance, whether it is in economics, military, environment, also security and defense.
This jurisdiction is related to the authority to make rules, execute and uphold that certain rules.
23 IV.
CONSLUSIONS AND SUGGESTIONS The optimization of using the aerial space, as the asset of development must founded on the harmony of importance in prosperity as well as security.
In this case, it needs a correct, comprehensive, and integrated strategy that cover the approach upon law, technology, economics, human resources, socio-culture, environment, security, and defense, organization, institutional, etc.
In the context as a nation, the use of sovereignty of a nation upon the aerial space, in the near future, it is needed to revitalize the function of the strong regulation.
This can be started by reevaluating the regulations that is continued by the arrangement of the anatomy of the setting that is comprehensive, systematic, careful, effective and also efficient also based on two importance that are prosperity and security.
23 One of the case example is the closure of a the case of Nauvelles Frontieres by the the European Court of Justice, on 30 th of April 1986.
The other example is the European Union through Council Directive 2003/87/EC, established the rule about emission emitted from the aviation activity that is named European Emission Trading Scheme (EU ETS).
REFERENCES Journal Articles Francesco Gaspari, „The EU Air Transport Liberalization and Re-Regulation‟, (2011) 11 2 International and Comparative Law Review Hussein Kassim and Handley Stevens, „Air Transport and The Eropean Union: Europeanization and its Limit‟, (2010) Palgrave Macmillan-UK John Cobb Cooper, „Backgrounds of Internasional Public Air Law‟, (1967) 1 3 Yearbook of Air and Space Law.
Stepen M. Shrewsbury, „September 11 th and The Single European Sky: Developing Concepts of Airspace Sovereignty‟, (2003) 68 Journal of Air Law and Commerce, 115.
Stephen D. Krasner, „Abiding Sovereignty‟, (2000) 22 3 International Political Science Review / Revue internationale de science politique.
Thomas Blom Hansen & Finn Steputat, „Sovereignty Revisited‟, (2006) 35, Annual Review of Anthropology.
Books Boer Mauna, Pengertian, Peranan Dan Fungsi Dalam Era Dinamika Global, (Bandung: PT Alumni, 2003).
Erwin von den Steinen, National Interest and International Aviation, (The Netherlands: Kluwer Law International, 2006).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 268 Hans Kelsen, Teori Umum tentang Hukum dan Negara, diterjemahkan oleh Raisul Muttaqien, (Bandung: Nusa Media, 2011).
Ian Brownlie, Principles of Public International Law, Ninth Edition, (Oxford: Clarendon Press, 2008).
Malcolm N. Shaw, International Law, Fifth Edition, (Cambridge: Grotius Publications Limited, 2008).
Mieke Komar, Airspace Law and Spatial Planning Law, (Bandung: Mandar Maju, 1994).
Niels van Antwerpen, Cross Border Provision of Air Navigation Services with Spesific Reference to Europe, (The Netherland: Kluwer Law International) Paul Stephen Dempsey and Andrew R. Goetz, Airline deregulation and laissez-faire mythology, Quorum Books, (Connecticut-London: Westport, 1992).
T. Bambang Widiarto, Tinjauan Hukum Udara sebagai Pengantar: Dalam Perspektif Hukum Internasional dan Nasional, (Jakarta: Pusat Studi Hukum Militer, 2015).
60 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.05 The Supremacy of the Dispute Settlement Mechanism (DSM) under the World Trade Organization (WTO) I Gusti Ngurah Parikesit Widiatedjaa a Faculty of Law Udayana University Jl.
Pulau Bali No.1 Denpasar Email: ngurahparikesit@gmail.com Submitted : 2019-01-16 | Accepted : 2019-03-25 Abstract: The existence of inequality and poverty in some countries doubted the contribution of the WTO.
The overwhelming spirit of national interest through the imposition of discriminatory and protective measures has deteriorated the WTO.
Given its role for enforcing trade commitments, the dispute settlement mechanism is crucial to save the future of WTO.
This paper aims to analyse the existence of the dispute settlement mechanism of WTO, whether it is still supreme in upholding the vision of trade liberalization.
This paper argues that the supremacy of this mechanism has ensured the future of WTO by looking at two parameters.
Firstly, it has a ruled-based character with a high level of legalism.
Next, by looking at the decision of the Panel and the Appellate Body, the dispute settlement mechanism has effectively controlled the overwhelming spirit of national interest.
This mechanism shows its supremacy by limiting the capacity of the WTO member states to impose discriminatory and protective measures, particularly related to public morals exception and cultural concern.
Keywords: supremacy; dispute settlement mechanism; world trade organization.
I.
INTRODUCTION The existence of World Trade Organization (‘WTO’) that promotes trade liberalization has been doubted as the inequality and poverty occur in some countries.
1 Muhammad Yunus, the Nobel Peace Prize’s winner, denoted that the inequality of income was undeniable, 1 I Gusti Ngurah Parikesit Widiatedja, Kebijakan Liberalisasi Pariwisata: Konstruksi Konsep, Ragam Masalah, dan Alternatif Solusi (Udayana University Press, 2011) 34. pointing out 40 percent of population controlled 94 percent of the global income when 60 percent people relished only six percent of the income.2 Stiglitz then revealed that the implementation of trade liberalization without preparing safety nets, with lacking reciprocity and backing on the 2 Muhammad Yunus, ‘Nobel Lecture’, 10 December 2006 <http://nobelprize.org/nobel_prizes/peace/laureat es/2006/yunus-lecture-en.html>.
mailto:ngurahparikesit@gmail.com Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... | 61 part of developed economies, may lead to an upsurge in poverty.3 The following empirical studies showed how the two basic problems above still existed, making the WTO difficult to realize world’s prosperity.
Specifically, wage’s gap was still unresolved in countries, for example, Indonesia, 4 Colombia, 5 and India.6 Besides, in 2015, the United Nations Development Programme (‘UNDP’) illustrated that between 1990 and 2015, where the global average of extreme poverty reduced from 47 to 14 percent, Sub-Saharan Africa only reduced from 57 to 41 percent.7 The poverty rate in Central Asia, Europe and Africa was analysed by the World Bank.
8 In Europe and Central Asia, from 272.4 millions of total population with 0.7 percent the growth of population, less than two percent population living under $1.25 per day.9 Conversely, in Africa, from 936.3 million total population with 2.7 percent the growth of population, 46.8 percent Population living under $1.25 per day.10 There has been a constant protest over WTO meeting across the globe, criticizing the urgency of WTO for reducing poverty and inequality.
For instance, when Indonesia 3 Joseph Stiglitz, ‘Addressing Developing Country Priorities and Needs in the Millennium Round’ in Roger B Porter and Pierre Sauve (eds), Seattle, the WTO and the Future of the Multilateral Trading System (Harvard University Press, 2000) 55.
4 Ibid 69.
5 Adrian Wood, ‘Openness and Wage Inequality in Developing Countries: The LatinAmerican Challenge to East Conventional Wisdom’ (1997) 11(1) World Bank Economic Review 57, see also Orazio Attanasio, Pinelopi Goldberg and Nina Pavcnik, ‘Trade Reforms and Wage Inequality in Colombia’ (2004) 74 Journal of Development Economics 366.
6 The Organization for Economic Co-operation and Development, Special Focus: Inequality in Emerging Economies (EEs) (OECD, 2011) 53.
7 United Nations Development Programme, Human Development Report 2015 (United Nations,2015) 58.
(Bali) was a host of WTO annual meeting in 2013, protesters revealed their critics over the application of trade liberalization.
They claimed that Bali Package was meaningless for Indonesia, and only downgraded civil servants and farmers, making Indonesia as a prey of trade measures.11 The overwhelming spirit of national interest also put WTO at risk, leading to the failures to issue trade deals.12 For example, the deadlock of the Doha Development Agenda (‘DDA’) due to the unsettled discrepancy between developing countries and developed countries on issues associating to, among other things, agriculture and trade remedies.
13 This deadlock has triggered member states to find other trade negotiations (such as Preferential Trade Agreements (PTAs) to continue their economic cooperation, particularly to intensify trade and investment flows.
Some countries’ local policies also deteriorate the abovementioned fact.
Specifically, some EU’s states increased trade limitation to cross-border mergers, to 8 World Bank, The World Bank Group A to Z (World Bank, 2016) 52.
9 Ibid.
10 Ibid.
11 Ni Komang Erviani and Tassia Sipahutar, ‘AntiWTO activists make their move’ on The Jakarta Post (Online) (3 December 2013), <http://www.thejakartapost.com/news/2013/12/03 /anti-wto-activists-make-their-move.html> 12 I Gusti Ngurah Parikesit Widiatedja and I Gusti Ngurah Wairocana, ‘The Rise of the Spirit of National Interest and the Existence of World Trade Organization Agreement: A Case Study of Indonesia’ (2017) 4(2) Padjajaran Journal of Law 319.
13 BBC News (Online), World Trade Talks End in Collapse (29 July 2008), <http://news.bbc.co.uk/2/hi/business/7531099.stm >.
http://www.thejakartapost.com/news/2013/12/03/anti-wto-activists-make-their-move.html http://www.thejakartapost.com/news/2013/12/03/anti-wto-activists-make-their-move.html http://news.bbc.co.uk/2/hi/business/7531099.stm http://news.bbc.co.uk/2/hi/business/7531099.stm Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 62 | Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... prevent the loss of national vanity and jobs.14 In the same way, the president of USA, Donald J Trump conducted anti-dumping measures to unilaterally convict any countries whose products were harming local producers.15 Indonesia imposed several nontariff barriers (NTBs), such as export restrictions and import licenses although it had reduced its tariffs.
16 Finally, some countries imposed trade measures for guarding what they have assumed as local cultures that may fall within the scope of ‘inefficient protectionism’.17 Despite international courts may be unable to ask member states for respecting their decisions, 18 a dispute settlement mechanism (‘DSM’) has a salient role for upholding the commitments agreed under trade negotiations.
19 Any trade agreements would not have been agreed without having the DSM.20 Matsushita explained that trade agreements required trade rules and enforcement because trade agreements would not be able to avoid and eliminate the states’ trend to deviate from market access commitments.21 14 Raymond J. Ahearn, Europe: Rising Economic Nationalism?
(CRS Report for Congress, 2006) <http://research.policyarchive.org/4378.pdf>.
15 World Policy, Trump and Trade Bilateralism on World Policy (Online) (12 January 2017), <http://www.worldpolicy.org/blog/2017/01/12/tru mp-and-trade-bilateralism>.
16 Margit Molnar and Molly Lesher, ‘Indonesia’ in Organization for Economic Cooperation and Development, Globalisation and Emerging Economies: Brazil, Russia, India, Indonesia, China, and South Africa (OECD, 2008) 334.
17 Krista Boryskavich and Aaron Bowler, ‘Hollywood North: Tax Incentives and the Film Industry in Canada’ (2002) 2 Asper Review of International Business and Trade Law 25, 26.
18 Karen J Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014) 32.
19 World Trade Organisation Secretariat, World Trade Report 2007: Six Decades of Multilateral Co-operation – What Have We Learned?
(WTO, 2007) 155.
20 Ibid.
Amid the gloomy picture of the future of WTO, the existence of the DSM consisting of the Dispute Settlement Body (‘DSB’) and the Appellate Body (‘AB’) has saved WTO’s future.
The DSM WTO has adjudicated 405 disputes, putting it as the most productive of all international dispute settlement mechanism.22 Some experts have praised the productivity of the DSM WTO.
Zimmermann (2005) denoted that the DSB WTO has effectively implemented the accurate time limits throughout the process of dispute settlement.
23 Lockhart and Voon (2005) stated that the WTO appellate review was effective, that should be a role model in the development of international trade law.24 Similarly, Guzman and Pauwelyn (2012) concluded that the DSM WTO was one of the most remarkable of WTO’s feature.25 DSM WTO whether it falls within the scope of a legal-character or just a politicalcharacter.
This paper aims to analyse the existence of the DSM WTO, whether it is still supreme in upholding the vision of trade liberalization in realizing world’s prosperity.
The questionable contribution of WTO in 21 Mitsuo Matsushita (et al), The World Trade Organization: Law, Practice, and Policy (Oxford University Press 3rd ed, 2003) 8.
22 Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge University Press, 2010) 169.
23 Thomas A. Zimmermann, ‘WTO Dispute Settlement at Ten: Evolution, Experiences &Evaluation’ (2005) 60 The Swiss Review of International Economic Relations 53.
24 John Lockhart and Tania Voon, ‘Review of the Appellate Review in the WTO Dispute Settlement System’ (2005) 6 Melbourne Journal of International Law 476.
25 Andrew T.Guzman and Joost H.B.
Pauwelyn, International Trade Law (Wolters Kluwer, 2nd ed., 2012) 127, See also Nicolette Butler, ‘In Search of a Model for the Reform of International Investment Dispute Resolution: An Analysis of Existing International and Regional Dispute Settlement Mechanisms’ in Jean E. Kalicki and Anna Joubin-bret (eds), Reshaping the InvestorState Dispute Settlement System: Journeys for the 21st Century (Nijhoff, 2015) 355. http://research.policyarchive.org/4378.pdf http://www.worldpolicy.org/blog/2017/01/12/trump-and-trade-bilateralism http://www.worldpolicy.org/blog/2017/01/12/trump-and-trade-bilateralism Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... | 63 reducing poverty and inequality, along with the escalation of the spirit of national interest may put the future of WTO at risk.
This paper, however, argues that the existence of the DSM WTO has ensured the future of WTO by looking at two parameters.
Firstly, it will analyse the character of the of DSM.
Secondly, it will analyse how the Panel and the Appellate Body, through their decisions, have responded the trend of the rise of national interest, which can be traced through discriminatory and protective measures of the WTO member states.
This paper starts by explaining the DSM WTO, consisting of the history of the DSM under the GATT 1947 and the current procedure of the DSM WTO, including Indonesia’s participation.
It then turns to analyse the character of the DSM WTO whether it falls within the scope of political or legal character of DSM.
Finally, this paper analyses the decision of the Panel and the Appellate Body in responding the rise of the spirit of national interest through the imposition of protective and discriminatory measures.
II.
LEGAL MATERIAL AND METHODS This paper is normative legal research, which based on primary on international agreement related to the dispute settlement mechanism and the decision of the Panel and Appellate Body, secondary one included references from books, journal articles, internet resource such as news and other 26 General Agreement on Tariffs and Trade 1994, Apr.
15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 U.N.T.S.
187, 33 I.L.M.
1153 (1994) art.
XXII [GATT 1994].
27 Ibid art.
XXIII.
28 Leslie JOHNS, Strengthening International Courts: The Hidden Costs of Legalization (University of Michigan Press, 2015) 135. documents having correlation with the paper issues.
This paper use legal interpretation to analysis the data.
III.
RESULT AND DISCUSSION The Dispute Settlement Mechanism under the WTO a.
The dispute settlement mechanism under the GATT The existence of the DSM GATT 1947 coloured the history of the DSM WTO.
Initially, contracting parties could start the process of dispute settlement through submitting consultation.
26 A contracting party could demand this practice if it deemed other parties had been unsuccessful to implement GATT’s obligations or ‘nonviolation nullification or impairment of the benefits of GATT’.
27 Contracting parties could undertake consultation with or without the presence of a mediator or working party.28 If the consultations was unsuccessful to settle disputes, the working party that covered representatives from all related parties, mostly the parties to the dispute, 29 had to ‘promptly investigate’ and submitted a report with recommendations, for adoption by the contracting parties.30 The panel then substituted working parties’ role to settle a dispute among GATT contracting parties.
If a particular party was displeased with the result, it could propose the formation of an ad hoc panel to enact a legal recommendation on the designated matter.
The panel consisted of three or five 29 The World Trade Organization, Historic Development of the WTO Dispute Settlement System <https://www.wto.org/english/tratop_e/dispu_e/di sp_settlement_cbt_e/c2s1p1_e.htm> [WTO 2].
30 Amelia Porges and John H. Jackson, ‘The WTO and the New Dispute Settlement’ (1994) 88 American Society of International Law 131-139.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 64 | Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... autonomous professionals (who were not essentially jurists) who had no connection to the dispute’s parties.
31 A respondent party, however, could postpone or block the panel’s establishment.32 With a neutral calculation, the panel then enacted a report that was binding only after the GATT Council’s approval.33Again, the respondent party had been granted a veto right to block the panel report’s adoption.
The presence of a veto right that enables contracting parties to block the establishment of the panel and the report of the panel shows the political style of the DSM GATT.
There is no ‘automatic’ right to avoid this blocking scheme from happening.
Therefore, according to Hudec (1975), the DSM that ended up with a GATT ruling is a ‘punch that will not hit anyone’.34 b.
The Dispute Settlement Mechanism under WTO The primary goal of the WTO DSM is to promptly resolve the WTO members’ disputes concerning the particular rights and obligations of the WTO members.
35 According to Article 3.3 of the DSU, the prompt and efficient of such quarrels is crucial to the effective WTO’s function and the balance between the member’s rights and obligations.36 The current mechanism of the DSM WTO consists four stages: 31 Nellie Munin, ‘The Evolution of Dispute Settlement Provisions in Israel’s PTAs: Is There a Global Lesson?’ (2010) 44(2) Journal of World Trade 388.
32 Marc L. Busch, ‘Democracy, Consultation, and the Panelling of Disputes under GATT’ (2000) 44(4) The Journal of Conflict Resolution 428.
33 WTO 2, above n 24.
34 Robert E. Hudec, The GATT Legal System and World Trade Diplomacy (Praeger, 1975) 219.
35 Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge University Press, 2010) 169.
36 Dispute Settlement Rules: Understanding on Rules and Procedures Governing the Settlement of Disputes, Marrakesh Agreement Establishing the consultations, panel report, Appellate Body report (AB report), and DSB adoption.
The DSM WTO is commenced when a member proposes consultations with the other member states.
37 The responding member has to answer to this proposal in ten days, and then it has to come into good faith consultations in 30 days after getting the proposal.38 If the consultation is unsuccessful in 60 days, a panel is created.39 Except the members to a dispute agree otherwise, the panel consists three or five panellists (who are not essentially jurists) nominated from the list of Secretariat.
40 Although the panellists act on behalf of their individual capabilities, the point that the quarrelling members have to agree on the panellists can affect their position.
41 Next, the disputing members explain their proposal to the panel, and then, the panel enacts final report, containing recommendations and conclusion.42 The Dispute Settlement Body (DSB) accepts this report within 60 days, unless if there is a consent against adoption.43 If the disputing members are disagreeing with the report of panel, the Appellate Body (‘AB’) hands over the case.
Different than the panel, the AB has a permanent configuration, encompassing seven independent legal professionals44 who serve for a four-year term, renewable only World Trade Organization, Annex 2, 1869 U.N.T.S.
401, 33 I.L.M.
1226 (1994) art 3.3 [DSU].
37 Nguyen Tan Son, ‘Towards A Compatible Interaction between Dispute Settlement under the WTO and Regional Trade Agreements’ (2008) 5 Macquarie Journal of Business Law 113-135.
38 DSU above n 31, art.
4.3.
39 Ibid art.
4.7 and 4.8.
40 Ibid art.
8.4 and 8.5.
41 Bernhard ZANGL, ‘Judicialization Matters!
A Comparison of Dispute Settlement Under GATT and the WTO’ (2008) 52(4) International Studies Quarterly 825-854.
42 DSU above n 31, art.
16.4.
43 Ibid art.
16.4.
44 Ibid art.
17.1.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... | 65 once.
45 The recommendations and conclusions of the AB report are automatically adopted by the DSB, except the DSB rules by consensus not to follow the AB report.
46 The application of the recommendations (either the panel or the Appellate Body) has to be executed for ‘a reasonable period of time’.
47 When the responding member is disobey the final decision, the complaining member can carry out temporary trade retaliation, 48 and the extent of this measure is the arbitration’s object.49 c. Indonesia’s Participation Under the DSM WTO, Indonesia was embroiled in some disputes.
In 1995, as a third party, Indonesia participated in Brazil – Desiccated Coconut, complaining a countervailing duty of Brazil executed on desiccated coconut and coconut milk imported from the Philippines.
50 In Indonesia – Certain Measures Affecting the Automobile Industry in 1996, The EU, Japan, and the USA filled a complaint to Indonesia concerning the program of National Car.
51 They accused that the exception from luxury taxes and customs duties on imports of ‘national vehicles’ and machineries thereof, violated of Indonesia’s responsibilities under Articles I and III of GATT 1994, Article 2 of the TRIMs Agreement and Article 5(c) of the 45 Louise Johannesson and Petros C. Mavroidis, ‘The WTO Dispute Settlement System 1995-2016: A Data Set and Its Descriptive Statistics’ (2017) 51(3) Journal of World Trade 357–408.
46 DSU above n 31, art.
17.4.
47 Ibid art.
21.3.
48 Ibid art.
22.
49 Ibid art.
22.7.
50 WTO Appellate Body Report, “Brazil – Measures Affecting Desiccated Coconut” (WTO Doc WT/DS22/AB/R, 20 March 1997) 167.
51 WTO Panel Report, “Indonesia – Certain Measures Affecting the Automobile Industry”(WTO DocWT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R, Corr.
1,Corr .2, Corr.
3, and Corr.4, 23 July 1998) 2201.
Agreement on Subsidies and Countervailing Measures (SCM Agreement).
52 The Panel then supported this accusation, ruling Indonesia derogated those agreements.53 The program of national car was an instance how Indonesia had promoted national interest to deviate from the WTO agreement.
Nevertheless, this interest was not essentially the national interest, but somewhat the interest of family elite’s by considering at the parties who were embroiled in this discriminatory program.
Specifically, one of president’s children was the chief of corporation that was given a license to import ‘national car’ from Korea without requiring an duty to pay what has been called (at that time) as the obligatory 35 percent lavish tax on cars.54 Since 1998, Indonesia has been involving in the WTO dispute as a respondent for 10 disputes, a complainant for 10 disputes and a third party for around 17 disputes.
55 For instance, in US — Clove Cigarettes, promoting what it called as national interest, Indonesia filled a lawsuit, protesting the US’s ban on clove cigarettes from Indonesia, but permitting the local cigarettes’ production and sale.
56 The AB then upheld this complaint, ruling the ban deviated of national treatment principle under the agreement of Technical Barriers to Trade (‘TBT’).57 52 Ibid.
53 Ibid.
54 Thomas Lindblad, ‘The Political Economy of Recovery in Indonesia’ in Jolle Demmers (etal), Good Governance in the Era of Global Neoliberalism (Taylor and Francis, 2004) 219.
55 WTO, ‘Dispute Settlement: Disputes by country/territory’, <https://www.wto.org/english/tratop_e/dispu_e/di spu_by_country_e.htm>.
56 Appellate Body Report, ‘United States – Measures Affecting the Production and Sale of Clove Cigarettes’ (WT/DS406/AB/R, adopted 24 April 2012, DSR 2012: XI) 5751 57 Ibid.
https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS22/AB/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS54/R*&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS55/R*&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS59/R*&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS64/R*&Language=English&Context=ScriptedSearches&languageUIChanged=true Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 66 | Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... For Indonesia, the decision of WTO Dispute Settlement was relatively objective.
The national car case showed how the domestic policy of Indonesia had conlicted the WTO agreement so that it was sensible if the Appellate Body then nullified this policy.
On the other hand, Indonesia gained a significant benefit when the Appellate Body annulled the domestic policy of the US that prohibited clove cigarettes from Indonesia, but allowing the existence of local cigarettes, leading to the violation of national treatment principle.
Why the Dispute Settlement Mechanism WTO is still Supreme?
a.
The Ruled-Based Mechanism of the WTO Dispute Settlement Some experts classified the character of the DSM in trade agreements.
Munin (2010) divided the DSM into political or legal character.
58 The following structures reflect the political character of the DSM: The absence of final decision or simply political mechanism; the decision-making mechanism is determined by consensus; and the lack of comprehensive legal stage.
59 In contrast, if the decision of the DSM is binding, and a third authority is dynamically involved (subject to parties’ consensus) to settle the dispute, the legal character of the DSM has been used.60 Jo and Namgung (2012) categorized the level of legalism of the DSM into ‘low’, ‘medium’, and ‘high’.61 ‘Low’ reflects to a 58 Munin, above n 30, 393.
59 Ibid.
60 Ibid.
61 Hyeran J and Hyun Namgung, ‘Dispute Settlement Mechanisms in Preferential Trade Agreements: Democracy, Boilerplates, and the Multilateral Trade Regime’ (2012) 56(6) Journal of Conflict Resolution 1041.
62 Ibid.
63 Ibid.
64 Ibid, 1044. condition wherein agreements do not permit the existence of third-party or there has been a non-binding nature third–party’s decision.62 Afterwards, ‘medium’ reflects to the binding nature of third-party’s decision.63 Finally, ‘high’ legalism is taken place through the presence of permanent standing tribunals in the DSM.64 The DSM WTO has a legal character with high level of legalism.
Firstly, the existence of AB that is a permanent and independent body, encompassing legal experts who serve with fixed terms.
The AB also has a more functional and administrative autonomy likes budget and legal personality.
Islam (2006) analysed how the DSM WTO implemented a rule-oriented process through the presence of the “covered agreements” as the basis of law, decreasing the discrepancies of power, protecting the legitimate interests of member, and preventing the abusive exercise of rights.65 Zangl (2008) then examined how the panel has been required to put appropriate legal reasoning as, otherwise, its report will be negated by the AB.
66 Furthermore, the DSM WTO was able to correct some weaknesses of the DSM GATT,67 changing the political character of the DSM GATT into a more legal character.
Finally, Bown (2005) acclaimed how the DSM WTO had removed the blocking mechanism that allowed members to avoid the commencement of a dispute, the establishment of the panel, and the adoption of the panel report.68 65 M. Rafiqul Islam, International Trade Law of the WTO (Oxford University Press, 2006) 428.
66 Bernhard Zangl, ‘Judicialization Matters!
A Comparison of Dispute Settlement under GATT and the WTO’ (2008) 52(4) International Studies Quarterly 825.
67 John H Jackson, The World Trading System: Law and Policy of International Economic Relations (MIT Press, 1997) 117.
68 Chad P. Bown, ‘Participation in WTO Dispute Settlement: Complainants, Interested Parties and Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... | 67 The next rationales for the DSM WTO is the existence of ‘inherent powers’, 69 including the authority to administer the proceedings to the degree essential to accomplish their adjudicative role.
70 By having this power, tribunals could freely determine what evidence to concede, and how to weigh that evidence.71Besides, under the DSM WTO, whenever a member states intend to fill a complaint against another WTO member states, it can request tribunal proceedings without the defending party’s consent.
72 This mechanism differs from typical international tribunal where states can only be sued before an international tribunal if they have consented to the tribunal’s jurisdiction.73 The legal character of the DSM WTO has put all its member states equally, particularly in the participation under the DSM WTO.
Specifically, it has attracted developing countries’ participation.
Brazil (30 complaints), India (23 complaints), Argentina (21 complaints), Mexico (21 complaints), and Indonesia (10 complaints) are among the recurrent users of the DSM.74 China (that joined the WTO in 2001), has Free Riders’ (2005) 19(2) The World Bank Economic Review 293.
69 Andrew Mitchell and David Heaton, ‘The Inherent Jurisdiction of WTO Tribunals: The Select Application of Public International Law Required by the Judicial Function’ (2010) 31 Michigan Journal of International Law 561.
70 Michelle Grando, Evidence, Proof and FactFinding in WTO Dispute Settlement (Oxford University Press, 2009) 54.
71 Tania Voon, ‘Evidentiary Challenges for Public Health Regulation in International Trade and Investment Law’ (2015) 18 Journal of International Economic Law 800.
72 David Unterhalter, ‘What Makes the WTO Dispute Settlement Procedure Particular: Lessons to be Learned for the Settlement of International Disputes in General?’ in Rüdiger Wolfrum and Ina Gätzschmann (eds), International Dispute Settlement:Room for Innovations?
(Springer,2013)6.
73 Ibid.
filed some important cases against both the European Union and the United States.
75 Interestingly, developing economies magnificently beat economic superpower states in some WTO disputes.
For example, US –Underwear, a complaint by Costa Rica; US — Clove Cigarettes, a complaint by Indonesia; and even more so US – Gambling, a complaint by Antigua, which has a population only 67,000.
Although the DSM WTO seems ideal, there has been a weakness over this process.
The legalisation of this mechanism requires arduous financial and human resources that are often deficient in developing economies.
Besides, because of the inequalities of market power, the retaliatory remedy looks not to be an effective process to any member states,76 excluding the powerful one, such as the European Union and the United States.77 b.
The Decision Can Effectively Control the Overwhelming Spirit of National Interest 1) Discriminatory Measures by Using Public Morals Exception 74 This can be traced through Map of Disputes Between WTO Members, <https://www.wto.org/english/tratop_e/dispu_e/di spu_maps_e.htm> 75 Gary N. Horlick and Katherine fennell, ‘WTO Dispute Settlement from the Perspective of Developing Countries’ in Yong-Shik Lee, Gary N. Horlick, Won-Mog Choi and Tomer Broude (eds), Law and Development Perspective on International Trade Law: The Law and Development Institute (Cambridge University Press, 2011)164.
76 See, for example, Chad P. Bown, ‘On the Economic Success of GATT/WTO Dispute Settlement’ (2004) 86 The Review of Economics and Statistica 811.
77 William J. Davey, ‘Dispute Settlement in the WTO and RTAs: A Comment’ in Lorand Bartels and Federico Ortino (eds), Regional Trade Agreements and the WTO Legal System (Oxford University Press, 2006) 355.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 68 | Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... As mentioned earlier in the introductory section, the overwhelming spirit of national interest has put WTO at risk.
The unfinished debate between developing countries and developed countries has led to the deadlock of the DDA.
Many WTO member states also impose discriminatory measures to promote what they have been regarded as a national interest.
Historically, during the 1930s Great Depression, many states conducted discriminatory trade policies, causing to political and economic crises.
78 This fact was one of the major contributing aspects of the World War II.79 Therefore, when today’s discriminatory practices are not properly handled, it would harm the future of the WTO and international trade governance.
The preamble of the WTO expressly stated that the primary goal of the multilateral trading system is ‘the elimination of discriminatory treatment in international trade relations’.80To elaborate this goal, the Appellate Body in EC – Banana III held that the nature of the non-discrimination duty is that ‘like products should be treated equally, irrespective of their origin’.81 Due to its vague meaning, the use of public morals exception can be employed as a justification to impose discriminatory 78 Van Den Bossche, Above n 21, 321.
79 Ibid.
80 Andrew D Mitchell and Nicolas JS Lockhart, ‘Ensuring Compliance between a Bilateral PTA and the WTO’ in SisiraJayasuria, Donald MacLaren and Gary Magee (eds), Negotiating a Preferential Trading Agreement: Issues, Constraints and Practical Options (Edward Elgar, 2009) 235.
81 Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of Bananas (WT/DS27/AB/R,25 September 1997) Para 190.
82 I Gusti Ngurah Parikesit Widiatedja, Can Indonesia Invoke Public Morals Exception under the World Trade Organization (WTO) for Prohibiting Cross-Border Gambling?
(2018) 7(2) Yustisia 261, 263. measures through trade barriers that they assumed were in public morals’ interest.
82 Specifically, Canada explicitly showed its ban for child pornography, and materials considered obscene, treasonous, or seditious.
83 Colombia banned pornographic material containing minors.
84 In the same way, South Korea and Mozambique forbid pornographic materials despite it did not expressly mentioned what particular type of pornography was.85 The following disputes, however, shows how the decision of the Panel and the Appellate Body has successfully controlled the discriminatory measure of WTO member states by employing public morals exception.
All these measures were eventually classified as ‘arbitrary or unjustifiable discrimination’ or a ‘disguised restriction on international trade’ following Article XX GATT 1994.
In US – Shrimp, U.S shrimp trawlers was required by Endangered Species Act to apply ‘turtle excluder devices’ (TEDs) that enabled shrimp to go through to the rear of the net while avoiding turtle from doing so.86 Despite this measure was needed to ‘the conservation exhaustible natural resources’, the AB rules that such measure was ‘unjustifiable discrimination.’ 87 The rationale of this decision was that this 83 WTO Secretariat, ‘Report of the WTO Secretariat on the Trade Policy Review of Canada’ (WT/TPR/S/53, 19 November 1998) para 46.
84 WTO Secretariat, ‘Report of the WTO Secretariat on the Trade Policy Review of Colombia’ (WT/TPR/S/172/Rev.1, 3 April 2007) para 41.
85 WTO Secretariat, ‘Report of the WTO Secretariat on the Trade Policy Review of South Korea’ (WT/TPR/S/137.
18 August 2004) para 54, and WTO Secretariat, ‘Report of the WTO Secretariat on the Trade Policy Review of Mozambique’ (WT/TPR/S/79, 21 December 2000) para 33.
86 Appellate Body Report, ‘United States – Import Prohibition of Certain Shrimp and Shrimp Products’ (WT/DS58/AB/R, 6 November 1998) para 138.
87 Ibid.
http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Sisira%20Jayasuria http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Donald%20MacLaren http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Donald%20MacLaren http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Gary%20Magee https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS27/AB/R&Language=English&Context=ScriptedSearches&languageUIChanged=true Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... | 69 measure stipulated other WTO members to adopt the similar program and enforcement mechanisms as the U.S without seeing their dissimilar situation that may take place in those other members’ territory.88 In US-Gambling, the panel checked the range of application of the Interstate Horseracing Act (‘IHA’).
The text of the IHA explained that ‘[a]n interstate off-track wager may be accepted by an off-track betting system’ when approval was attained from particular organizations.89 Simply speaking, the panel and the AB argued that the IHA permitted domestic service providers, but not foreign providers, to deal remote betting services concerning certain horse races.90 As a consequence, the U.S was unable to prove that its measures did not fall within the meaning of ‘arbitrary and unjustifiable discrimination’.91 In ECSeal Products, both the Panel and the Appellate Body analyzed the TBT agreement, holding that the EU Seal Regime was a inequitable measure as it was intended to provide an advantage for seal products reaped by Greenland's Inuit groups over Canadian Inuit groups from the means this measure was undertaken.
92 Specifically, the EU Seal Regime allowed the sale of seal products if those products are: (i) originated from hunts conducted by indigenous societies; (ii) originated from hunts that were undertaken for the sustainable administration of marine resources; or (iii) individually 88 Ibid.
89 Appellate Body Report, ‘United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services’ (WT/ DS285/AB/R, 7 April 2005) para 34.
90 Ibid.
91 Ibid.
92 Appellate Body Report, ‘European Communities Measures Prohibiting the Importation and Marketing of Seal Products (WT/DS400/AB/R, WT/DS401/AB/R, 22 May 2014) para 44.
93 Ibid.
94 Ibid.
imported into the EU by tourists.93In the final report, the AB ruled that the EU Seal Regime destructively impacted the circumstances of competition for Norwegian and Canadian seal products when compared to Greenlandic seal products.
94 2) Protective Measures by Using Cultural Concern Beside imposing public morals exception, some WTO member states also employ cultural concern for justifying their measures95 although some of them fall within the range of ‘inefficient protectionism’.
96 Article XX (f) denotes how the exception also covered measures for safeguarding what has been categorized as nationwide assets of artistic, outstanding or archeologically value.97 Similar to public morals exception, the cultural concern must not be ‘arbitrary or unjustifiable discrimination’ between member states wherein the comparable circumstances triumph, or a ‘disguised restriction’ on international trade.98 The typical of cultural-related measures is the restrictions of market access, particularly to safeguard what member states have assumed as cultural goods and services.
Spain and Mexico and Spain undertook screen quotas for movies to restrict the existence of foreign movies in their areas.99 Through its state-owned corporations, China activated screen publications, such as newspapers and books, video and audio and 95 I Gusti Ngurah Parikesit Widiatedja, ‘Cultural Concern under Trade and Investment Agreements: Does it Really Work?’ (2018) 5(2) Brawijaya Law Journal 173.
96 Krista Boryskavich, above n 16.
97 GATT 1947, above n 25, art XX (f).
98 Ibid art XX.
99 Christoph Beat Graber, ‘Audio-visual Media and the Law of the WTO’ in Christoph Beat Graber, Michael Girsberger and Mira Nenova (eds.)
Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual (Schulthess, 2004) 15, 29.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 70 | Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... products as a tool of forestalling those products will not oppose with China’s cultural values.
100 Lately, China even undertook the control of internet through selecting and blocking procedure, and introducing what has been known as selfcensorship by internet users through supervision and punitive sanctions.101 Some member states also conducted precautionary measures to guard what they have regarded as cultural tradition.
Benin 102 and Haiti 103 controlled the importation of alcohol; Israel prohibited importation of all non-Kosher meat products; 104 Brunei restricted importation in certain meat foods; 105 and Qatar banned pork products’ importation.106 Under the WTO mechanism, a member states may impose a restriction or discriminatory measures concerning cultural products for encouraging local value or to protect its producers.107 The range of cultural value of a particular product may cover not only the nature of product, or who make it, but also how it is created or consumed or how it impacts local identity.
108Nevertheless, as 100 See Panel Report, ‘China Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products’ (WT/DS363/R, 12 August 2009) [4.113-4.120] 101 Quynh-Dan Nguyen, ‘Error: Essay not Found: Comparing Censorship in China and South Korea (2016) 3(1) Brawijaya Law Journal 17, 20.
102 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Benin, WT/TPR/S/131 (24 May 2004) [42].
103 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Haiti, WT/TPR/S/99 (7 October 2003) [41].
104 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Israel, WT/TPR/S/58 (13 August 1999) [24].
105 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Brunei, WT/TPR/S/84 (27 April 2001) [43].
106 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Qatar, WT/TPR/S/144 ( 24 January 2005) [26].
107 Tomer Broude, ‘Taking “Trade and Culture’’ Seriously: Geographical Indications and Cultural the following cases show, the Panel and the Appellate Body are success to limit the capacity of the WTO member states to execute measures for shielding local cultural products.109 In Japan – Leather II (US), a Japanese regulation required leather importers to obtain import licenses, and to obey with import quotas110 in order to secure the jobs ofthe Dowa People, an indigenous groups.111 Japan claimed that the people of Dowa were in a lower economic and cultural status because of class system’s discrimination.
112 Nevertheless, the panel annulled Japan’s measure as it had impaired or nullified benefits to other member states that was the US.
113 Also, in Japan – Alcoholic Beverages II, Japan asserted its lower taxes on ‘shochu’compare to cognac, whiskey, and white spirits, 114 denoting that the consumers of Japanese culturally considered shochu as dissimilar from those alcohol drinks, and consumed it in different methods.115 The Panel and Appellate Body then banned this measure as it fell within the Protection in WTO Law’ (2005) 26(4) University of Pennsylvania Journal of International Economic Law 623, 638.
108 Tania Voon, Cultural Products and the World Trade Organization (Cambridge University Press, 2007) 11 109 See Ivan Bernier, ‘Trade and Culture’ in Patrick FJ Macrory, Arthur E Appleton, and Michael G Plummer (eds.)
The World Trade Organization: Legal, Economic and Political Analysis (Springer, 2005), 790.
110 Panel Report, Japanese Measures on Imports of Leather, L/5623 31S/94 (15/16 May 1984) [8] (‘Japan-Leather II Panel Report’) 111 Ibid [17]–[18].
112 Ibid [21]–[22].
113 Ibid [44].
114 Appellate Body Report, ‘Japan – Taxes on Alcoholic Beverages’ (WT/DS8/AB/R,1 November 1996) 17.
115 Panel Report, ‘Japan – Taxes on Alcoholic Beverages’ (WT/DS8/R, WT/DS10/R, WT/DS11/R, 1 November 1996) [4.54].
https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS8/AB/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS8/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS10/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS11/R&Language=English&Context=ScriptedSearches&languageUIChanged=true Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... | 71 range of ‘internal taxation’, that was inconsistent with GATT Article III:2.116 In China – Audiovisual, through its state-owned companies, China screened publications of books, newspapers, video and audio, such as games, CDs, and DVDs.117China argued that its mechanism was salient as a precautionary measure for confirming that those products did not contain any pornography or violence resources that conflicted China’s cultural tradition.118Both the Panel and the Appellate Body disagreed this measure as it led discriminatory conducts in which China stipulated the trade of importing publications must be operated by entirely State-owned businesses, and invalidated foreign businesses from being allowed as publication importers.
As a result, this measure was beyond the range of general exception under GATT Article XX.119 In EC –Seal Products, the EU banned the importation and promotion of seal products to support the EU's moral anxieties concerning seals’ prosperity.
120 Canada contested this measure wherein sealing was a salient cultural tradition for its indigenous Inuit societies.
121 The outcome of this measure discriminatory profited seal products gained by Greenland's Inuit societies over Canadian Inuit societies (that still applied cultural tradition) from the method this measure was commenced.122 In the final report, the Appellate Body held that the EU Seal Administration was unlawful because it had been implemented in a 116 Appellate Body Report, above n 111, 32.
117 Panel Report, ‘China Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products’(WT/DS363/R, 12 August 2009) [4.114].
118 Ibid [4.113-4.120].
119 Ibid [4.113-4.120].
discriminatory measure following GATT Article XX.123 IV.
CONCLUSION The existence of inequality and poverty in some countries doubted the contribution of the WTO, criticizing its vision on trade liberalization.
The overwhelming spirit of national interest has put WTO negotiations in deadlock.
Besides, some WTO member states impose discriminatory and protective measure for the sake of national interest.
Given its role for enforcing the commitments agreed under trade negotiations, the DSM is crucial to save the future of WTO.
The DSM WTO has adjudicated 405 cases, making it as the most productive of all international DSM.
This paper argues that the supremacy of the DSM WTO has ensured the future of WTO by looking at two parameters.
Firstly, it analyses the character of the of DSM WTO where it falls within the scope of a legalcharacter with high level of legalism.
It reflects through the existence of AB that has a functional and administrative autonomy.
The AB also has an ‘inherent powers’, enabling it to freely manage the legal proceedings to the degree necessary to accomplish their adjudicative role.
Next, by looking at the decision of the Panel and the Appellate Body, the DSM WTO has effectively controlled the overwhelming spirit of national interest.
This decision has prevented member states to impose discriminatory measures by imposing public morals exception.
Equally important, the DSM WTO is also able to show its 120 Appellate Body Report, above n 90, 24.
121 Panel Report, ‘European Communities Measures Prohibiting the Importation and Marketing of Seal Products’(WTO Docs WT/DS400/R, WT/DS401R, 25 November 2013) [7.303-315].
122 Ibid [7.460].
123 Appellate Body Report, above n 90, 27.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 72 | Widiatedja The Supremacy of the Dispute Settlement Mechanism (DSM)... supremacy by limiting the capacity of the WTO member states to execute measures for protecting cultural concern.124 REFERENCES Books Alter, Karen J, The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014).
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Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 219 THE SEPARATION OF POWERS, ROLE OF THE PRESS AND THE EMERGENCE OF ONLINE MEDIA IN CHINA AND TAIWAN Kaaden Smith 1 1 Law School, university of Wollongong, Australia Email: ks983@uowmail.edu.au Submitted: 2017-08-16 | Accept: 2017-10-09 ABSTRACT Despite sharing a common culture over thousands of years, the modern stance of the Chinese and Taiwanese governments relating to the separation of powers and human rights has taken a drastically different path over the past seven decades.
This paper begins with a brief introduction to traditional Chinese jurisprudence and how it has been shaped in recent times by the emergence of Western legal principles.
It further examines the correlation between the separation of powers and the diversity of political discussion and level of regulation in the media of the People‟s Republic of China („PRC‟ or „China‟) and the Taiwanese Republic of China („ROC‟ or „Taiwan‟), and how the constitutional and legislative provisions of each address these concepts and how they reflect international treaties adopted by each government.
The emergence of online media to further demonstrate the different stances taken by the PRC and ROC on the adoption of these Western principles is analysed.
Finally, the paper will examine the international criticisms the PRC and ROC face for their practices regarding media censorship.
The paper suggests that maintaining a separation of powers is crucial in order to uphold a free, independent press.
Keywords: separation of powers, online media, China, Taiwan, censorship I.
INTRODUCTION To gain an understanding of the purpose and effect of media laws in the PRC and the ROC, it is essential to first provide a brief overview of the cultural context in which these laws, and the legal systems of these governments as a whole, has developed.
Traditional Chinese legal philosophy differs vastly from that of the West.
Unlike the Roman-derived legal systems of the West, the Chinese legal system had for centuries operated as a state-centered entity.
There existed little regard for the human rights, judicial independence and equality before the law that has become the staple of Western democracy.
1 The traditional Chinese legal system has been influenced by two major competing, and occasionally compromising, legal ideologies.
The first is Confucianism, which was developed in the Spring and 1 Kwan, Angela, „Is Confucius to blame?
Chinese culture and the conception of the rule of law in the two Chinas‟ (2004) 13 (3) Polemic 15-22, 16.
DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.05 mailto:ks983@uowmail.edu.au Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 220 Autumn period of ancient China (771-476 BCE).
It draws on the teachings of the ancient Chinese philosopher Confucius.
This school of thought operated on the basis that human nature was objectively good, and that legal disputes were to be solved through compromise to preserve harmony in society.
2 There was little need for public legal institutions and little emphasis was placed on the procedural formality and codification of law that is commonly considered an element of the rule of law in the West.
3 The second school of thought, Chinese Legalism, developed later in Chinese history during the Warring States period (475-221 BCE).
4 This ideology saw law as a means of ensuring citizens complied with the will of the state.
This was to be done through rewarding loyalty, and enforcing strict punishments for acts against the state.
5 This placed the governing elite of the state above the law, violating the rule of law principle that all are equal before the law.
While Chinese law is similar to Western law in the sense that it does not explicitly derive from religion, there are dissimilarities between the two.
6 This means there are inherent difficulties in the 2 Ibid.
3 Zhao Jun, „Mutual Encouragement and Interaction of International Rule of Law and China‟s Rule of Law‟ (Speech delivered at Guanghua Law School, Hangzhou, 12 January 2017).
4 Kwan, Angela, above n 1, 16.
5 Ibid.
6 H. Patrick Glenn, Legal Traditions of the World (Oxford University Press, 2 nd ed, 2004) 302-5. importation of Western legal doctrines, such as the separation of powers and Western perceptions of human rights, into a Chinese cultural context.
Chinese law is built upon thousands of years of tradition, and operates in such a manner as to persuade those subjected to it to comply through balance and compromise.
This differs from the obligatory attitude of the positive, codified legal traditions in the West.
7 Chinese law is based around what is culturally deemed as „right‟ from a traditional intrinsic standpoint, and not from a written law issued by a designated positive law-making body.
This has sparked much academic discussion around what is referred to as the Asian values debate, a notion that the traditional culture of Asian societies justifies to a certain extent the imposition of autocratic governments.
8 In the Western sense, Chinese traditional legal theory considerably lacked what Walker claims is constitutionalism.
9 Under Walker‟s theory, constitutionalism refers to the measures taken in a society‟s law to prevent any individual or entity from wielding absolute power.
Constitutionalism thus entails „not individual rights but 7 Ibid, 302.
8 Michael C. Davis, „Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values‟ (1998) 11 Harvard Human Rights Journal 109-147, 113.
9 Son, Bui Ngoc, „Confucian constitutionalism: classical foundations‟ (2012) 37 Australian Journal of Legal Philosophy 61-98, 64, citing Graham Walker, 'The Idea of Nonliberal Constitutionalism' in Ian Shapiro and Will Kymlicka (ed) Nomos XXXIX: Ethnicity and Group Rights (1997) 161-62.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 221 fettered power‟.
The law was a tool to carry out the will of the state rather than preventing the arbitrary wielding of power.
10 Furthermore, the lack of codification suggests that the Chinese legal tradition lacks common rule of law aspects, including transparency, predictability and equal access to due process before the law.
On the other side of the argument, however, it is argued that, although not codified, the governing authority of a Confucian society is still prohibited from the arbitrary wielding of power.
11 Wejen Chang argues that, although the obligations of the state are not codified in the Western sense, Confucian philosophy still holds that order and morality are to be preserved in a society.
Under this doctrine, it is the responsibility of the governing body to maintain a social environment in which basic human rights are preserved.
The role of the law and the state therefore is to ensure that society at large remains harmonious to ensure prosperity for its citizens.
12 This view, however, is arguably unrealised absolutely in a traditional Chinese society which is in part influenced by legalist ideals.
While both Confucianism and legalism promote social harmony, a legalist approach does not consider the moral standard inherent in Confucian philosophy.
Thus, while the largely Confucian Chinese legal philosophy 10 Ibid.
11 H. Patrick Glenn, above n 6, 115, 12 Ibid.
complies with constitutionalism, there exists the potential for a legalist head of state to abuse this authority.
It is evident from this that the differences in Chinese and Western traditional cultures has seen each society employ the law in vastly varying manners to pursue their respective aims.
While Western notions of the rule of law, liberalism and individualism have shaped the development of much of Europe‟s laws from the Enlightenment onwards, traditional Chinese culture has placed the preservation of familial and communal harmony as the paramount priority in society and the preservation of social unity as the law‟s main objective.
13 This contrast is evident in the Chinese attitudes towards the separation of powers doctrine and stance on human rights, particularly the right to freedom of speech and publication.
A comparative examination of both China and Taiwan provide an insight into the influence that the acceptance – or rejection – of these Western values has had in the formation of these modern Asian legal systems.
II.
LEGAL MATERIALS AND METHODS Legal materials used in this research consist of primary legal material and secondary legal materials.
Primary legal materials include relevant cases as well as 13 Kwan, Angela, above n 1, 16.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 222 international and national regulations on subject matter.
Since this research compares China‟s and Taiwanesse Laws, thus both national laws relating to state‟s power in controlling media as well as censorship, are used as legal basis.
International convention, that is International Covenant on Civil and Political Rights is also used as primary legal materials in this research.
Secondary materials includes journal articles with relevant topic of discussions and other relevant sources.
The research begins with the discussions of each state‟s constitutions relating to state‟s control in media, tyhen comparasion is drawan.
The analyses of international convention is also conducted to analyse consistency between international and national regulations.
At the end, the international criticisms the PRC and ROC face for their practices regarding media censorship are examined.
III.
RESULTS AND DISCUSSIONS 1.
Separation of Powers in The PRC and ROC The history of China‟s legal structure shows a lack of any notion of separation of powers or checks and balances.
14 Although there existed magistrates to apply the laws in traditional China, the office these magistrates held was of a combined administrative and judicial nature.
Furthermore, while the magistrates were to 14 H. Patrick Glenn, above n 6, 307-8. apply the law, they were granted no interpretive freedom.
Any issues involving the interpretation of the codes in question was to be dealt with by the government, with magistrates exposing themselves to administrative or criminal sanction if they erred from this.
15 Thus, it is evident that China lacked any form of judicial independence, with the judiciary in China being held accountable to the government, whose interests its rulings were expected to uphold.
16 This is a trend that has continued up to the present in modern mainland China.
The Communist Party of China („CCP‟) has flatly outlined its views that the separation of powers is incompatible with Chinese culture and society.
In 1987, Deng Xiaoping, then Chairman of the Military Commission and the chief policy-maker in China, stated that China would reject the Western notion of the separation of powers.
This was reiterated again in 2011 by Wu Bangguo, Chairman of the National People‟s Congress (NPC) and a member of the Political Bureau (politburo) Standing Committee.
17 This seems to suggest that there exists a dichotomy between Western legal traditions and Eastern culture, although it raises the question of how the Taiwanese government has, after a period of arbitrary 15 Ibid.
16 Ibid.
17 Qian Gang, The Power of Separation (2017) China Media Project: A project of Journalism and Media Studies at the University of Hong Kong < http://cmp.hku.hk/2012/09/24/27418/> http://cmp.hku.hk/2012/09/24/27418/ Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 223 rule by the Kuomintang (KMT), managed to adopt the Western separation of powers and emerge as a democratic government system.
Taiwan, however, has increasingly adopted Western principles into its legal system and has emerged from a period of authoritarian martial law autocracy to a more democratic, transparent and politically diverse society despite its common traditional background with mainland China.
18 Although the ROC maintained the same Constitution after its flight to Taiwan in 1949 as it did at the formation of the Republic in 1911, judicial independence was subverted for several decades.
When martial law was imposed in May 1949, the authority of both the judiciary and the executive arms were assumed by the military and the KMT operated a regime which involved the significant curtailment of civil and political rights.
19 Despite this, however, there was a steady shift in authority from military tribunals to ordinary courts until martial law was eventually lifted in 1987, allowing the separate arms of the Taiwanese government to operate outside the ambit of the KMT‟s emergency powers and more in line with the separation of powers provided for in the Constitution.
20 In 1990, the Constitutional Court of Taiwan held, in J.Y.
Interpretation 261, that 18 Michael C. Davis, above n 8, 113.
19 Tay-sheng Wang, „The Legal Development of Taiwan in the 20 th Century: Toward a Liberal and Democratic Country‟ (2002) 11 Pacific Rim Law & Policy Journal 1-23, 6.
20 Ibid, 20. the KMT‟s indefinite extension of national representatives was unconstitutional.
It provided that „periodical reelection of representatives is crucial for reflection of the will of the people and for implementation of constitutional democracy‟.
21 Although the powers exercised under martial law were authorized to be exercised indefinitely, they did not permit the extension of the national representatives‟ terms of service, which is limited to six years pursuant to Article 28, paragraph 1 of the ROC‟s Constitution.
22 This landmark decision paved the way for a more diverse political landscape, culminating in the formation of the Democratic Progressive Party („DPP‟) in 1992 and its democratic election to power in 2000.
23 The Taiwanese government is divided into five separate arms of government.
In addition to the traditional Western separation of powers into the three arms of executive, legislature and judiciary, the Taiwanese government also comprises an Examination Yuan and Control Yuan.
Despite this, it still holds the principles of inter-governmental accountability and judicial independence at its heart.
24 21 釋字第 261 號 [Judicial Yuan Interpretation No.
261] [1990].
22 Ibid.
23 Freedom House, „Freedom in the World 2017: Taiwan Profile‟ < https://freedomhouse.org/report/freedomworld/2017/taiwan > 24 Ibid.
https://freedomhouse.org/report/freedom-world/2017/taiwan https://freedomhouse.org/report/freedom-world/2017/taiwan Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 224 Media in The PRC and ROC By 1949 there existed two governments proclaiming to be the true China.
Both the Republic of China, established in 1911 and forced to resettle on the island of Taiwan in 1949, and the People‟s Republic of China, which established a Chinese communist rule from Beijing in 1949, had starkly contrasting views on what ideals were to be adopted from the West.
This is evident in each China‟s attitudes towards the doctrine of the separation of powers, which has had considerable influence on each government‟s stance on media regulation.
The media in the People‟s Republic of China has been closely monitored from the time the government was founded.
Particularly during the Cultural Revolution of 1966-76, Maoist ideals dominated the state‟s perception of the role of the media.
The view of the government was that the media was an instrument to promote the interests of the state rather than inform the population.
25 For a short-lived period in the late 1970s, there existed a period of greater media liberty.
Private media was granted greater scope to publish political materials.
This changed again in 1980 when Deng Xiaoping announced that the four great freedoms in the media would be abolished.
These were the freedom to speak freely, to 25 John A.
Lent, „Freedom of Press in East Asia‟ (1981) 3 Human Rights Quarterly 137-49, 137. air views publicly, to hold debates and freedom to write wall posters.
26 Although modern Taiwan has emerged into an open and transparent democracy, for decades after the Republic of China‟s KMT government fled to Taiwan there was considerable constraint on the civil liberties and human rights of its citizens.
The ROC on Taiwan („ROCOT‟) operated as a oneparty system like the PRC until, in 1992, the Democratic Progressive Party („DPP‟) emerged.
This gave a platform to the more reformist campaigners in Taiwan‟s society, and the DPP took power in the 2000 election.
27 Having established this cultural context in which the media, government and individuals interact, it is easier to understand the role of the constitutional and legislative institutions in place for the regulation of both conventional and online media and the influences international law has had on this.
2.
Legal Provisions and Institutions Concerning Press Freedom Constitutional Provisions on the Right to Free Speech in China and Taiwan Now that the cultural and legal backdrop of both traditional China and the Western-influenced modernization of the two Chinas has been established, it is clearer how human rights are reflected in the laws of the PRC and ROC and how the right to 26 Ibid, 141.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 225 freedom of speech operates with respect to media independence.
Although both China‟s and Taiwan‟s constitutions contain provisions safeguarding the right to free speech for their respective citizens, this paper will explore the is a dramatic difference in the operation of both in practice, which has drastic implications for the level of individual expression and discourse permitted in each state.
Both China and Taiwan have formally adopted the terms of the International Covenant on Civil and Political Rights (ICCPR).
Article 19.2 preserves an individual‟s „right to freedom of expression‟ whether it be through speech, writing, „or any other media of his choice‟.
28 This in substance mirrors Article 19 of the Universal Declaration of Human Rights („UDHR‟), which, in its preamble, also evinces the object of upholding „freedom of speech and belief‟.
29 While the PRC signed the ICCPR on 5 October 1998, they are yet to ratify it.
Thus, it has not passed into binding domestic law in China.
30 The ROC has been unable to ratify the document.
Although it signed it in 1967, it was excluded from the United Nations („UN‟) in 1971 and lacks formal recognition from the UN as a state.
This 28 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19.2.
29 Universal Declaration of Human Rights 1948 30 Human Rights Watch, „China: Ratify key international human rights treaty‟ 8 October 2013. means that it is unable to formally ratify UN treaties.
31 The Taiwanese government has nonetheless implemented the ICCPR through the Implementation Act in 2009, giving the covenant legal force on a domestic level.
32 Thus, while the PRC has officially signed the ICCPR, it has yet to ratify and be bound by them while Taiwan, who is incapable of ratification, has nevertheless assumed the terms of the ICCPR through domestic enacting legislation.
Under Article 35, the Constitution of the People‟s Republic of China assures that all citizens „enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration‟.
33 Furthermore, Article 47 provides for the „freedom to engage in scientific research, literary and artistic creation and other cultural pursuits… in education, science, technology, literature, art and other cultural work‟.
34 Below, however, the Constitution contains provisions that may be used to justify the circumvention of this right.
Article 51 provides that the rights of citizens may only be exercised where they do not „infringe upon the interests of the State, of 31 Taiwan Association for Human Rights, „The hidden face of Taiwan: Lessons learnt from the ICCPR/ICESCR review process‟ April 2013, 9.
32 Ibid.
33 «中华人民共和国宪法» [Constitution of the People‟s Republic of China] art 35.
34 «中华人民共和国宪法» [Constitution of the People‟s Republic of China] art 47.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 226 society or of the collective, or upon the lawful freedoms and rights of other citizens‟.
35 This provision is imprecise, and provides no indication as to what, in practice, constitutes an infringement capable of justifying the nullification of a citizen‟s constitutional right to free speech, and gives the Chinese government considerable discretion in deciding what should be regulated in the press.
Like China, the Taiwanese Constitution contains a provision safeguarding a citizen‟s right to free speech.
This is found in Article 11, which upholds the „freedom of speech, teaching, writing, and publication‟ in Taiwan.
36 Also like China, the Taiwanese Constitution provides for the potential abridgement of these rights by law in instances to „prevent infringement upon the freedoms of others, to avert an imminent danger, to maintain social order, or to promote public welfare‟.
37 However, given Taiwan‟s more transparent process of Constitutional Interpretation, there is much less discretion for the Taiwanese government to contravene the right to free speech as it must first be held accountable to 35 «中华人民共和国宪法» [Constitution of the People‟s Republic of China] art 51.
36 «中華民國憲法» [Constitution of the Republic of China] art 11.
37 «中華民國憲法» [Constitution of the Republic of China] art 23. the Grand Justices of the Constitutional Court, the highest judicial body in Taiwan.
38 The Grand Justices of Taiwan have shown caution in the past when it has come to circumventing the right to free speech in favour of other rights.
Constitutional Interpretation 509 is one of the leading cases on the balance between free speech and the rights of others.
39 This interpretation dealt with a case involving Articles 310 and 311 of the Taiwanese Criminal Code when, in 1996, a magazine alleged the head of the Ministry of Transportation at the time, Zhao-yang Tsai, embezzled funds to pay for private building renovations.
Action was raised on the grounds of libel against the magazine, who counter-argued that the Articles were unconstitutional as they violated the magazine‟s right to freedom of publication under Article 11.
40 Ultimately it was decided that the Article did not contravene the right to freedom of speech.
The court found that monetary compensation for libel in a civil case would be unsatisfactory as „it would be tantamount to issuing them a licence to defame‟.
41 Therefore, a criminal sanction is a constitutional means of preserving someone‟s right to reputation and freedom 38 Jeffrey C.F.
Li, „The Constitutional Litigation in Taiwan‟ (Speech delivered at Soochow University, 18 January 2017).
39 Ibid.
40 Ibid.
41 釋字第 509 號 [Judicial Yuan Interpretation No.
509] [2000].
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 227 from defamation, even if it is at the expense of another‟s right to free speech.
It was further held that Article 311, which provides defences for the offence of making defamatory statements with bona fide intent on the grounds of „public interest‟, was valid and constitutional.
42 Another landmark interpretation involving the right to freedom of speech emerged from Interpretation No.
689.
This case involved the stalking by a journalist of a person in a public space.
The Grand Justices found that the provision in question, Article 89, Paragraph 2 of the Social Order Maintenance Act, was constitutional, provided that the press was engaged in newsgathering of events that are in the public interest.
43 These interpretations reflects what is referred to by Professor Li-Hui Lu as the „two-sided theory‟.
44 That is, a balancing act between freedom of speech, which is not of itself an absolute right, and the right to be free from groundless defamation.
Professor Lu argues that an appropriate balance between the right of free speech and the right of reputation is that free speech should prevail over defamation where the remark in issue is true.
45 This notion shows an 42 Jeffrey C.F.
Li, „The Constitutional Litigation in Taiwan‟ (Speech delivered at Soochow University Law School, Taipei, 18 January 2017).
43 Ibid.
44 Li-Hui Lu, „An Analysis of the “Two-Sided Theory” – A New Perspective of Taiwanese Civil Defamation Law‟ (2011) 29 Chun Yuan Financial & Economic Law Review 244-302, 255.
45 Ibid, 266-7. inclination towards the implementation of Western ideals of free speech theory.
It considers that free speech is essential to promote an environment in which individuals can exchange ideas and contribute to the democratic process.
Legislative and Administrative Strategies for the Regulation of Media China‟s court system does not engage in the broad, dominant interpretive and applicatory roles that are entrusted upon Western courts.
46 The Chinese government instead designates authority to statutorily empowered government institutions.
Decisions are therefore lacking in the impartiality and procedural transparency that is so crucial to the separation of powers, and broad, discretionary legislation is provided no platform for challenge in the sense that the Constitutional Court provides for Taiwan.
47 Due to the broad array of media platforms, the Chinese government has several different bodies for regulating media.
48 The General Administration of Press and Publication monitor print publication media.
The State Administration 46 Donald C. Clarke, „Empirical Research into the Chinese Judicial System‟ in Erik G. Jensen and Thomas C. Heller (eds), Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford University Press, 2003) 164-192, 168.
47 Ibid.
48 Michael Ting, „The Role of the WTO in Limiting China‟s Censorship Policies‟ (2011) 41 Hong Kong Law Journal 285-301, 288.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 228 of Radio, Film and Television monitor broadcast and electronic media, including the internet.
Both are held accountable to the CCP‟s Central Propaganda Department.
49 Thus, the regulation of speech in China is upheld by institutions directly accountable to the CCP.
This allows the CCP to have direct influence over the content across all platforms of domestic Chinese media, limiting the issues published in to only those that serve the public interest and considerably restraining the media‟s potential as a platform of social and political discussion as well as censoring access to challenging foreign sources.
As discussed above, the constitutional rights of Chinese citizens may be subverted if the information is classified as a „state secret‟.
50 What qualifies as a state secret is set out in an open-ended, non-exhaustive nature in Article 8 of the 1988 Law on the Protection of State Secrets.
51 The provision lists several things, though concludes with anything „all other matters classified as state secrets by the national State Secrets Bureau‟ (SSB).
52 This imparts unfettered discretion on the States Secret Bureau, a government 49 Ibid.
50 «中华人民共和国宪法» [Constitution of the People‟s Republic of China] art 53.
51 Human Rights in China, „State Secrets: China‟s Legal Labyrinth‟ (Report, Human Rights in China, 2007), 81-9, 82, citing Law on the Protection of State Secrets (People‟s Republic of China), National People‟s Congress Standing Committee, 5 September 1988.
52 Ibid, 81. body, to decide whether the right to free speech may be circumvented.
Furthermore, depending on the nature of the state secret, the classification of the information is decided by the SSB.
For information involving issues of defence, the SSB consults with the Central Military Commission, and for other issues it consults with the ministries of Foreign Affairs, Public Security, State Security and any other „relevant central organs‟.
53 Despite the appearance of diversity in the process of state secret classification, all organs are ultimately accountable to the Communist Party of China, presenting the potential to eliminate the consideration of any alternative and potentially conflicting views.
Article 20 of the Law on the Protection of State Secrets provides that „relevant security regulations shall be complied with and no state secrets shall be disclosed‟ in any publication or broadcast.
54 Again, these security regulations are to be devised at the discretion of the SSB as per Article 17.
55 This therefore provides that the Chinese government has the authority to declare any form of publication illegal due to the broad, indefinite language of the legislation governing what is acceptable for publication or not.
In addition, the lack of judicial independence evinced by Article 128 of the Constitution of the People‟s 53 Ibid, 85.
54 Ibid, 89.
55 Ibid.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 229 Republic of China, which holds the courts responsible to the NPC and requisite state bodies, makes it highly unlikely that any court would rule against the government.
56 China‟s rejection of the separation of powers therefore arguably eliminates the opportunity for an independent review of the government‟s decisions relating to media censorship.
Taiwan, however, has arguably taken a much less restrictive legislative approach to its regulation of speech.
Freedom Press‟s 2017 „Freedom in the World‟ report awarded Taiwan its highest possible score in political rights and civil liberties, which examines factors such as the independence of the press and the diversity of discourse in the media.
57 While the aim of China‟s censorship policies is to ensure that no publication contrary to the interests of the state may challenge the CCP, the major examples of Taiwan‟s legislation curbing freedom of speech has been enacted with the purpose of preventing unfettered free speech from infringing the rights of other citizens.
When compared with China, Taiwanese media regulation covers a much narrower scope of information and is much more transparent in nature.
The direct language of legislative provisions and 56 «中华人民共和国宪法» [Constitution of the People‟s Republic of China] art 128.
57 Freedom House, „Freedom in the World 2017: Taiwan Profile‟ (2017) < https://freedomhouse.org/report/freedomworld/2017/taiwan > implementation of proper process constrains much of the governmental discretion that is available in China.
The Taiwanese media can publish materials of a broader public interest, and are not confined to issues and attitudes aligned with state interests.
58 Article 310 of the Criminal Code, the law challenged in the abovementioned Constitutional Interpretation No.
509, provides an example of where the state has deemed it appropriate to constrain freedom of speech where it infringes the right to reputation.
59 It is thus discernible that, given the trend in Constitutional Interpretations and the language of the legislation on libel and constraints on free speech, that Taiwanese law places considerable emphasis on the „public interest‟.
60 This aligns with the selfgovernment theory of free speech.
It promotes true and relevant free speech on the basis that it facilitates democratic discussion and social contribution.
61 However, it also acknowledges that free speech is not absolute, and holds the potential to harm other individuals the subject of the speech.
Thus, an interesting balance is struck between the potentially conflicting traditional Chinese legal philosophy or preserving social and communal harmony on the one hand and the 58 Ibid.
59 Jeffrey C.F.
Li, „The Constitutional Litigation in Taiwan‟ (Speech delivered at Soochow University Law School, Taipei, 18 January 2017).
60 Ibid.
61 Li-Hui Lu, above n 44, 256. https://freedomhouse.org/report/freedom-world/2017/taiwan https://freedomhouse.org/report/freedom-world/2017/taiwan Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 230 encouragement of democratic political involvement on the other.
The contrast between the stances adopted by the PRC and ROC on these issues has become further broadened with the emergence of online communication and the seemingly limitless platform this presents for the distribution of information.
3.
Response to the Surge of Online and Social Media Communication Due to the inexpensive cost and broadness of internet access and the relatively level platform for both author and audience, Ritika Patni and Nihal Joseph argue that the internet has taken on a „democratic character‟.
62 This has led to the emergence of a new frontier of oneand two-way communication platforms and the possibility for instant and anonymous dissemination of information.
This media revolution has prompted the governments in both China and Taiwan to respond by way of implementing new laws and institutions to ensure the media continues to function in line with each government‟s respective ideals.
In early 2017, China took a further step in restricting online access to forbidden materials by restricting the use of virtual 62 Ritika Patni and Nihal Joseph, „WTO Ramifications of Internet Censorship: The GoogleChina Controversy‟ (2010) 3 NUJS Law Review 337-363, 338. private networks (VPNs).
63 Under this strengthened stance of the Ministry of Industry and Information Technology, VPN providers may not lawfully offer their services without obtaining prior government approval.
This is a renewed attempt by the Chinese government to prevent people in mainland China from accessing online sites and information that has been blocked by the Chinese government.
64 There exists no official elaboration by the CCP as to the topics considered appropriate for censorship on the internet.
Furthermore, the Chinese government has not released statistics or court data on the way these laws are applied.
Common topics the focus of censorship in the part, however, have included religious and political materials and materials which promote critical thought, as well as pornography and defamatory content.
65 In November 2016, the Standing Committee of the NPC introduced a new Cyber Security Law.
66 This law requires internet service providers („ISPs‟) to store the data of clients, and obliges them to assist authorities in any criminal or administrative investigation.
It also prohibits the distribution online of any information which 63 Josh Ye, „China tightens Great Firewall by declaring unauthorised VPN services illegal‟, South China Morning Post (online), 23 January 2017, [2].
64 Ibid.
65 Ritika Patni and Nihal Joseph, above n 61, 345.
66 International Foundation of Journalists, „Strangling the Media: China Tightens Its Grip‟ (China Press Freedom Report 2016, International Foundation of Journalists, 20 January 2017) 44.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 231 may threaten or challenge socialism and the state.
67 The International Federation of Journalists (IFJ) suggests that, by increasing the burden on ISPs to censor and remove inappropriate content, the government reduces its own responsibility for censorship.
Taiwan has no central framework of online media regulation.
68 However, two laws act as control mechanisms for internet access.
First, the Protection of Children and Youths Welfare and Rights Act provides for the creation of regulations to prevent children accessing immoral content online.
69 Under Article 46(1) this is to be achieved through tracking and filtering the content accessible to children, and Article 46(2)-(3), internet platform providers are required to restrict the type of content that young users can access.
If this is not complied with, the government has the authority to remove the immoral content.
70 The Act defines children as those under age 12 and youths as those between ages 12 and 18.
71 The second mechanism exists in the Copyright Act 72 .
By virtue of Chapter VI-1, ISPs are permitted to suspend their service 67 Ibid.
68 Li, Jeffrey (Chen-Fei), „Internet control or internet censorship?
Comparing the control models of China, Singapore and the United States to guide Taiwan‟s choice‟ (2013) 14 Pittsburgh Journal of Technology Law and Policy 1-43, 4.
69 Ibid.
70 Ibid.
71 Protection of Children and Youths Welfare and Rights Act (Republic of China) Legislative Yuan, 8 August 2010, art 2.
72 Li, Jeffrey (Chen-Fei), above n 67, 4. to those accused of accessing material in breach of copyright three or more times.
73 Although Taiwan has adopted a much more liberal approach to online media, concerns as to internet neutrality have still emerged even after the establishment of democracy in the ROC.
In 2013, a Bill was proposed to amend the Copyright Act.
This would have allowed the Taiwanese Intellectual Property Office to require ISPs to blacklist any peer-to-peer file sharing sites that violated copyright laws.
74 This sparked protest amongst those who believed the vague and imprecise nature of the amendments posed a threat to the freedom of online information and internet neutrality and the proposal was abandoned.
75 Despite these concerns, Taiwan has moved to solidify free, impartial press online.
The importance of a free, neutral online media has been a hotly defended concept in Taiwan and has been used as a point of argument against attempts to increase the scope of copyright laws.
However, it is arguable that, despite this, the Protection of Children and Youths Welfare and Rights Act evidences the retention of aspects of values and morality as a guiding principle in the Chinese legal tradition and 73 Ibid.
74 Tobias, Sharone, „Internet and press freedom in Taiwan‟, The Diplomat (online), 28 June 2013.
75 Sutton, Maria, Taiwanese users thwart government plans to introduce internet blacklist law (3 June 2013) Electronic Frontier Foundation < https://www.eff.org/deeplinks/2013/06/taiwaneseusers-thwart-government-plans-introduceinternet-blacklist-law > https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 232 despite the liberal online media atmosphere in Taiwan, provides that freedom of the press, despite its importance as a fundamental right, is not absolute.
4. International Criticisms While Taiwan‟s stance on freedom of speech has in recent decades grown much more aligned with internationally recognised human rights practices, China has drawn criticism from the global community for what seems to be an increasingly tight media regulation policy.
In order to gain entrance into the World Trade Organisation (WTO), the Chinese government has had to adapt its censorship policies to suit the criteria of the WTO.
Michael Ting has argued, however, had a limited influence on Chinese policy.
While the WTO has jurisdiction to influence member nations‟ policies with relevance to the market and international trade, it has no influence when the issue is one of human rights.
76 Furthermore, while the WTO has a Panel for the resolution of disputes, these disputes can only be brought forth by members of the WTO.
Therefore, actions cannot be brought forth by internet companies, such as Google, whose access to the Chinese market has been constrained and even restricted by Chinese censorship 76 Michael Ting, „The Role of the WTO in Limiting China‟s Censorship Policies‟ (2011) 41 Hong Kong Law Journal 285-301, 285. policies.
77 Thus, for the WTO to intervene on China‟s media censorship, it is dependent on a separate member nation bringing forth an action.
Even then, it will only act to promote international trade rather than in the interest of human rights.
78 Patni and Joseph suggest, however, that Chinese internet regulation policies have the potential to be in breach of the WTO‟s General Agreement on Trade in Services (GATS).
79 However, the GATS only covers sectors which are agreed upon by the member nation.
Thus, it is perfectly within China‟s power to enter the agreement, yet exclude its online service sector from the terms.
80 Thus, while China‟s policies may draw criticisms from the global community, the options to challenge China‟s policies in the sphere of international trade law are quite limited.
IV.
CONCLUSIONS AND SUGGESTIONS Drawing on the above information, it can be said that there is a link between the scope of human rights and media independence and the existence of the separation of powers in a society.
While both the PRC and ROC are derived from a common history dating thousands of years, and while both contain provisions in their Constitutions regarding basic human rights 77 Ibid.
78 Ibid, 300.
79 Ritika Patni and Nihal Joseph, above n 61, 350.
80 Ibid.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 233 and the freedom of speech and expression, in practice this is realised considerably different.
The government of mainland China is of a much more autocratic nature than that of Taiwan.
While the PRC has maintained its one-party system and judicial accountability to the CCP, Taiwan has shifted away from this to a more democratic, transparent system of governance with a strong, independent judiciary.
This prevents the Constitutionality of laws and government actions relating to media regulation from being impartially and independently tested in the PRC.
Instead, the judiciary is pressured by the one-party government to apply laws in line with government policy, thus constraining the potential for political discussion and debate on human rights in the court and leaving a judge as merely another issuer of CCP policy.
After a period of democratic emergence in the latter half of the 20 th century, Taiwan has become a more transparent and democratic society.
The foundation of the DPP marked the decline of the absolute rule of the KMT in Taiwan, and saw the acceptance in the Taiwanese government of a broader representation of political expression.
This has been reflected in Taiwan‟s media, which is left largely unfettered by the state, and is for the most part only circumvented to preserve the rights of other individuals or the welfare of minors.
The emergence of online communication technology has provided a forum for further distinction between the stances of the PRC and ROC.
While the PRC has sought to bring the internet within the control of the CCP and maintain its tight-fisted censorship policy, the ROC has embraced this new platform for free expression and speech.
Despite their differences however, both still retain elements of their Chinese jurisprudential roots with conceptions of collective societal morality at the heart of both governments‟ respective regulatory stances.
From here there is a discernible connection between the liberty and independence of a society‟s media and the presence of a separation of powers in its laws and institutions.
In order to prevent a society‟s information from operating as a mere mouthpiece of the state, it is imperative to ensure that no power may be arbitrarily vested in and exercised by any one governing body.
This facilitates an open, transparent media and online culture in which ideas and information may be exchanged freely that is a staple of any modern, vibrant democracy.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 234 REFERENCES Journal Articles Davis, Michael C., „Constitutionalism and Political Culture: The Debate over Human Rights and Asian Values‟ (1998) 11 Harvard Human Rights Journal 109-147 Kwan, Angela, „Is Confucius to blame?
Chinese culture and the conception of the rule of law in the two Chinas‟ (2004) 13 (3) Polemic 15-22 Lent, John A, „Freedom of Press in East Asia‟ (1981) 3 Human Rights Quarterly 137-49 Li, Jeffrey (Chen-Fei), „Internet control or internet censorship?
Comparing the control models of China, Singapore and the United States to guide Taiwan‟s choice‟ (2013) 14 Pittsburgh Journal of Technology Law and Policy 1-43 Lu, Li-Hui, „An Analysis of the “Two-Sided Theory” – A New Perspective of Taiwanese Civil Defamation Law‟ (2011) 29 Chun Yuan Financial & Economic Law Review 244-302 Patni, Ritjka and Nihal Joseph „WTO Ramifications of Internet Censorship: The Google-China Controversy‟ (2010) 3 NUJS Law Review 337-363 Son, Bui Ngoc, „Confucian constitutionalism: classical foundations‟ (2012) 37 Australian Journal of Legal Philosophy 61-98 Ting, Michael, „The Role of the WTO in Limiting China‟s Censorship Policies‟ (2011) 41 Hong Kong Law Journal 285-301 Walker, Graham, „The Idea of Nonliberal Constitutionalism‟ (1997) 39 Nomos 154-184 Wang, Tay-sheng, „The Legal Development of Taiwan in the 20 th Century: Toward a Liberal and Democratic Country‟ (2002) 11 Pacific Rim Law & Policy Journal 1-23, 6.
Books Taiwan Association for Human Rights, „The hidden face of Taiwan: Lessons learnt from the ICCPR/ICESCR review process‟ April 2013, 9 Tobias, Sharone, „Internet and press freedom in Taiwan‟, The Diplomat (online), 28 June 2013 Ye, Josh, „China tightens Great Firewall by declaring unauthorised VPN services illegal‟, South China Morning Post (online), 23 January 2017 Glenn, H. Patrick, Legal Traditions of the World (Oxford University Press, 2 nd ed, 2004) Human Rights in China, „State Secrets: China‟s Legal Labyrinth‟ (Report, Human Rights in China, 2007), 81-9 Jensen, Erik G. and Thomas C. Heller (eds), Beyond Common Knowledge: Empirical Approaches to the Rule of Law (Stanford University Press, 2003) 164-192 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 235 Legislation «中华人民共和国宪法» [Constitution of the People‟s Republic of China] «中華民國憲法» [Constitution of the Republic of China] Copyright Act (Republic of China), Judicial Yuan, 10 February 2010 Law on the Protection of State Secrets (People‟s Republic of China), National People‟s Congress Standing Committee, 5 September 1988 Protection of Children and Youths Welfare and Rights Act (Republic of China) Legislative Yuan, 8 August 2010 Cases 釋字第 261 號 [Judicial Yuan Interpretation No.
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689] [2007] Conventions International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Others Freedom House, „Freedom in the World 2017: Taiwan Profile‟ <https://freedomhouse.org/report/freed om-world/2017/taiwan > Gang, Chiang, The Power of Separation (2017) China Media Project: A project of Journalism and Media Studies at the University of Hong Kong <http://cmp.hku.hk/2012/09/24/27418/ > Jun, Zhao, „Mutual Encouragement and Interaction of International Rule of Law and China‟s Rule of Law‟ (Speech delivered at Guanghua Law School, Hangzhou, 12 January 2017) Li, Jeffrey C.F, „The Constitutional Litigation in Taiwan‟ (Speech delivered at Soochow University Law School, Taipei, 18 January 2017) Qian Gang, The Power of Separation (2017) China Media Project: A project of Journalism and Media Studies at the University of Hong Kong <http://cmp.hku.hk/2012/09/24/27418/ > Sutton, Maria, Taiwanese users thwart government plans to introduce internet blacklist law (3 June 2013) Electronic Frontier Foundation <https://www.eff.org/deeplinks/2013/0 6/taiwanese-users-thwart-governmentplans-introduce-internet-blacklist-law> Xu, Beina, Media Censorship in China (7 April 2015) Council on Foreign Relations <http://www.cfr.org/china/mediacensorship-china/p11515> https://freedomhouse.org/report/freedom-world/2017/taiwan https://freedomhouse.org/report/freedom-world/2017/taiwan http://cmp.hku.hk/2012/09/24/27418/ http://cmp.hku.hk/2012/09/24/27418/ http://cmp.hku.hk/2012/09/24/27418/ http://cmp.hku.hk/2012/09/24/27418/ https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law https://www.eff.org/deeplinks/2013/06/taiwanese-users-thwart-government-plans-introduce-internet-blacklist-law http://www.cfr.org/china/media-censorship-china/p11515 http://www.cfr.org/china/media-censorship-china/p11515 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 236
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.01| 1 A Reviewof Plea Bargain Concept in the AntiCorruption War in Nigeria Akintunde Adebayo1 1Faculty of Law, Adekunle Ajasin University, Akungba-Akoko, Nigeria E-mail : akintunde.adebayo@aaua.edu.ng Submitted : 2017-07-13 | Accepted : 2018-03-28 Abstract: This article aims to reviews corruption in Nigeria, the plea bargain concept, the application of plea bargain in the war against corruption in Nigeria and concludes with recommendations.
Corruption in Nigeria has become endemic.
There is consistent desecration of societal values with serious economic and socio-political consequences.
The Nigerian government over the years has put in place several measures to combat the menace called corruption.
A number of anti-corruption agencies including Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices and other Related Offences Commission (ICPC), among others have been established in order to achieve this aim.
In order to address the criticism and contentions associated with the concept under the EFCC Act, the Administration of Criminal Justice Act (ACJA) was enacted in 2015.
ACJA makes elaborate provision for plea bargain so as to enhance quicker dispensation of justice and help in prison decongestion.
This paper begins with brief description on anti corruption scheme established in Nigeria and endeavors to assess the strength of Nigeria’s effort in plea bargain in the war against corruption, effective implementation, and compliance Keywords: Corruption, crime, plea bargain, sentence, administration of criminal justice I.
INTRODUCTION Corruption is defined as an act done with intent to give some advantages which are not consistent with the right of others or official duties.
It is the wrongful use of a person’s position or character to procure some benefits for himself or another, in manners contrary to the rights and duties of others.
1 1 Yusuf O Ali, ‘The Fight Against Corruption in NigeriaMyth or Reality’ in Yusuf O Ali (ed.
),Anatomy of Corruption in Nigeria, Issues, Black’s Law Dictionary defines corruption as 1.
“depravity, pervasion, or taint; an impairment of integrity, virtues, or moral principle; especially the impairment of public official’s duty by bribery.” 2.
“The act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary’s or official’s Challenges & Solutions( Intec Printers Ltd 2016) 4. mailto:akintunde.adebayo@aaua.edu.ng Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 2 | Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria use of a station or office to procure some benefits either personally or for someone else, contrary to the rights of others.”2 It has also been described by another scholar as private gain at the expense of the public.
It is the misuse of public power for private benefit.3 It can also be called the antisocial behavior of appropriating improper benefits against legal and moral norms thereby undermining, true democracy, rule of law and the efforts of authorities to improve the lot of the people.4 It is important to state that the abuse of entrusted powers for private gain negatively affects the populace who believe in and trust the integrity of such persons in positions of authority.5 Corruption pervades every sector and class of the Nigerian society, from the highest position of authority to the least position of authority there is.
This ugly menace has caused the Nigerian state havoc and embarrassment6.
Several trillions of Naira that would have been spent on construction of good roads, build schools, provide health quality health care, create employment for 2 B A Garner (Ed.
), Black’s Law Dictionary (7thedn, West Group Publishing 1999) 348.
3 M McMullan, ‘A Theory of Corruption’ (1961) Social Review 183, 184.
4 Adebayo Adelodun, ‘Moral Impropriety As a Specie of Corruption: An Expose of the Public Service in Nigeria’ inYusuf O Ali (ed.
), Anatomy of Corruption in Nigeria, Issues, Challenges & Solutions(Intec Printers Ltd 2016)33.
5 Ibid, 34.
6 Obialor Collins Friday and Ozuzu Henry Ugochukwu, ‘Corruption and Effective Public Service Performance in Nigeria’ (2017) 5 (3) International Journal of Advanced Studies in Economics and Public Sector Management 71-72.
7 Ali (n 1) 3-4.
8 Kehinde Kolawole Eleja, ‘The Bar in the Vanguard of War Against Corruption’ in Yusuf O Ali (ed.
), Anatomy of Corruption in Nigeria, Issues, Challenges & Solutions (Intec Printers Ltd 2016) 176-177. the teeming youths, provide stable power supply, among others; have been diverted by some private individuals for their private use and benefits.7 One of the obvious effects is the widened the gap between the wealthy and the impoverished.
It has tarnished the image of the country among the comity of nations.8 Some of the forms of corruption are: a.
Embezzlement: This involves the diversion of public funds by individuals or groups in position of authority for their private and personal use.9 Embezzlement of public funds is common.10 Bulk of these embezzled money have been deposited in foreign bank accounts thereby helping other nations where the monies are stashed to develop their economies.11 In Nigeria, the $2.1 Billion which was earmarked for the procurement arms for the military to use to combat Boko Haram insurgency in the country was embezzled.12 The Nigerian Minister of Information and Culture, Mr. Lai Mohammed states that over N1.34 Trillion have been stolen from the nation’s treasury by 55 Nigerians between 2006 9 Press Release, ‘How EFCC Recovered $9.8 Million from Yakubu, Ex-NNPC GMD’Premium Times Newspaper (Nigeria, 10 February 2017) available online at <http://www.premiumtimesng.com/author/pressrelease> accessed 10 February 2017.
10 Eze Anaba, ‘Iborito Spend 4 ½ Years in UK Prison’ Vanguard Newspaper (Nigeria, 18 April 2012) available online at <http://www.vanguardngr.com/2012/04/ibori-tospend-41/2-years-in-uk-prison/> accessed 4 February 2017.
11 Yusuf Alli, ‘Battle to Recover Looted Funds Shifts to Dubai’The Nation Newspaper (Nigeria, 4 February 2017) available online at <http://thenationonlineng.net/battle-recoverlooted-funds-shifts-dubai/> accessed 4 February 2017.
12 Mike Uzochukwu, ‘Review, Causes, Effects and Solution to Corruption in Nigeria’ available online at <https://soapboxie.com/worldpolitics/Corruption-in-Nigeria> accessed 16 January 2017. http://www.premiumtimesng.com/author/press-release http://www.premiumtimesng.com/author/press-release https://soapboxie.com/world-politics/Corruption-in-Nigeria https://soapboxie.com/world-politics/Corruption-in-Nigeria Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria | 3 and 2013.13 He further states that out of the 55 persons, 15 were former governors of states in Nigeria.
Mr. Mohammed alleges that the former governors have stolen N146.84 Billion; N7 Billion stolen by 4 former ministers; more than N14 Billion stolen by 12 former public servants, both at federal and state levels.
He also alleges that 8 people in the banking industry have stolen N524 Billion and 11 businessmen linked with the theft of N653 Billion.14He went on to state that going by the World Bank’s ratio, one third of the public funds allegedly stolen by these 55 persons would have been sufficient to construct 635.18 kilometres of road; provide 36 ultra-modern hospitals (one ultra-modern hospital per state) and build 183 schools.
The said amount would have been sufficient to sponsor the education of 3,974 Nigerians from primary to tertiary education level at N25.24 Million per child and built 20,062 units of 2-bedroom apartments.15 b.
Bribery: It is the offering of money, its worth, goods or services in order to gain an unfair advantage which are capable of influencing a person’s decision, opinion, change the outcome of a legal or regulatory process, speed up a government grant, reduce amount of fees to be collected, among others.16 13 Sani Tukur, ‘55 Nigerians stole over N1.34 Trillion in 8 years’Premium Times Newspaper(Nigeria, 18 January 2016) available online at<http://www.premiumtimesng.com/news/headli nes/196981-55-nigerians-stole-over-n1-34trillion-in-8-years-lai-mohammed.html> accessed 17 January 2017.
14 Ibid.
15 Ibid.
16 Ali (n 1) 5.
17 Patience A Okparavero, ‘An Overview of the Various Anti-Corruption Laws in Nigeria’ (2016) 4 (1) Akungba Law Journal 59.
It is the corrupt payment, receipt or solicitation of a private favour for official action.17 A very good example of bribery is the Halliburton scam where over $180 Million was alleged to have been given to some public officials and highly placed political office holders in Nigeria by members of staff of Halliburton Company to influence a contract for the construction of natural gas plant in the Niger Delta.18 Back in the US, in an action for bribery, Halliburton Company and its former subsidiary, Kellogg Brown & Root pleaded guilty to the charge and consequently agreed to pay $579 Million fine.
On the other hand, in Nigeria, the top government functionaries linked to the alleged bribery of over $180 Million bribe have not been brought to book yet.19 c. Misuse of Public Property and Funds: This involves the inappropriate use of public properties which are in custody of officials who are saddled with the responsibility of keeping such.
Examples include, vehicles, landed properties, among others.20 d. Influence Peddling: It involves trading on the influence or connection with persons in high positions of authority.21 e. Favouritism and Nepotism: This is a belief that a person must always favour family, 18 Sani Tukur, ‘EFCC Reopens Halliburton Bribery Case, Senior Nigerian Lawyer Quizzed, 5 others s for Probe’Premium Times Newspaper (Nigeria, 13 February 2016) available online at <http://www.premiumtimesng.com/news/headline s/198365-efcc-reopens-halliburton-bribery-casesenior-nigerian-lawyer-quizzed-5-sansprobe.html> accessed 17 January 2017.
19 Ibid.
20 Ali (n 1) 6.
21 Ibid, 7; I T Muhammad, ‘Fight Against Corruption in Nigeria: Sharia Point of View’ in Yusuf O Ali (ed.
), Anatomy of Corruption in Nigeria, Issues, http://www.premiumtimesng.com/author/sani http://www.premiumtimesng.com/news/headlines/196981-55-nigerians-stole-over-n1-34-trillion-in-8-years-lai-mohammed.html http://www.premiumtimesng.com/news/headlines/196981-55-nigerians-stole-over-n1-34-trillion-in-8-years-lai-mohammed.html http://www.premiumtimesng.com/news/headlines/196981-55-nigerians-stole-over-n1-34-trillion-in-8-years-lai-mohammed.html http://www.premiumtimesng.com/news/headlines/198365-efcc-reopens-halliburton-bribery-case-senior-nigerian-lawyer-quizzed-5-sans-probe.html http://www.premiumtimesng.com/news/headlines/198365-efcc-reopens-halliburton-bribery-case-senior-nigerian-lawyer-quizzed-5-sans-probe.html http://www.premiumtimesng.com/news/headlines/198365-efcc-reopens-halliburton-bribery-case-senior-nigerian-lawyer-quizzed-5-sans-probe.html http://www.premiumtimesng.com/news/headlines/198365-efcc-reopens-halliburton-bribery-case-senior-nigerian-lawyer-quizzed-5-sans-probe.html Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 4 | Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria friends and cronies above all others in all cases, even when they ordinarily do not merit the particular thing they seek.
This comes to play in employment, promotions, transfers, appointment to political offices, giving of assignments, among others.22 f. Patronage: This involves the granting of contracts or favours to individuals by public officials or political office holders in expectation of political support and patronage.
This is very common among politicians in Nigeria.23 g. Duress and Undue Influence: Cases of duress and undue influence can be found in tertiary institutions in Nigeria, lecturers using their position to take undue advantage of students.
It is common to find male lecturers particularly harassing and mounting pressure on ladies in order to sleep with them in exchange for good grades.
Many students who do not merit admission to tertiary institutions of learning secure admission through bribery thereby short-changing those who ordinarily would have been admitted on merit.
Other form of corruption include: Public official using private companies to get contracts or benefits from his office;24public official transacting business during office hours;25 when a public official who has been assigned to travel by air to attend to an official engagement goes by road in order to Challenges & Solutions (Intec Printers Ltd 2016) 147-148.
22 Philips O Okolo and Akpokighe Okiemute Raymond, ‘Corruption in Nigeria: The Possible Way Out’ (2014) 14 (7) 35.
23 Ibid, 8.
24 Michael M Ogbeidi, Political Leadership and Corruption in Nigeria since 1960: A SocioEconomic Analysis’ (2012) 1 (2) Journal of Nigerian Studies 15-16.
25 Ibid.
cut cost and make some gains out of it;26 when public officials go on further studies without appropriate approval for such;27 when public officials failed to attend seminars, courses and trainings and yet claimed full financial benefits for them;28money laundering;29 examination malpractices30, among others.
This article aims to reviews corruption in Nigeria, the plea bargain concept, the application of plea bargain in the war against corruption in Nigeria.
II.
LEGAL MATERIALS AND METHODS This paper begins with brief description on anti corruption scheme established in Nigeria and endeavors to assess the strength of Nigeria’s effort in plea bargain in the war against corruption, effective implementation, and compliance III.
RESULTS AND DISCUSSIONS Evolution and History of Corruption in Nigeria Corruption in Nigeria can be traced to the time of the country’s colonialism.
The British colonial government colonized Nigeria by force, undue influence and corruption.31During colonialism, there was usurpation of powers, exploitation, injustice, inequality, domination, discrimination, 26 Rotimi Ekundayo Mathew, et.al, ‘Analysis of Corruption and Economic Growth in Nigeria’ (2013) 4 (4.2) Afro Asian Journal of Social Sciences 4.
27 Ibid.
28 Adelodun (n 4) 49 29 Obialor and Ozuzu (n 6) 72.
30 Omenka Iba Jacob, ‘The Effect of Corruption on Development in Nigeria’ (2013) 15 (6) Journal of Humanities and Social Science 40.
31 Ali (n 1) 14.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria | 5 among others.32 It therefore follows that one of the legacies Nigeria as a colony of Britain inherited after independence is corruption.33 Hence, the seed of taking undue advantages and opportunities, lack of merit, impatience sown by the colonialists have grown over the years and is thriving in the present Nigeria.34 Nigerian leaders who are following the steps of the colonialists consider the country’s assets, their personal property, thus, treat as they please.35 Corruption is found in both public and private sectors.36In the public sector, Police Officers publicly take bribes from motorists and motorcyclists, arbitrary arrest and extort money from arrested persons before they could be released on bail, among others are the norm.37 In the health sector, doctors take money from people to issue fake sick leave certificates, doctors and nurses in government owned health facilities ask for 32 Anthony A Akinola, ‘Nigeria’s History of Corruption’ Guardian Newspaper ( Nigeria, 14 January 2015) available online at https://m.guardian.ng/opinion/columnists/akinolanigeria-s-history-of-corruption/ accessed 20 March 2018.
33 Ejovi Austine, et.al, ‘Corruption in Nigeria: A Historical Perspective’ (2013) 3 (16) Research on Humanities and Social Sciences 19-20.
34 Ibid.
35 Philips O Okolo and Akpokighe Okiemute Raymond (n 22) 35.
36 Shaibu Inalegwu, ‘Maina, Others Defraud Police Pension Fund of N21 Bn’ Vanguard Newspaper (Nigeria, 9 March 2012) available online at<http://www.vanguardngr.com/2012/03/mainaothers-defraud-police-pension-fund-of-n21bndcp/>accessed 17 January; Leo Sobechi, ‘DiezaniAlison Madueke: Scaring the Golden Face of a Lost Era’Guardian Newspaper (Nigeria, 11 October 2015) available online at <http://guardian.ng/features/policy-apolitics/diezani-alison-madueke-scaring-thegolden-face-of-a-lost-era/> accessed 12 January 2017; Bassey Udo, ‘NEITI Audit Uncovers N2.23 Trillion Lost, Unremitted revenues by NNPC in 2013’Premium Times Newspaper (Nigeria, 23 May 2016) available online at <http://www.premiumtimesng.com/news/headline bribes before they carry out surgical operations or treat patients, doctors in government owned facilities divert patients to their private hospitals where they extort them, among others.38 In the judiciary, judgment now goes to the highest bidder among disputing parties.
Currently, some judicial officers of superior Courts of record in the country are standing trial for various corruption related offences.39The academia is not spared from this ugly menace as some academic staff of tertiary institutions have made passing of examinations to be dependent on purchase of ‘hand-out’ rather than the knowledge of the candidate on a course.
Some set of students, who are considered ‘special students’ have the privilege of writing special examinations or getting graded specially.
This of course has a price attached to it, which is either paid in cash or kind.40 s/203908-neiti-audit-uncovers-n2-23trillion-lostunremitted-revenues-by-nnpc-in-2013.html> accessed 12 January 2017.
37 Olaleye Aluko, ‘17 Policemen Arrested for Taking Bribes’ Punch Newspaper (Nigeria, 2 November 2016) available online at <http://punchng.com/17-policemen-arrestedtaking-bribes/> accessed 16 January 2017; Okparavero (n 16) 58-59.
38 ‘Medical Doctor, 3 Others Charged to Court for Corruption, Theft’ available online at <http://icirnigeria.org/medical-doctor-3-otherscharged-to-Court-for-corruption-theft/> accessed 17 January 2017.
39 Soni Daniel, Henry Umoru and Ikechukwu Nnochiri, ‘Alleged Corruption: Justices Okoro, Ademola, Ngwuta Risk 58 years Jail’ Vanguard Newspaper (Nigeria, 1 November 2016) available online at <http://www.vanguardngr.com/2016/11/allegedcorruption-justices-okoro-ademola-ngwuta-risk58-yrs-jail/> accessed 16 January 2017.
40 Femi Makinde, ‘Trending: Uniosun Lecturer in Sex Scandal Video’ Punch Newspaper (Nigeria, 11 August 2016) available online at <http://punchng.com/uniosun-lecturer-sexscandal-video/> accessed 16 January 2017; Okparavero (n16).
https://m.guardian.ng/opinion/columnists/akinola-nigeria-s-history-of-corruption/ https://m.guardian.ng/opinion/columnists/akinola-nigeria-s-history-of-corruption/ http://www.vanguardngr.com/2012/03/maina-others-defraud-police-pension-fund-of-n21bn-dcp/ http://www.vanguardngr.com/2012/03/maina-others-defraud-police-pension-fund-of-n21bn-dcp/ http://www.vanguardngr.com/2012/03/maina-others-defraud-police-pension-fund-of-n21bn-dcp/ http://guardian.ng/features/policy-a-politics/diezani-alison-madueke-scaring-the-golden-face-of-a-lost-era/ http://guardian.ng/features/policy-a-politics/diezani-alison-madueke-scaring-the-golden-face-of-a-lost-era/ http://guardian.ng/features/policy-a-politics/diezani-alison-madueke-scaring-the-golden-face-of-a-lost-era/ http://www.premiumtimesng.com/news/headlines/203908-neiti-audit-uncovers-n2-23trillion-lost-unremitted-revenues-by-nnpc-in-2013.html http://www.premiumtimesng.com/news/headlines/203908-neiti-audit-uncovers-n2-23trillion-lost-unremitted-revenues-by-nnpc-in-2013.html http://www.premiumtimesng.com/news/headlines/203908-neiti-audit-uncovers-n2-23trillion-lost-unremitted-revenues-by-nnpc-in-2013.html http://punchng.com/17-policemen-arrested-taking-bribes/ http://punchng.com/17-policemen-arrested-taking-bribes/ http://icirnigeria.org/medical-doctor-3-others-charged-to-court-for-corruption-theft/ http://icirnigeria.org/medical-doctor-3-others-charged-to-court-for-corruption-theft/ http://www.vanguardngr.com/2016/11/alleged-corruption-justices-okoro-ademola-ngwuta-risk-58-yrs-jail/ http://www.vanguardngr.com/2016/11/alleged-corruption-justices-okoro-ademola-ngwuta-risk-58-yrs-jail/ http://www.vanguardngr.com/2016/11/alleged-corruption-justices-okoro-ademola-ngwuta-risk-58-yrs-jail/ http://punchng.com/uniosun-lecturer-sex-scandal-video/ http://punchng.com/uniosun-lecturer-sex-scandal-video/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 6 | Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria The government and her agencies are not spared from the plague of corruption.
About the 15th day of March 2014, the Federal Ministry of Interior placed a recruitment advert wherein about 676,000 applicants applied for the 4,556 positions advertised by the Nigerian Immigration Service.
The applicants paid for the application forms and bought test kits.
Record has it that about 18 people died nationwide following stampede at the various test venues.41However, the then Minister of Interior, Mr. Abba Moro, two former senior officers in the Ministry and a company known as Drexel Tech Nigeria Limited were subsequently arraigned before a federal High Court, Abuja by the Economic and Financial Crimes Commission (EFCC) in February 2016.
They were charged with offences of defrauding 676, 000 job applicants having paid N1, 000.00 each for the advertised positions.42 Surveys were conducted by Transparency International (a global civil society organization leading the fight against corruption) to determine the level of corruption among different nations between year 2000 and 2015.
About 90 nations including Nigeria were reviewed.
The surveys however revealed Nigeria as the most corrupt nations of all the nations 41 Leadership Editorial, ‘Immigration Job Scam Forgotten?’ Leadership Newspaper (Nigeria, 2 August 2014) available online at <http://leadership.ng/opinions/editorial/379760/i mmigration-job-scam-forgotten> accessed 16 January 2017.
42 Ronald Mutum, ‘Immigration Recruitment: EFCC Detains Abba Moro’ Daily Trust Newspaper (Nigeria, 23 February 2016) available online at <www.dailytrust.com/ng/news/general/immigrati on-recruitment-efcc-detains-abbamoro/134911.html> accessed 16 January 2017.
43 Uzochukwu (n 11); Linus Akor, ‘The Transparency International and Nigeria’s Corruption Perception Index: Implications for Sustainable considered in the first year of the survey.43 The following year, Nigeria was considered the 2nd most corrupt nation and Bangladesh being the most corrupt.44 In 2002, out of 102 nations surveyed, Nigeria still maintained 2nd most corrupt nation in the world.45 It was the same in 2003.46 In 2004, 146 nations were examined; Bangladesh and Haiti were considered the most corrupt and 2nd most corrupt nations respectively.
Nigeria however emerged the 3rd most corrupt nation in the world for that year.47 158 nations were appraised in 2005 and Nigeria emerged the 8th most corrupt in the world.
In 2006, Nigeria was considered the 21st most corrupt nation in the world for that year.48 In 2007, Nigeria out of 180 nations was regarded as the 33rd most corrupt nation in the world.49 Nigeria took the 121st place out of 180 nations surveyed in 2008.
In 2009, Nigeria emerged 130th out of the 180 nations surveyed.
The report of the 2011 showed that Nigeria emerged 143rd among the 183 nations covered by the survey.
In the 2012 report, Nigeria ranked 135th out of the 178 nations polled.50 In the year 2013, Nigeria occupied the 144th place out of 177 nations surveyed for that year.51 Nigeria took 136th position out 174 nations appraised for the year 2014.52 Out of the 168 nations surveyed in 2015, Nigeria took 136th place.53 Transformations’ (2014) 3 (5) Global Journal of Interdisciplinary Social Sciences 37-41.
44 ‘Corruption Perception Index’ available online at <http://www.transparency.org/research/cpi/overvi ew> accessed 17 January 2017.
45 Ibid.
46 Corruption Perception Index (n 39).
47 Ibid.
48 Corruption Pereception Index (n 39).
49 Ibid.
50 Corruption Perception Index (n 39).
51 Ibid.
52 Corruption Perception Index (n 39).
53 Ibid.
http://leadership.ng/opinions/editorial/379760/immigration-job-scam-forgotten http://leadership.ng/opinions/editorial/379760/immigration-job-scam-forgotten http://www.transparency.org/research/cpi/overview http://www.transparency.org/research/cpi/overview Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria | 7 Causes of Corruption in Nigeria Absence of National consciousness, Patriotism and Loyalty: Absence of national consciousness, patriotism and loyalty seems to be the order of the day in Nigeria.54 Tribalism and ethnicity is found in every sector.
People want only people from their tribe to occupy public and political offices.
Even when some of the leaders abuse their powers, reactions of Nigerians are based on sentiments depending on the tribe or ethnicity of the leader in question.
That is the reason why a public official or political office holder from a particular tribe will appoint only people from his tribe, at the detriment of other Nigerians from other tribes.55 Yet another one is bad examples from leaders and mentors in the society.56 It is now common for members of the Nigerian society to condone and celebrate people who have illegitimately acquired wealth, rather than question them like it was obtainable in the olden days when morality, integrity, honesty and uprightness were greatly appreciated and valued.
People publicly celebrate public officials and political office holders who are either undergoing corruption charges or have been convicted and completed terms for corruption related offences.57 Desperation for Wealth: There is now serious desperation for wealth.
Our society is now such that one can only be relevant or respected when he is wealthy.
This has made 54 ‘The Root Causes of Corruption in Nigeria’ Nigerian Tribune (Nigeria, 21 July 2016) available online at <www.tribuneonlineng.com/root-causecorruption-nigeria/> accessed 20 March 2018.
55 Akor(n 38) 41.
56 Shuaib Olanrewaju Moyosore, ‘Corruption in Nigeria: Causes, Effects and Probable Solutions’ (2015) 1 (8) Journal of Political Science and Leadership Research 27-28.
57 O Ogundele, ‘Thanksgiving Service for Ibori in Oghara’The Nation Newspaper(Nigeria, 12 February 2017) available online at so many people to resort to desperation to acquire wealth in order to be relevant and recognized in the society.
This has greatly discouraged hard work, honesty and decent livelihood.58 Poor or No reward for Moral Uprightness and Integrity: Experiences have revealed that the Nigerian society and the government no longer encourage or reward moral uprightness, integrity and honesty.
Persons with no integrity and moral uprightness get appointed to political offices, they get recognition in form of awards, including the national merit awards whereas those who genuinely deserve to be celebrated and given such awards are neglected and denied.
This could be very discouraging for morally upright and responsible members of the society.59 Impunity: Majority of Nigerians judging from past events hold the opinion that one can get away with any corrupt act in Nigeria.60 This has spurred on and encouraged so many people to engage and continue in acts of corruption without any fears of consequences.
Some individuals are as rich as the country as an entity and no one is asking them questions.
This has had far reaching implications on socio-economic growth as a nation.61 Quest to survive following Systemic Failure: Many Nigerians have resorted to all sort of corrupt practices in a bid to survive the <http://thenationonlineng.net/thanksgivingservice-ibori-oghara/> accessed 13 February 2017.
58 Ibid.
59 Akor (n 43) 41-42.
60 Ibid, 44-46 61 Fola Ojo, ‘Corruption: Nigeria’s Giant Struggle’ Punch Newspaper (Nigeria, 20 October 2017) available online at <https://punchng.com/corruption-nigerias-giantstruggle/> accessed 17 January 2018.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 8 | Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria hardship created by poor economic conditions, poor governance and failure of the government to provide the basic amenities of life.62 There is a high tendency for someone to compromise on integrity, honesty and morality when it comes to survival.
One would rather find a way, whether legitimate or illegitimate to survive first before considering moral values.
Salaries are not paid as at when due by government and even private employers, people are underpaid, there is inflation, high unemployment rate.63 It is now called ‘survival of the fittest,’ as a way of justifying corrupt acts.64It is also now very common to hear a phrase like ‘all way, na way’meaning, anything is permitted, whether legitimate or illegitimate.
This emphasizes desperation in the quest for survival.
Consequences of Corruption The consequences of corruption on a country are enormous.
Some of them are: First, Desecration of Societal Values and Conscience: Corruption has succeeded in destroying our much valued moral code of conduct and conscience as a society.
Gone are the days when phrases such as ‘bad company corrupts good manner,’ ‘a good name is better than gold or silver’ were guiding words in our society.
Corruption has rewritten our moral codes of conduct such that conducts that are now openly endorsed and celebrated were unacceptable and abnormal some decades ago.65 62 Charles E Ekpo, et.al, ‘The Irony of Nigeria’s Fight against Corruption: An Appraisal of President Muhammadu Buhari’s First Eight Months in Office’ (2016) 4 (1) International Journal of History and Philosophical Research 63.
63 Ibid, 64 64 Akor (n 43) 43.
65 Adebayo Adenipekun, ‘The Roles of Nigerian Citizens in the Fight Against Corruption’ in Yusuf Another pertinent consequence is its effect on the economy.
They include; discouraging foreign investments, unfair distribution of wealth to the detriment and disadvantage of the masses, inflation of public spending, destabilization of national budget, hampering of economic growth, increase in public deficit, discouraging productive investment, among others.66 It can also have socio-political consequences on the society.
They include; poverty, lack of guarantee for fundamental human rights, electoral malpractices, cultism, militancy, insurgency, excessive ethnic agitations, underdevelopment, insecurity, undermines democracy and rule of law, lack of good governance and public administration, among others.67 Plea Bargain According to Langbehin, plea bargain is a non-trial mode of procedure.68 He further explains that non-trial procedure undermines the constitutional provision that every citizen in all criminal charges shall be entitled to free and fair trial, within a reasonable time.
When criminals were caught and charged, the government went through a trial and verdict.
But in the 1800s, a trend toward plea bargaining began.
It is on record that between 1880 to 1910, almost 10% of Defendants in Alameda County, United States changed their ‘not guilty’ pleas to ‘guilty of lesser charges’ or pleaded guilty to reduced charges.69 O Ali (ed.
), Anatomy of Corruption in Nigeria, Issues, Challenges & Solutions (Intec Printers Ltd 2016) 84.
66 Ibid, 85.
67 Ibid 85-86; Mohammad (n 21) 154.
68 John H Langbehin, ‘Understanding the Short History of Plea Bargaining’ (1979) 13 Law and Society 261.
69 Ibid.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria | 9 A plea bargain takes place the moment a Defendant agrees to waive his or her right to a trial by pleading guilty to the offence in exchange for a reduced sentence.
When this occurs, the Prosecutor will either charge the Defendant with a lesser offence, for instance, reducing a murder charge to manslaughter or uphold the current charge on the agreement to recommend a less severe sentence than the penalties recommended for such an offence.70 This is done often times in form of compromises between the parties involved, that is, the Defendant and the Prosecutor without having to go through full trial which may take several years as a result of so many factors including, unnecessary adjournments, industrial actions, among others.71 “Justice delayed they say, is justice denied.” One of the earliest cases of plea bargain was recorded in 1881.
The case involved a man known as Albert McKenzie.
He pleaded guilty to a charge of embezzlement in Alameda County in California.
Mr. Mckenzie was at first charged with a felony for taking $52.50 from the sewing-machine company for which he worked.
However, the Prosecution and Defendant entered into a plea bargain agreement instead of going through trial.72 Again, in the popular case of Santobello v. New York,73 the legality of changing what the Defendant and Prosecutor agreed on to a more severe punishment was challenged.
The Court ruled that for a plea bargain agreement to be valid, both the Prosecutor and the Defendant must consent to the terms of the agreement.
In view of this 70 George Beall, ‘Principles of Plea Bargaining’ (1977) 9 (1) Loyola University Chicago Law Journal 175-176.
71 Ibid.
72 ‘Plea Bargaining Gains Favour in American Courts’ available online at <http://www.history.com/thisdevelopment, the Court therefore established its approval of plea bargain by ruling that for a plea bargain agreement to be valid and binding, it must be approved by the Judge.
Record has it that more than 90% of charges in the United States are resolved through plea bargain agreement.74 Plea bargain is often beneficial to both the Prosecutor and the Defendant.
Still, an innocent Defendant may be persuaded to enter the agreement, giving such a Defendant the impression that going into plea bargain negotiation with the Prosecutor is the best for him or her.75 The matter of voluntariness and willingness in plea bargain agreement was raised for the first time in 1970 in the case of Brady v. United States.
In that case, the Defendant, Robert Brady, attempted to change his plea after agreeing to plead guilty to the charge against him in order to get a lighter sentence.
He claimed to have admitted the guilt so as to escape death penalty which is the recommended penalty for the offence upon conviction.
The Supreme Court after hearing the Defendant ruled that his plea was valid because he had the option of refusing the Prosecutor’s offer for a plea bargain but he did not.76 Types of Plea Bargain a.
Charge Bargain: Here the Defendant is given the option of pleading guilty to a lesser charge or to only some of the charges filed against him or her.
For instance, in a situation where a Defendant is charged with murder, the prosecution may give him or her the option to plead day-in-history/plea-bargaining-gains-favor-inamerican-Courts> accessed 16 January 2017.
73 404 U.S 257, 260, 1971.
74 Ibid.
75 John H Langbehin (n 68) 262 76 397 U.S. 742 (1970).
http://www.history.com/this-day-in-history/plea-bargaining-gains-favor-in-american-courts http://www.history.com/this-day-in-history/plea-bargaining-gains-favor-in-american-courts http://www.history.com/this-day-in-history/plea-bargaining-gains-favor-in-american-courts Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 10 | Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria guilty to a lesser offence of attempted murder.
Again, where a Defendant is charged with the offence of money laundering and embezzlement, he may plead guilty to only money laundering charge.77 b.
Sentence Bargain: Sentence can be bargained in a situation whereby a Defendant who is aware of what his sentence would be if he pleaded guilty to a particular serious offence which he is charged with may bargain with the prosecution such that he or she will plead guilty to a lesser offence with lesser punishment.
For example, a Defendant who is charged with the offence of murder with the punishment being death sentence may plead guilty to attempted murder which carries life imprisonment as punishment.78 Plea Bargain in Anti-Corruption War in Nigeria Nigeria operates the adversarial system of criminal justice, as it is found in most common law jurisdictions and the United States.
Under this system, a Defendant is presumed innocent until the contrary is proven beyond every reasonable doubt against him or her by the Prosecution.
This right is guaranteed under the 1999 constitution of the Federal Republic of Nigeria.79 The prosecution in the discharge of its duty must prove its case against a Defendant beyond every reasonable doubt.80 77 Olayiwola Oluwaseyi Adebayo, ‘The Concept of Plea Bargain as a Veritable Tool for Justice or Corruption’available online at <http://www.legalnaija.com/2016/09/the-conceptof-plea-bargain-as.html> accessed 27 January 2017.
78 Ibid.
79 1999 Constitution of the Federal Republic of Nigeria, s. 36.
80 Evidence Act, s. 138 (1) and (2).
It is therefore not incumbent on a Defendant to establish his innocence; it is for the prosecution to do so.
This was emphasized in the case of Ibeziako v. C.O.P.81 Where however a Defendant pleads guilty to a charge against him, he will be convicted based on the plea of guilt.
This does not apply to capital offences where the punishment prescribed is death sentence.
For capital offences, plea of not guilty will be recorded for a Defendant even when he or she pleads guilty.82 Also, by way of precedent, the previous decisions of a higher Court become binding on the lower ones.83 Inquisitorial system of justice on the other hand is found mostly in civil law countries.
Under this system, contrary to what is obtainable under the adversarial system, it is incumbent upon the Defendant to prove his or her innocence against the complainants or persons who have accused him of the offence of which he wanted to stand trial.84The judge here in actively involved in the investigation, preparing evidence, questioning witnesses and finding the truth cases that are brought before his Court.
The Judge before the commencement of trial conducts an investigation into the alleged charge against a Defendant.
Where the Judge finds clear evidence, linking the Defendant to the alleged charge, the Defendant will be presumed guilty and the Judge will proceed with the trial where the Defendant will be availed the opportunity of establishing his innocence.85Judges in 81 (1963) 1 All NLR 61.
82 Criminal Procedure Act, s. 218 and Criminal Procedure Code, s. 187 (2).
83 ‘Differences between an Adversarial and an Inquisitorial Legal System’ available online at <http://www.ashfords.co.uk/article/differencesbetween-an-adversarial-and-an-inquisitoriallegal-system> accessed 17 January 2017.
84 Ibid.
85 Ibid http://www.legalnaija.com/2016/09/the-concept-of-plea-bargain-as.html http://www.legalnaija.com/2016/09/the-concept-of-plea-bargain-as.html http://www.ashfords.co.uk/article/differences-between-an-adversarial-and-an-inquisitorial-legal-system http://www.ashfords.co.uk/article/differences-between-an-adversarial-and-an-inquisitorial-legal-system http://www.ashfords.co.uk/article/differences-between-an-adversarial-and-an-inquisitorial-legal-system Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria | 11 jurisdictions where inquisitorial system of justice is practised usually make decisions on a case-by-case basis.
They are not bound to follow precedents.86 Having differentiated the adversarial system from the inquisitorial system of justice, it is safe to conclude that the concept of plea bargain cannot work in an inquisitorial system.
It can only work in adversarial system.
The reason is simple and clear, under the adversarial system, a Defendant is presumed innocent of criminal allegations against him by the prosecution have been proven beyond every reasonable doubt.
It is only based on the presumption of innocence in favour of a Defendant that he can negotiate his plea with the prosecution.
Under the inquisitorial system of justice, a Defendant would have been presumed guilty during pre-trial investigation and questioning by the judge therefore would have forfeited the presumption of innocence in his favour and the opportunity to negotiate his or her plea since his guilt is already presumed.87 86 Ibid.
87 ‘The Adversarial System vs.
The Inquisitorial System’ available online at <http://www.cblinternational.com/docs/csu0714/the-adversarialvs-inquisitorial-system.pdf> accessed 15 January 2017.
88 ChimezieOgbonna, ‘The Hue and Cry on the Application of Plea Bargain in Nigerian Criminal Justice System: Whether Necessary or Not?’ available online at <http://www.narrator.ng/thehue-and-cry-on-the-application-of-plea-bargainin-nigerian-criminal-justice-system-whethernecessary-or-not/> accessed 15 January 2017; Fido, ‘Obanikoro Fulfills Pact with EFCC: Returns Another N30M, to Pay up N417M’ The Herald Newspaper (Nigeria, 2 February 2017) available online at <http://www.herald.ng/obanikorofulfills-pact-with-efcc-returns-another-n30m-topay-up-n417m/> accessed 02 February 2017; George Oji and Lillian Okenwa, ‘Corruption: Balogun Pleads Guilty, jailed 6 months’ available online at <http://nmonlinenigeria.com/templates/?a=6126> accessed 17 January 2017; BBC News – ‘Former Nigerian Bank CEO Jailed for Fraud’ available online at <http://www.bbc.com/news/worldThe practice of plea bargain is a recent development in the administration of criminal justice in Nigeria.
The delay in the administration of criminal justice and the need to decongest the prisons have informed the introduction of the concept.
The application of the concept in the administration of criminal justice, particularly in corruption cases in Nigeria has been criticized by many Nigerians.
They argue that while plea bargain may work in the advanced climes where there is integrity and people get ashamed for criminal conducts, it may not work in a society like Nigeria where the culture of impunity and lack of integrity reigns.
Opponents of plea bargain also argue that it defeats the fight against corruption since it allows soft landing and less punishment for Defendants who are alleged of corruption.88 The concept of plea bargain in Nigeria was first introduced in the Economic and Financial Crimes Commission (EFCC) Act 2004.89Sections 14-18 of the EFCC Act 2004 africa-11506421>accessed 17 January 2017; Eniola Akinkuotu, ‘Plea Bargain Drama: EFCC Asks Amosu, Others to Plead Guilty, Forfeit 33 Houses’ Punch Newspaper (Nigeria, 10 July 2016) available online at <http://punchng.com/pleabargain-drama-efcc-asks-amosu-others-pleadguilty-forfeit-33-houses/> accessed 17 January 2017; Clement A Oloyede, ‘Anti-Graft War and Plea bargain Mechanism: What Should be Done’ Daily Trust Newspaper (Nigeria, 23 July 2016) available online at <http://www.dailytrust.com.ng/news/law/antigraft-war-and-plea-bargain-mechanism-whatshould-be-done/159869.html> accessed 17 January 2017; Clement A Oloyede, ‘Anti-Graft War and Plea bargain Mechanism: What Should be Done’ Daily Trust Newspaper (Nigeria, 23 July 2016) available online at <http://www.dailytrust.com.ng/news/law/antigraft-war-and-plea-bargain-mechanism-whatshould-be-done/159869.html> accessed 17 January 2017.
89 ‘Subject to the provisions of section 174 of the Constitution of the Federal Republic of Nigeria 1999, the Commission may compound any offence punishable under this Act by accepting such sums http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.herald.ng/obanikoro-fulfills-pact-with-efcc-returns-another-n30m-to-pay-up-n417m/ http://www.herald.ng/obanikoro-fulfills-pact-with-efcc-returns-another-n30m-to-pay-up-n417m/ http://www.herald.ng/obanikoro-fulfills-pact-with-efcc-returns-another-n30m-to-pay-up-n417m/ http://nmonlinenigeria.com/templates/?a=6126 http://www.bbc.com/news/world-africa-11506421 http://www.bbc.com/news/world-africa-11506421 http://punchng.com/plea-bargain-drama-efcc-asks-amosu-others-plead-guilty-forfeit-33-houses/ http://punchng.com/plea-bargain-drama-efcc-asks-amosu-others-plead-guilty-forfeit-33-houses/ http://punchng.com/plea-bargain-drama-efcc-asks-amosu-others-plead-guilty-forfeit-33-houses/ http://www.dailytrust.com.ng/news/law/anti-graft-war-and-plea-bargain-mechanism-what-should-be-done/159869.html http://www.dailytrust.com.ng/news/law/anti-graft-war-and-plea-bargain-mechanism-what-should-be-done/159869.html http://www.dailytrust.com.ng/news/law/anti-graft-war-and-plea-bargain-mechanism-what-should-be-done/159869.html http://www.dailytrust.com.ng/news/law/anti-graft-war-and-plea-bargain-mechanism-what-should-be-done/159869.html http://www.dailytrust.com.ng/news/law/anti-graft-war-and-plea-bargain-mechanism-what-should-be-done/159869.html http://www.dailytrust.com.ng/news/law/anti-graft-war-and-plea-bargain-mechanism-what-should-be-done/159869.html Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 12 | Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria provides for offences which the Commission can exercise jurisdiction.
They include: financial malpractices, terrorism related offences, Retention of proceeds of criminal conduct by public officers and economic as well as financial crimes.
The Act also enables the Commission to enter plea bargain agreement with anyone who has been alleged of a financial crime such that the Commission and the Defendant will negotiate and consequently reduce the charges or sentences against him or her provided the suspect is ready to forfeit and return the loot and proceeds of financial crime.90The Administration of Criminal Justice Laws of Lagos State 2007 also provided for the concept in Lagos State.91 After much criticism about the legality of the concept in the administration of criminal justice in Nigeria, the National Assembly of the Federal Republic of Nigeria in 2015 promulgated the Administration of Criminal Justice Act (ACJA).92 The Act made elaborate provision for the concept and also introduced some stringent measures to ensure efficient and effective application of the concept.
Unlike the ACJL of Lagos State which limits the power to accept plea bargain to only the Attorney-General and Commissioner of Justice of the state, the ACJA provides that any Prosecutor may receive plea bargain offer from the Defendant or offer same to a Defendant.93 The Prosecution is enjoined to accept or give the offer of plea bargain where it considers that of money as it thinks fit, exceeding the maximum amount to which that person would have been liable if he had been convicted of that offence.’ 90 EFCC Act 2004, s. 13 and 14.
91 Administration of Criminal Justice Laws (ACJL) of Lagos State 2007, s. 76 (1) – (10).
92 Administration of Criminal Justice Act (ACJA) 2015, s. 270 (1) – (18).
93 ACJA(n 82) s. 270 (1); ACJL Lagos State (n 81) s. 75. it is in the best interest of justice, general public and prevention of abuse of legal process.94Also, the ACJL of Lagos State provides that plea bargain agreement can only be entered into before the plea of the Defendant is taken while the ACJA provides that plea bargain agreement could be entered into at any time prior to the Defendant entering his defence.
However, certain conditions must be satisfied.95 They are:96 a.
If the Prosecution after examining the available evidence is of the opinion that it may not be sufficient to establish the case beyond reasonable doubt, in a bid to save time, efforts and resources may consider plea bargain; b.
If the Defendant has agreed to return all the loot and proceeds of crime; c. If the Defendant in a case of conspiracy has agreed to work with the Prosecution to investigate and prosecute co-offenders.
The Prosecutor and Defendant or his representative may agree in writing with respect to the sentence to be imposed on the Defendant and other relevant things before plea bargain agreement.97 The said agreement shall be transmitted to the Attorney-General of the Federation and the presiding Judge of the Court where the case is pending shall not involved in the negotiation leading to the agreement but the Court shall be duly informed about such an agreement.98Upon information of the plea 94 ACJA (n 82) s. 270 (3).
95 ACJA(n 82) s. 270 (2); F E Ojeih and D O Okanyi, ‘The Administration of Criminal Justice Act, 2015: An Appraisal’ (2016) 7 Ekiti State University, Ado-Ekiti Law Journal519-522.
96 ACJA (n 82) s. 270 (2).
97 ACJA (n 82)s. 270 (4), (5), (6) and (7).
98 ACJA (n 82)s. 270 (8), (9), (10).
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Adebayo A Reviewof Plea Bargain Concept In The AntiCorruption War In Nigeria | 13 bargain agreement, the Court shall ascertain the admittance of the Defendant to the allegations against him and the voluntariness of the plea bargain agreement.
In appropriate cases, the Court will direct that the loot (money, assets) which parties have agreed to be forfeited under the plea bargain agreement be transmitted to the appropriate victims or persons.99 Anyone who willfully or without just cause obstructs the successful transfer of such loots to the appropriate persons or bodies entitled to them will be guilty of an offence and liable upon conviction to 7 years jail term.100 The pronouncement of the Court following a plea bargain agreement which has been ascertained to be voluntary and free from duress shall be final and not appealable except where fraud is alleged.101 From the foregoing, it can be said that the concept of plea bargain in Nigeria is laudable as it is designed to enhance speedier dispensation of justice and to curb the ever rising awaiting trial prison population.
The concept under the ACJA does not absolve a Defendant of allegations against him as he is still considered a convict whose name must be entered in the central criminal records registry within 30 days from the date the judgment was entered.102 IV.
CONCLUSIONS AND SUGGESTIONS This research discovered that while the concept of plea bargain is laudable and primarily meant to arrest the lingering challenges of delay in the dispensation of justice and prison congestion in the administration of criminal justice in Nigeria, caution must be employed in the use of the concept when it comes to corruption related cases.
The concept however has been criticized by members of the society that it enables the rich to easily escape sanctions.
This conclusion must have been reached considering the number of cases involving prominent politicians, top government officials, former bank chiefs, among others who have gotten soft landing through plea bargain agreement.
This has been considered an affront to justice and inimical to the fight against corruption which has remained a major clog in the wheels of development in Nigeria.
The anti-corruption agencies must therefore be careful in the application of the concept to corruption cases they are handling in order to ensure that it is not abused so as not to make it an escape route for persons who have embezzled public funds or who are guilty of other financial crimes.
Where the concept of plea bargain is misapplied or abused in corruption related cases, it will defeat the essence of punishment which is to serves as deterrence to others with similar intention.
A situation where officials of Nigerian anti-corruption bodies and financial crime offenders are cronies who are readily available to initiate plea bargain will frustrate the anti-corruption initiative and efforts in Nigeria.
It will create a situation whereby offenders get away easily with corruption charges against them and consequently encourage corruption in the society.
99 ACJA (n 82) s. 270 (12), (13).
100 ACJA (n 82) s. 270 (14).
101 ACJA (n 82) s. 270 (18).
102 ACJA (n 82)s. 16 (1)-(3).
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The Inquisitorial System’ available online at <http://www.cblinternational.com/docs/csu0714/theadversarial-vs-inquisitorialsystem.pdf> BBC News – ‘Former Nigerian Bank CEO Jailed for Fraud’ available online at <http://www.bbc.com/news/worldafrica-11506421> Chimezie Ogbonna, ‘The Hue and Cry on the Application of Plea Bargain in Nigerian Criminal Justice System: Whether Necessary or Not?’ available online at <http://www.narrator.ng/thehue-and-cry-on-the-application-ofplea-bargain-in-nigerian-criminaljustice-system-whether-necessary-ornot/> Corruption Perception Index’ available online at <http://www.transparency.org/researc h/cpi/overview> Medical Doctor, 3 Others Charged to Court for Corruption, Theft’ available online at <http://icirnigeria.org/medicaldoctor-3-others-charged-to-Court-forcorruption-theft/> Mike Uzochukwu, ‘Review, Causes, Effects and Solution to Corruption in Nigeria’ available online at <https://soapboxie.com/worldpolitics/Corruption-in-Nigeria> Olayiwola Oluwaseyi Adebayo, ‘The Concept of Plea Bargain as a Veritable Tool for Justice or Corruption’available online at <http://www.legalnaija.com/2016/09/t he-concept-of-plea-bargain-as.html> Plea Bargaining Gains Favour in American Courts’ available online at <http://www.history.com/this-day-inhistory/plea-bargaining-gains-favorin-american-Courts> http://www.vanguardngr.com/2016/11/alleged-corruption-justices-okoro-ademola-ngwuta-risk-58-yrs-jail/ http://www.vanguardngr.com/2016/11/alleged-corruption-justices-okoro-ademola-ngwuta-risk-58-yrs-jail/ http://www.vanguardngr.com/2016/11/alleged-corruption-justices-okoro-ademola-ngwuta-risk-58-yrs-jail/ http://thenationonlineng.net/battle-recover-looted-funds-shifts-dubai/ http://thenationonlineng.net/battle-recover-looted-funds-shifts-dubai/ http://www.ashfords.co.uk/article/differences-between-an-adversarial-and-an-inquisitorial-legal-system http://www.ashfords.co.uk/article/differences-between-an-adversarial-and-an-inquisitorial-legal-system http://www.ashfords.co.uk/article/differences-between-an-adversarial-and-an-inquisitorial-legal-system http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.cbl-international.com/docs/csu0714/the-adversarial-vs-inquisitorial-system.pdf http://www.bbc.com/news/world-africa-11506421 http://www.bbc.com/news/world-africa-11506421 http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.narrator.ng/the-hue-and-cry-on-the-application-of-plea-bargain-in-nigerian-criminal-justice-system-whether-necessary-or-not/ http://www.transparency.org/research/cpi/overview http://www.transparency.org/research/cpi/overview http://icirnigeria.org/medical-doctor-3-others-charged-to-court-for-corruption-theft/ http://icirnigeria.org/medical-doctor-3-others-charged-to-court-for-corruption-theft/ http://icirnigeria.org/medical-doctor-3-others-charged-to-court-for-corruption-theft/ https://soapboxie.com/world-politics/Corruption-in-Nigeria https://soapboxie.com/world-politics/Corruption-in-Nigeria http://www.legalnaija.com/2016/09/the-concept-of-plea-bargain-as.html http://www.legalnaija.com/2016/09/the-concept-of-plea-bargain-as.html http://www.history.com/this-day-in-history/plea-bargaining-gains-favor-in-american-courts http://www.history.com/this-day-in-history/plea-bargaining-gains-favor-in-american-courts http://www.history.com/this-day-in-history/plea-bargaining-gains-favor-in-american-courts
DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.05 | 189 Role and Position of the Defendant in the Plea Agreement Vaxhid Sadriua, Azem Hajdarib aUniversity "Kadri Zeka" Email: vaxhid.sadriu@uni-gjilan.net bFaculty of Law, University of Prishtina "Hasan Prishtina" Email: azem.hajdari@uni-pr.edu (correspondent author) Submitted : 2019-03-30 | Accepted : 2019-08-19 Abstract: The object of this study is the plea agreement in the criminal procedure of Kosovo.
The study focuses on defining the understanding of the plea agreement, specifying the role and position of defendant in the plea agreement, specifying the rights and obligations of the defendant in the plea agreement, and on the elaboration of the importance and effects of the plea agreement for the defendant and withdrawal of such agreement for the reasons that may be related to it.
The results of this paper prove that the guilty plea agreement in the Kosovo courts practice has had a direct effect on mitigation the level of sentence or in some cases acquits punishment.
Looking into this aspect, the biggest benefits resulted on favor of defendants with the status of cooperative witness.
The contribution of this paper is theoretical and practical, since it deals with an issue almost untreated in Kosovo.
These issues focus on legal solutions, theoretical approach, as well as operational aspects concretized in the practical activity of criminal procedure subjects.
The legal, comparative, tracing and theoretical analysis methods have been helped in the preparation of this study.
Keywords: defendant; guilt; agreement; cooperative witness; withdrawal.
I.
INTRODUCTION The plea agreement is a criminal procedure that is important in the context of alternative criminal proceedings.
The role of defendant in reaching such an agreement is immense, maybe even irreplaceable.
This role is determined by the legal position designated to this criminal procedure subject by the Criminal Procedure Code of the Republic of Kosovo.
Consequently, the position of the defendant in the plea agreement consists in: a) undertaking the initiative to enter into this agreement, b) designating the position of the cooperative witness, c) coherent presence in meetings where the plea agreement is negotiated and d) the possibility of rejecting the plea agreement.
The position that the defendant has in the plea agreement determines his/her crucial role within such agreement.
A number of rights and obligations have been assigned to the defendant in the plea agreement with the applicable legislation in Kosovo.
He/she entitled to initiate the procedure for reaching a plea agreement, be present in all meetings mailto:vaxhid.sadriu@uni-gjilan.net mailto:azem.hajdari@uni-pr.edu Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 190 | Sadriu, Hajdari Role and Position of the Defendant in the Plea Agreement where it is discussed about the terms of this agreement, withdraw from the plea agreement, acquire the capacity of cooperative witness, and etc.
Meanwhile, the obligations of the defendant are mainly related to: adherence to the terms of the plea agreement, fulfilling the obligations as a cooperative witness (when they are designated such capacity) and compensation of damage to the injured party.
The plea agreement is importance to the defendant because he/she can benefit in terms of mitigation of the punishment, release from punishment or other considerations in the interests of justice.
These are some of the issues that this study focuses on.
The analysis of the role and position of the defendant in the plea agreement is related to the lack of material on this issue, especially in inspiring criminal procedural parties (especially defendants) and courts to initiate and award a plea agreement in any case where this is possible.
This paper analyzed position of the defendant in the plea agreement due to legislation.
In theory and practice there are some uncertainties regarding the role it may have on initiation or renunciation of such an agreement.
To clarify this and the final findings of this problematic, the paper is organized in a way that analyzes each important element of the role and position of a defendant in the plea agreement.
Looking at this aspect, in this order at the second session analyzes meaning of guilty plea agreement and the role of the defendant in its attainment, the third session analyzes in detail the rights and obligations of a defendant in the agreement on admission of 1 Ilić Goran, Maijić Miodrag, Beljanski Slobodan, Trešnjev Aleksandar, Komentar Zakonika u Krivičnom Postupku, Beograd 2013, p. 476.
2 Alidžanović Vedran, Musić Elis, Sporazum o priznanju krivice – procesni i praktični aspekti the guilty plea, the fourth session deals with the importance of the guilty plea agreement and withdrawal of the defendant, and the fifth session presents the conclusions of the proceedings.
II.
MATERIAL AND METHODS These issues are addressed on focusing on legal solutions, theoretical approach, as well as on concrete aspects of practical activity of criminal procedure subjects.
Moreover, the methodology used in this paper consists on analyzing and comparing data, especially the secondary ones, which includes journals and books published in serious scientific databases as well as laws and commentaries of the Criminal Procedure Code of the Republic of Kosovo and beyond it, it is enough to mention the Commentary that is made to the Law of Criminal Procedure of Serbia.1 III.
RESULT AND DISCUSSION Meaning of the Plea Agreement and Role of the Defendant in Reaching Such Agreement 1) Meaning (notion) of the plea agreement The plea agreement is a legal instrument that is important in the context of scientific treatments.
This agreement is treated by various authors in the sense of a criminal procedure 2 and in the sense of a special alternative procedure.
Such approach is considered natural, based on the fact that even within legal addressing its place has been assigned within alternative procedures, and sometimes outside them.
Thus, the studija slučaja, Zbornik radova, XVII dani kriminalističkih nauka, Pravni Fakultet u Splitu, 2015, issue 18, p. 373.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Sadriu, Hajdari Role and Position of the Defendant in the Plea Agreement | 191 Criminal Procedure Code of the Republic of Kosovo has listed the plea agreement among alternative procedures, including: temporary suspension of proceedings, mediation procedure, non-compulsory prosecution, acquittal and cooperative witnesses3 whereas, the Criminal Procedure Code of the Republic of Albania addresses this agreement, specified as an agreement for cooperation (shortened judgment)4 within Article 37/a, which is about cooperation with justice and Article 37/b, which is about the content of the agreement, and in essence it emerges as a separate criminal procedure institute, which then falls within a number of provisions within this Code.5 On the other hand, in United State of America, the plea agreement (plea bargaining) is first and foremost a USA criminal procedure institute, through which USA courts resolve most of criminal cases.
It considered that 90% of criminal cases in the USA criminal procedure has solved through plea agreements.6 The plea agreement in the USA criminal procedure has not restricted to the weight of the criminal offence, which means that this form of solving the criminal case applied to minor criminal offences and serious criminal offences.
Moreover, a large 3 Article 233 of the Criminal Procedure Code No.
04/L-123.
4 Islami Halim, Hoxha Artan, Panda Ilir, Procedura penale, Commentary, DANIDA and SOROS, Tirana, 2003, p. 516.
5 Article 3 or the Law No.
9276, dated 16.9.2004 and Article 37/b of the Law No.
35/2017 added to the Criminal Procedure Code of the Republic of Albania, Law No.
7905 of 21.03.1995.
6 Fisher George.
Plea bargainging’s triumpf: A history of plea bargaining in America, Stanford University Press, New York, 2003, p. 46; Nikolić Danilo, Stranački sporazum, Beograd, 2009, s. 21; Bajović Vanja, Sporazum o priznanju krivice, Beograd, 2009, s. 55; Stephen C. Thaman, Mirada u komperativnom pravu, Hrvatski ljetopis zakazneno pravo i praksu, Zagreb, Vol.
9, Nr.
1/ 2002, p. 194.
7 Gagula Amna, Sporazum o priznanju krivnje kod krivičnih djela homogenog koneksiteta, Anali number of agreements refer exactly to serious criminal offences.
This alternative procedure has already been accepted by some European countries, such as the case with Italy, Croatia, Albania and other countries as well.7In European legislation, unlike the United States of America, plea agreements apply to minor or moderately severe criminal offences.8 Despite this fact, such restrictions have not been done with Kosovo's criminal legislation yet.9 This approach is an approximation coherence result of Kosovo's Criminal Procedure Code to the basic USA legislation, and in practice, it has followed this very path.
Onwards, the plea agreement is an agreement reached between parties to criminal proceedings, based on which, the state prosecutor, respectively the public prosecutor10 makes mitigation of accusations by making a mitigated legal qualification of the criminal case or by removing some points of indictment, and by proposing to the court the imposition of a lenient punishment while in exchange, the defendant pleads guilty for the criminal offence he/she has been accused, thus avoiding the main trial before the jury,11 and probably even benefiting other Pravnog FakultetaUniverziteta u Zenici .
2016, Issue 17, p. 95.
8 Damaška Marjan, ‘Napomene o sporazumima u kaznenom postupku’ (2004) 11(1) HLJKPP, p. 61.
9 Article 6 of Law No.
03/L-003 on Amending and Supplementing the Provisional Criminal Procedure Code of Kosovo No.
2003/26, dated 6 November 2008.
10 The state prosecutor or public prosecutor is identical terminology.
The Criminal Procedure Code in force uses the term "state prosecutor", unlike the earlier legislation that used the term "public prosecutor".
It is about the same prosecution body.
11 Hadari Albulena, ‘The Role of Plea Agreement in Resolution of a Criminal Case in the Criminal Proceedings of the Republic of Kosovo’ (2018) 2(1) International Journal of Social Sciences and English Literature, 1-6, p. 2.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 192 | Sadriu, Hajdari Role and Position of the Defendant in the Plea Agreement considerations to the interest of justice,12 including the possibility of being released from punishment.13 2) Role of the defendant in the plea agreement The defendant is in the party position in the plea agreement.
This position designates an important role to them, probably even a key role in reaching such agreement.
This key role is manifested from the moment of initiating the initiative to start negotiations on the plea agreement until its finalization.
The key role of the defendant in the plea agreement is manifested at least in these directions: 1.
Initiating the discussion on negotiating the plea agreement.
Although in practice, the discussions on reaching the plea agreement can be initiated by the defence counsel or the state (public) prosecutor, it is indisputable that this initiative can be initiated by the defendant himself.14 “As a rule, he/she applies such initiative through his/her defence counsel,15 but they can also submit it to the state prosecutor directly.”16 It based on the fact that he/she is the subject on whose shoulders weighs the charges for committing the relevant criminal offence.
Therefore, when the accuser and the legal position of the defendant are clear to him/her, the need to obtain concrete benefits mainly to criminal sanctions is given priority.
It expects that in the 12 Sahiti Ejup, Murati Rexhep, Elshani Xhevdet, Criminal Procedure Code of the Republic of Kosovo, Commentary, Publication I, GIZ, Legal Reform Project in Kosovo, Prishtina, 2014, p. 586.
13 Hajdari Azem (a), E drejta e procedurës penale, Pjesa e posaçme, Kolegji ILIRIA, Prishtina, 2013, p. 40.
14 Ibid, p. 41.
15 See Judgment of the Basic Court in Prishtina PP.Nr.
356/2017.
In the present case the initiative to negotiate a plea agreament was put into motion majority of cases, such initiative will come precisely from this procedural subject.
Tthis possibility of the defendant has been accorded through the applicable criminal procedure legislation in the Republic of Kosovo.
2.
Presence in meetings on negotiating the guilty plea.
The solution determined in paragraph 8 of Article 233 of the Criminal Procedure Code clarifies the fact of meeting the criterion of the presence of the defendant in meetings where a guilty plea negotiated.
This presence is mandatory, which implies that such meetings cannot be held without the presence of the defendant.
Thus, he/she should be present at every meeting where a guilty plea negotiated, and without exception, his/her defence counsel should also be present at such meetings.
3.
Agreeing to the terms of the written plea agreement.
The terms of the plea agreement must be clearly defined, reached and concretized in a written agreement.
In order for everyone to comply with the legal provisions, it requires that the defendant agrees to such terms beforehand.17 This is determined by the fact that agreeing on the terms of the plea agreement is one of the most essential elements of the plea agreement.
4.
Initiation, respectively consent to be a cooperative witness.
The plea agreement may include a provision that by the defendant's defense counsel, which was done after consulting with the defendant.
16 Hajdari Azem (b), Commentary, Criminal Procedure Code, College FAMA, Prishtina, 2016, p. 615.
17 See plea agreement dated September 13, 2018 which entered into between the public prosecutor and the defendants of his defense, approved by the Basic Court in Gjilan.
This agreement clearly specifies the obligations of the parties to which they have agreed.
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As noted above, such capacity cannot be assigned without the prior consent of the defendant.
This means that no defendant can be assigned the status of cooperative witness if they do not agree on such thing.
"Some specific rules shall apply for cooperative witnesses, especially regarding the way they are interrogated".20 5.
Rejection of the plea agreement.
According to paragraph 11 of Article 233 of the Criminal Procedure Code of the Republic of Kosovo, the defendant can reject the plea agreement.
They can do this at any time before the court accepts such agreement.
Rejection of the plea agreement can be made even after the court has accepted it, but only if the court of the case agrees.
“The court may agree to the request for rejecting the plea agreement only if it convinces that there are problems related to the failure of the defendant to understand the consequences of the guilty plea, a guilty plea without sufficient consultation with the defence counsel, etc.”21 In such 18 Compare: Sahiti Ejup (a), Witness testimony as evidence in criminal proceedings, University of Prishtina, Pristina, 1993, p. 103.
19 See, Judgment No.
347 of 15 January 2017 of the Basic Court in Pristina.
20 T. Markus Funk, Kosovo trial skills handbook, United States Department of Justice, Office of cases, it acts as if there had been no such agreement.
3) The role of the defendant in the plea agreement in cases when they are designated as cooperative witnesses Paragraph 6 of Article 233 of the Criminal Procedure Code of the Republic of Kosovo has authorized the possibility that the written plea agreement may include a provision by which the court issues an order by which the defendant is designated as a cooperative witness.
In such cases, the defendant's position takes on a different dimension compared to other cases where there is a plea agreement.
This different dimension of the defendant's position reflects in these aspects: 1.
Expansion of the level of cooperation of the defendant in the prevention of other criminal offences, clarification of the truth in criminal proceedings and successful prosecution of other perpetrators.
This cooperation is required to be coherent and sincere.
"In these cases, based on the recommendation of the state prosecutor, the court may impose a lenient punishment to the defendant, ranging between 90% 40% of the minimum punishment prescribed by the Criminal Code for that offence".22 The level of mitigation of the punishment depends on the level of assistance and cooperation provided by the defendant, always taking into account the level of danger of the criminal offence.
Overseas Prosecutorial Development, Assistance and Training, Pristina, 2006, p. 87.
21 Hajdari Azem (c), Shkathtësitë e praktikës gjyqësore, Prishtina, 2013, p. 112.
22 Sahiti Ejup, Murati Rexhep, E drejta e procedurës penale, University of Prishtina “Hasan Prishtina”, Prishtina, 20113, p. 330.
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Confidentiality of factual allegations declared by the defendant.
This secrecy aimed at clarifying the criminal case is related to the preservation of the content of statements of defendants by other parties and their defence counsels.
As a rule, the court shall issue a secrecy order for this issue.
This order is required to be strictly observed by other parties and their defence counsels.
This dimension of the defendant position as a cooperative witness should be reflected in protecting such defendant.
"This protection consists of the legal determination of the state prosecutor's obligation to target for criminal prosecution any violation of the order by which the secrecy of certain data declares.
Onwards, the lawyer, the defence counsel, the doctor and any other person who, without authorization, disclose the confidential information that he or she has been aware of while exercising their profession may be subject to criminal prosecution".23 3.
Holding closed-door hearing session for reviewing the plea agreement and holding closed plea agreement.
The closed-door hearing session for review of the plea agreement in cases when the defendant agrees to be a cooperative witness is considered to be in the function of mitigating the procedure of reaching a plea agreement and identifying the terms and modalities of cooperation of the defendant with the body of proceedings.
Meanwhile, it looks like keeping the plea agreement closed, inter alia, is in the function of advancing the effectiveness of fulfiling the cooperation terms by the defendant, a purpose which may be endangered in cases where the plea 23 Hjadari (b), p. 630.
24 Pavišić Berislav, Vučković Milojko, Veić Petar, Radulović Aldo, Zakon o Kaznenon postupku agreement not attributed this status.
In this regard, the fulfilment of the obligations deriving from the plea agreement of the cooperative witness may be endangered by the co-defendants, witnesses of other subjects that have interest in many cases when they have information on the existence of the plea agreement and terms and modalities of cooperation of the defendant with the body of the proceedings.
4.
Prohibition of the initiation or continuation of criminal proceedings and imposition of punishment.
The prohibition of initiating or continuing the criminal proceedings and imposing a punishment to cooperative witnesses is a benefit given to them by the case prosecutor or the court.24 In all these cases, the defendant designated as a cooperative agreement through the plea agreement receives a relaxing infusion within a specific criminal proceeding.
Thus, the criminal proceedings did not initiate in the first case against the defendant, which means that it may never be initiate.
In the second case, the criminal proceedings initiate against the defendant are terminated.
Even in this case, the criminal proceedings may not continue at all, which means that they can cease.
In the third case, the imposition of the punishment is prohibited.
In such cases, following the applicable legislation, the defendant may be released from punishment, or receive a lenient punishment, but only after the criminal proceedings are completed for all other co-accused, in the manner as specified by law.
s’komentarom, literaturom i sudskom praksom, Zagreb, 1998, p. 298.
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6 No.2 (2019) State Regulations and Law Enforcement Sadriu, Hajdari Role and Position of the Defendant in the Plea Agreement | 195 The Rights and Obligations of The Defendant In The Plea Agreement Generally speaking, there can be no agreements without a clear definition of the rights and obligations of the parties.25 Neither the plea agreement is an exception to this rule.
Onwards, as a party to such an agreement, the defendant has several of rights and obligations.
For the corpus of these rights and obligations, it will be discussed in the continuation of this study.
1) The rights of the defendant in the plea agreement The defendant in the plea agreement is entitled to some so-called essential rights.
These are the rights which in the best way possible specify the key position the lawmaker has assigned to the defendant in the framework of such an agreement.
The following are considered as rights that the defendant is entitled to: 1.
The right to initiate discussions on the plea agreement.
Although the Criminal Procedure Code does not explicitly state, from the way the legal solutions formulate through which the plea agreement is addressed, it can be easy to ascertain the fact that the defendant fully allow the possibility of initiating such procedure.
The defendants can present this initiative through their defence counsels, but they can also do this individually through expressing this interest to the case prosecutor.
These situations are expected to occur especially in criminal offences that are prosecuted according to the proposal of the injured party, but without excluding criminal offences prosecute ex officio.
25 Compare: Sahiti Ejup (b), Argumentimi në procedurën penale, University of Prishtina, Prishtina, 199, p. 228.
2.
The right to participate in meetings on the negotiation of the plea agreement.
As noted above, this participation is mandatory.
This means that no meeting relates to the plea agreement can be held without the defendant being present.
Any eventual holding of such a meeting is illegal and does not effect.
3.
The right to comply with the limits of punishment to be proposed.
Through the plea agreement, the defendant can acquire facilitations regarding the punishment and other considerations in the interests of justice, such as release from punishment.26 Pursuant to paragraph 13 of Article 233 of the Criminal Procedure Code of the Republic of Kosovo, the plea agreement may include the provision where parties agree on the limits of punishment to be proposed to the court by the state prosecutor.
This legal provision clarifies the fact that the right of the defendant to comply with the limits of the punishment proposed to the court exists.
Looking at this aspect, his/her role in this process should be seen in an active sense.
This means that he/she, based on legal solutions, can propose ideas about the degree of punishment and insist on their materialization.
4.
The right to reject the plea agreement.
As noted above, the defendant has the right to reject the plea agreement at any time before the court accepts such an agreement.
In such a case, the defendants' statements given during the plea agreement negotiation must be considered inadmissible evidence at the judicial review and in any other proceedings.27 26 Article 73 of the Criminal Code of the Republic of Kosovo, Code No.
06/L-074.
27 Hajdari (a), p. 42.
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The right to be a cooperative witness.
In cases of subjective connection, the defendant can acquire the capacity of a cooperative witness.
This capacity cannot be imposed on him/her by anyone and under no circumstance.
As it results, this constitutes an opportunity, in the sense of a right, which may be considered by the defendant himself.
Of course, he/she will consider this right in so far as he/she considers the favours provided with the plea agreement acceptable in terms of facilitation accorded in connection with criminal sanctions.
6.
The right to withdraw from pleading guilty included in the plea agreement.
According to paragraph 22 of Article 233 of the Criminal Procedure Code, the defendant is entitled to request a withdrawal from pleading guilty.
The request for this a withdrawal should submit to the case court, and it has the authority to accept or reject it.
Of course, the court will allow withdrawal from pleading guilty included in the plea agreement in cases when it considers that any of the conditions foreseen by law has been fulfilled.
These conditions are: a) the defendant has not understood the nature and consequences of pleading guilty, b) guilty plea has not been done voluntarily and after sufficient consultations with their defence counsel, c) the guilty plea is not supported by material evidence of the case concrete facts contained in the indictment; or d) when there are circumstances that determine the dismissal of the indictment, e.g.
when the defendant is criminally accountable.
2) Obligations of the defendant in the plea agreement In addition to the rights above, the written plea agreement must also specify the obligations of the parties (state prosecutor and defendant).
In this case, the most important obligations of the defendant will elaborate which, as a rule, may be specified in an eventual plea agreement.
As obligations that may be imposed on defendants in the plea agreement, among others, are considered as follows: 1.
Adherence to the terms of plea agreement.
Paragraph 12 of Article 233 of the Criminal Procedure Code of the Republic of Kosovo defines that the plea agreement must contain all the conditions of the agreement.
Pursuant to this legal provision, the agreement in question must at least include: a) the points of the indictment for which the defendant pleads guilty, b) if the defendant agrees to cooperate, c) the rights waived, and d) the liability of the defendant for compensation of the injured party, including confiscation of all assets which, under the requirements of the law, are subject to confiscation.
In accordance with this legal solution, and other solutions through which the plea agreement addressed, such agreement may inter alia include: a) limits of the punishment to be proposed by the state prosecutor to the case court or other considerations in the interests of justice, such as release from punishment, b) an order issued by the court through which the defendant has been declared as a cooperative witness, and c) the concrete measures deemed necessary for the protection of the witness.
It is worth pointing out the fact that the inclusion of the last three conditions is not expected to occur in every plea agreement.
They may be part of certain agreements, e.g.
to the plea agreement where the defendant is Brawijaya Law Journal Vol.
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"The conditions included in the plea agreement are binding on the parties to the agreement".
This means that non-compliance with any of them constitutes a reason for the conscientious party to apply the mechanism of withdrawal from such agreement, which also means its revocation.
2.
Fulfilment of the obligations defined in the order designating the defendant as a cooperative witness.
As noted above, the plea agreement may also include the order by which the court designate the defendant as a cooperative witness.
As a rule, such order defines: a) criminal offences, with the determination of actions and their qualification, for which the prohibition of initiating or continuing criminal proceedings or imposition of the punishment is ordered, b) prohibition of initiating or continuing the criminal proceedings against the cooperative witness for a criminal offence defined in the order, c) the nature and content of cooperation provided by the defendant as a cooperative witness, and d) the condition of the revocation of the order.
Of all these conditions, only the one specified in point (c) relates to the obligations referred to the defendant.
This condition places an obligation to the defendant as a co-operative witness with due diligence to respect the nature and content of the cooperation for which he has been accorded.
Within the nature and content of the cooperation, one or more of the following conditions may be 28 Tomašević Goran, Pajčić Matko, Subjek o kaznenom postupku: Pravni položaj žrtve i oštečenika u novom hrvatskom kaznenom postupku, UDK 343.
988 343.138 Primljeno 20. listopada 2008.
Izvorni znanstveni rad, s. 822. included depending on the case: a) the prevention of committing other criminal offences by another person, b) the contribution towards clarification of the truth in criminal proceedings and c) contribution to the successful prosecution of other perpetrators.
Failure to comply with such conditions (one or more) is always expected to have the effect of revoking the order by which the defendant was designated as a cooperative witness but also in withdrawing and revoking the plea agreement, in so far as it touches the foundations of such an agreement.
3.
Compensation of damage to the injured party.
The committing of a criminal offence may cause material and moral damage to a third person.
In criminal proceedings, this third person is called the injured person.28 As regards the damage suffered from the criminal offence, the injured party may request compensation for material damage, lost profit, as well as moral damage compensation, which is related to the violation of any personal right such as a) honour, b) authority, c) experiencing physical or mental pain, etc.29 Pursuant to Article 233 of the Criminal Procedure Code of the Republic of Kosovo, the issue of damage compensation is also required to be addressed within the plea agreement, “although the injured parties are never fully compensated for the damage suffered in the criminal offence, where they are victims”.30 Regarding this, paragraph 8 of this Article imposes obligations on the state prosecutor to 29 Hajdari Azem, Edrejta e procedurës penale, Pjesa e përgjithshme, Prishtina, 2014, p. 83.
30 Kurtner Luis, Crime – torts: Due process of compensation for crime victims, Notre Dame Law Review, Volume 41, Issue 4, p. 499.
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Onwards, when such a claim exists, the plea agreement must address the claim for compensation of damage presented by the injured party.
In such cases, the injured party should be allowed to file a statement to the court on the claim for compensation before the court accepts the plea agreement.
Also, in cases when the defendant is designated as a cooperative witness, the state prosecutor has a legal obligation to address the issue of compensation of the damage derived from the criminal offence included in the indictment.
The provisions that regulate the plea agreement in both paragraphs (8 and 9 of Article 233), related to damage compensation (legal property claim), does not specify the obligation of the court to resolve the damage party's claim in criminal proceedings for compensation of damage but it requires that the same be treated in the framework of such an agreement.
4.
This means that in cases where there is a plea agreement, the court is free to decide whether to give a solution to the claim for compensation of damages or to instruct the injured party that its realization sought in a civil dispute.
Despite such possibilities given by the Kosovar lawmaker, the writer considers that for many reasons it would be expected that the court of the case, when there are opportunities for practical action, always resolves the injured party's claim for compensation if the criminal case is solved in consideration of the plea agreement.
In such a situation, the obligation to compensate the injured party would be very clear and concrete.
The whole corpus of legal provisions dealing with compensation of damage makes clear the fact of the defendant's obligation to compensate for the damage caused to the injured party by committing the criminal offence.
From this rule, this issue makes no exception even when addressing the criminal case through the plea agreement.
The Importance of the Plea Agreement for the Defendant and Its Withdrawal The issue of the plea agreement is not expected if it does not receive the right treatment, if its importance is not elaborated, i.e.
if the advantages that this criminalprocedural institute brings to the parties (the defendant and the state prosecutor) and the general social interest are not explained.
Given this fact, further in this study, the writer will first talk about the importance of the plea agreement and then the revocation of the guilty plea agreement for the reasons related to the defendant.
1) The importance and effects of the plea agreement for the defendant The plea agreement importance to the defendant, it manifests effects of crucial importance in clarifying the truth of the criminal case in criminal proceedings, but also for the defendant himself.
The importance and effects of the plea agreement in relation to the defendant are mainly manifested in these aspects: 1.
Releas from punishment.In order to mitigate the punishment, the following conditions must be met: a) to mitigate the punishment, there should be an appropriate recommendation of the state prosecutor to the case court, b) mitigation should be clearly addressed in the plea agreement, and c) mitigation of the punishment should reflect the level of assistance and cooperation provided by Brawijaya Law Journal Vol.
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Depending on the fulfilment of these conditions, the defendant may benefit from punishment mitigation at 90% 40% of the minimum punishment prescribed by the relevant provisions of the Criminal Code for the criminal offence for which criminal proceedings are conducted.31 Thus, if there is a minimum punishment of three years of imprisonment foreseen for such criminal offence, the court may mitigate the punishment of the defendant and punish him only a little more than one year of imprisonment.
2.
Release from punishment.
The Criminal Code of the Republic of Kosovo (Article 73) foresees the possibility of release from punishment for the perpetrator of the criminal offence.
This means that the court may find that a criminal offence has been committed and its perpetrator is criminally accountable, but the punishment is not reasonable due to the small intensity of the offence or for political and criminal reasons.
In such cases, the court not only authorize by law to declare that the perpetrator responsible for the criminal offense committed, but also to release him from the punishment.32 In order to get a release dtatement from the punishment associated with the plea agreement, the following conditions are required: a) for mitigation of the punishment, there must 31 Article 233, paragraph 7 of the CPCRK.
32 Salihu Ismet, E drejta penale, pjesa e përgjithshme, College FAMA, Prishtina, 2008, p. 509; Shala Afrim, Hyrje në të drejtën penale, College GJILANI, Gjilan, 2013, p. 199.
33 See Judgment no.
234/2013 of the Basic Court in Prishtina.
The accused was charged with theft of theft.
He in the concrete case based on the level of be a request of the state prosecutor to the court of the case, b) the release from punishment should be addressed as possibility of a plea agreement, c) the defendant must have the capacity of cooperative witness; and d) the cooperation of the defendant has prevented other offences from others or has resulted in successful prosecution of other perpetrators of criminal offences.
Consequently, the cooperative defendants can benefit release from punishment only in cases when they are found guilty of a criminal offence punishable by imprisonment of up to ten years.
"Thus, no defendant, despite the level of cooperation, can benefit release from punishment if they are found guilty of the criminal offence punishable by imprisonment of up to ten years".33 3.
Other considerations in the interests of justice, including the interests of the victim, which mainly extend to compensation for damage sustained by the offense.
In addition to the mitigation of punishment and release from punishment, the defendant may acquire, through the plea agreement, other facilitations considered as matters of interest to justice.34 The interest of justice must always be the clarification of the truth, the detection of other offences and other perpetrators of the offence, and the prevention of other criminal offences.
Of course, these issues may reflect different benefits for the defendant, which largely depends on the circumstances that cooperation offered to the court has benefited from mitigation of the punishment to 90% of the minimum provided for by law for this criminal offense.
34 Veljko Turanjanin, Sporazum o priznanju krivice u pravu evropskih zemalja: primjer Italije, Strani pravni život, n˚2/2011, str.
155.
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Thus, in the case "Bllaca", the measure of detention on remand has been replaced with the measure of house arrest for the defendant, for security reasons, the defendant was placed under police custody and supervision for the entire duration of the execution of this security measure, and in the end, the defendant was transferred abroad, perhaps with the purpose that he also cooperates with respect to any case that could be the subject of trial by the Special Court for Kosovo.
2) Withdrawal from the plea agreement on the grounds related to the defendant As with any agreement, the Parties may also withdraw from the plea agreement as well.
This is defined by paragraphs 11 and 22 of Article 233 of the Criminal Procedure Code.
The abovementioned paragraphs address this issue in two manners: Firstly, paragraph 11 refers to the issue of withdrawal from the plea agreement by the parties (the state prosecutor and the defendant) before its approval by the court of the case.
This legal provision grants the defendant the right to withdraw from the plea agreement at any time as long as the court has not accepted such an agreement.
The notice of withdrawal from this agreement must be made to the prosecutor of the case.
This is explained by the fact that such an agreement has not yet been approved by the court.
The reasons, for which the defendant may use this right, are not defined by law.
This means that in this respect, the lawmaker has granted full autonomy to the defendant in the sense that he/she can use whatever reason he/she considers important for withdrawal from the 35 See Judgment no.
331/2014 of the Basic Court in Peja.
plea agreement.
He/she is not even obliged to make the reasons, for the withdrawal, known to the state prosecutor.
However, the reason for withdrawal from the plea agreement may be that the defendant does not want to assist in disclosing one of the co-perpetrators of the criminal offence, but as stated above, he/she can do so for whatever reason he/she considers important for their interests.
Secondly, paragraph 22 refers to the issue of withdrawal from the plea agreement after it has been accepted by the court.
In these cases, to withdraw, there must be accordance of the competent court.
The court may, as a rule, accord with the request of the defendant only if it comes to the conclusion: a) he/she has not understood the nature and consequences of the plea agreement; b) the pleading guilty has not been made voluntarily and after sufficient consultation with the defence counsel c) the pleading guilty is not based on material facts and evidence of a particular case, which are presented in the indictment, or material evidence submitted by the state prosecutor for complenting the indictment and received by the defendant, as well as on other evidence, such as the statements of witnesses presented by a witness or prosecutor, and d) in cases when it is unlikely that the defendant designated as a cooperative witness may prevent other criminal offences from other persons or is unlikely to lead to the clarification of the case in criminal proceedings.35 It is worth mentioning the fact that in both cases, although in the second case when there is an approval by the court, the withdrawal makes the plea agreement null and the criminal proceedings continue to be conducted according to standard rules.
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CONCLUSION The plea agreement is an agreement reached between the criminal procedural parties on the basis of which the state prosecutor mitigates the charges by making more lenient legal qualification of the criminal offence or by removing some of the indictment points, and by proposing to the court the imposition of a more lenient punishment, while the defendant in return pleads guilty to the criminal offence for which he/she was accused, avoiding the main trial before the jury, and taking advantage of other considerations in the interests of justice, including the possibility of release from punishment.
The defendant in the plea agreement has an important role.
This role starts from the moment of initiating the negotiations on the plea agreement until its finalization.
The role of the defendant in such an agreement manifests a scope in the following aspects: initiating the discussion on the negotiation of plea agreement, b) presence in meetings regarding plea agreement negotiations, c) written consent on the terms of the plea agreement and d) initiation or agreement to be a cooperative witness.
The defendant has a key role in reaching the plea agreement even when he/she designates as a cooperative witness.
In these situations, the role of the defendant manifests in: a) extending the cooperation level of the defendant in the prevention of other criminal offences, clarification of the truth in criminal proceedings and successful prosecution of other perpetrators; b) closed hearing session of the plea agreement review, and closed hearing session of the plea agreement and c) the prohibition of initiating or continuing the criminal proceedings and the imposition of a punishment against them.
The defendant is entitled to several rights as regards the plea agreement.
The following are the rights pertaining to the defendant: a) the right to initiate discussions on the plea agreement, b) the right to participate in meetings on the negotiation of the plea agreement, c) the right to comply with the limits of the punishment proposed to the court by the state prosecutor, d) the right to refuse to plead guilty and e) the right to withdraw from the plea agreement.
In addition to the rights, some obligations may also be charged to the defendants with the plea agreement.
Such obligations may be: a) the adherence to the terms of the plea agreement, b) the fulfilment of the obligations set by the order designating the defendant as a cooperative witness, and c) the compensation of the damage.
The plea agreement is of great importance to the defendant.
This is mainly related to: a) realization of benefits in terms of punishment mitigation; b) realization of benefits in the possibility of release from punishment; and c) realization of other considerations in the interests of justice.
Given these facts, the legislator rightfully imposed the obligation that the defendant should be accompanied by their defence counsel in all the discussions to reach the plea agreement.
It shall assist him/her professionally to obtain any potential benefits that can be accorded on the concrete case.
This paper provides readers of Indonesia and other countries with information on the legal aspects of addressing a plea agreament, especially regarding the defendant's role in this alternative procedure in Kosovo and beyond it; the scope of application of this alternative procedure (in Kosovo and beyond it); about its importance it has for the effective and fair resolution of criminal cases and the need to be practiced more frequently, not only in Kosovo but also in other countries.
All of this Brawijaya Law Journal Vol.
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DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.02| 173 Cultural Concern under Trade and Investment Agreements: Does it Really Work?
I Gusti Ngurah Parikesit Widiatedja1 1Faculty of Law Udayana University Email: ngurahparikesit@gmail.com Submitted : 2018-03-15 | Accepted : 2018-10-17 Abstract: There has been a concern over the adverse influence of globalisation on local culture.
Trade and investment agreements have included cultural concern in their provisions.
Employing these provisions, countries initiated trade and investment-related measures to secure what they have presumed as cultural traditions and values.
This article seeks to examine if the incorporation of cultural concern under trade and investment agreement is effective to reconcile the need for securing culture and the spirit of free trade and free flows of investment.
This article is normative research, examining the existing cultural concern under trade and investment agreements, cultural-related measures of particular countries, and how the judicial bodies have responded these measures in their decisions.
This article argues that the incorporation of cultural concern has triggered a wide range of cultural-related measures.
Nevertheless, the decision of judicial bodies, to some extent, has been effective to shield the purpose of cultural concern, especially to avoid disguise or inefficient protectionism, and to admit the right of countries to protect or promote their cultural traditions and values.
Keywords: cultural concern, trade agreements, investment agreements I.
INTRODUCTION Some scholars have expressed their concerns owing to the adverse influence of globalisation over culture.
For example, Huntington (1993) states that culture is the essential aspect that affects the globe in the future, showing this fact as ‘The Clash of 1 Samuel P Huntington, ’The Clash of Civilizations’ (1993) 73(3) Foreign Affairs 22, 23.
Civilizations’.
1 He explains that the primary basis of the clash in the earth would not be mainly economic and philosophical, but cultural.2 It has to be admitted that the strongest actors in world’s matters are states, but the major disputes of world’s politics 2 Ibid.
mailto:ngurahparikesit@gmail.com Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 174 | Widiatedja Cultural Concern Under Trade and Investment Agreements... would take place between states and class of various culture.3 The presence of international trade and foreign direct investment (‘FDI’) has significantly improved the availability of foreign-made products and services into particular host countries.
This process relates not only to tradable activities but also impacts local culture (such as values and traditions) of a particular class.
Historically, the period after World War I commenced the discourse between globalisation and The United States’ (‘US’) culture through Hollywood films took over the dominant control of European movies.4 Later, this control has extended through other cultural goods and services product, comprising not only movies but also televisions, books, as well as music, gearing up the moot from other countries, especially European countries in the global sphere.5 The power of Hollywood’s lifestyles broadly spreads almost all over the earth.6 Through international trade and FDI, all popular culture of US along with its café’s chains and user products have been boosted and distributed to many spectators and consumers world-wide.
For instance, Kim Campbell, previous Canadian Prime Minister stated that US’s image is so massive in the world.7 It does not seem that the globe is relocating to the US, but US has been 3 Ibid.
4 Christopher M Bruner, ‘Culture, Sovereignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products’ (2008) 40 New York University Journal of International Law and Politics 351,354.
5 Peter Van Den Bossche, ‘Free Trade and Culture: A Study of Relevant WTO Rules and Constraints on National Cultural Policy Measures’, (Maastricht Faculty of Law Working Paper Series, 2005) 6.
6 Christopher M Bruner, above n 4, 355.
7 Steve Barth, ‘Cultural Protectionism’ (1998) 11(3) World Trade 43.
8 Ibid.
9 See e.g., Brian M Yecies, ‘Parleying Culture against Trade: Hollywood's Affairs with Korea's emigrating to other parts of the globe, letting people desire as Americans even in a remote country.8 The above-mentioned fact has raised anxieties about the existence of local cultures as opposed to US Culture.
For some countries, this phenomenon led to restlessness whether their own cultures are being exposed.9 Specifically, the invasion of culture from overseas has enhanced the probability of societies to mingle with a new culture.10 For example, the enormous endorsement of money-oriented life, free sex, and violence that are linked to Hollywood’s lives has opposed to local culture.11 However, according to Voon, although conserving genuine culture is crucial, culture has to be endorsed to develop through interplay and interchange with other cultures.
12 Therefore, it is not like imported apples that could be useless if they carried disease from overseas, foreign culture could be beneficial owing to their cultural values and traditions.13 Having acknowledged this trend, trade and investment agreements have commenced placing cultural concern as a means of accommodating the need of particular countries to impose measures about cultural protection without contradictory with the spirit of globalisation and liberalisation.
Ensuring this goal, the dispute settlement Screen Quotas’, (2007) 38 (1) Korea Observer, 1,2.
10 Christopher M Bruner, above n 3, 354.
11 Oliver R. Goodenough, ‘Defending the Imaginary to the Death?
: Free Trade, National Identity, and Canada’s Cultural Preoccupation’, (1998) 15 Arizona Journal of International Law and Comparative Law 203, 226.
12 Tania Voon, Cultural Products an d the World Trade Organization (Cambridge University Press,2007) 12.
13 Ibid.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Widiatedja Cultural Concern Under Trade and Investment Agreements...| 175 system under trade and investment agreements was established such as the dispute settlement body under the WTO (‘DSB WTO’) and investor-state dispute settlement (‘ISDS’).
Some countries then initiated trade and investment-related measures for securing what they have subjectively considered as local cultures.
However, these measures, according to the decision of judicial body, have conflicted with the movement of globalization as they would likely fall within the scope of ‘inefficient protectionism’ and contradict with the value of human rights in relation free speech and ideas’ access.14 This paper seeks to examine if the inclusion of cultural concern under trade and investment agreement is effective to reconcile the need of shielding culture and the spirit of free trade and free flows of investment.
This paper starts by explaining how the existing trade and investment agreements have integrated cultural concern in their provisions.
Next, it shows how particular countries have employed culturalrelated measures and how the judicial bodies have countered these measures in their decisions.
II.
LEGAL MATERIALS AND METHODS This paper used normative methodology, which departed from existing laws concerning trade and investment agreements.
It adopted the statute approach as it examines relevant legal framewrok in trade and investments.
Comparation on state practice were also adopted to gain appropriate recommendation on how cultural 14 Krista Boryskavich and Aaron Bowler, ‘Hollywood North: Tax Incentives and the Film Industry in Canada’ (2002) 2 Asper Review of International Business and Trade Law 25, 26.
15 Constitution of the United Nations Educational, Scientific and Cultural Organization, 4 UNTS 275; aspect may affect judicial bodies in delivering their decisions upon various cases.
Legal materials used in this paper include these following legal instruments: 1.
United Nations Educational, Scientific and Cultural Organization Convention 2.
Universal Declaration on Cultural Diversity 3.
United Nations Declaration on the Rights of Indigenous Peoples 4.
General Agreement on Tariffs and Trade 5.
Trade Related Intellectual Property Rights 6.
Trade-Related Investment Measures 7.
North American Free Trade Agreement 8.
Trans-Pacific Partnership Various cultural norms are also discussed towards the above mentioned legal instruments and examined whether cultural aspects have been included within those legal instruments III.
RESULTS AND DISCUSSIONS CULTURAL CONCERN UNDER TRADE AND INVESTMENT AGREEMENTS The Elusive Meaning of Culture International law has recognised the importance of culture and its diversity within society.
Specifically, the preamble of United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) constitution defines that “the wide diffusion of culture...are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfill in a spirit of mutual assistance and concern”.15 Besides, article 1 of Universal Declaration on Cultural 41 AJIL Supp.
1 (4 November 1946) the Preamble (‘UNESCO Constitution’).
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 176 | Widiatedja Cultural Concern Under Trade and Investment Agreements... Diversity (‘UDCD’) states that cultural diversity is “embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind.
As a source of exchange, innovation, and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature”.16 The acknowledgment is not only for culture and its diversity but also for a group of people that conserve its cultural identity.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) states that “[i]ndigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions”.17 Although its presence has broadly acknowledged, there is no varying meaning of culture.
This is due to a hugely complex fact which has diverse senses.
Raymond Williams (1976) even explains that culture can be categorised as one of the most complex words in the language of English.18 Low (1994) then revealed the challenges to find an intact culture’s definition.
Firstly, culture is a mobile concept as it adheres to a life’s reality.
Next, in some countries, there is a government’s trend to unscrupulously influence culture for myriad reasons.19 16 Universal Declaration on Cultural Diversity, UNESCO Res.
25, 31st Gen. Conference, UNESCO Doc.
31 C/25 (2 November 2001) art 1 (‘UDCD’).
17 United Nations Declaration on the Rights of Indigenous Peoples, G.A.
Res.
61/295, UN Doc.
A/RES/61/295, 13 September 2007, 46 ILM 1013 (2007), art 33 (‘UNDRIP’).
18 Raymond Williams, Keywords: A Vocabulary of Culture and Society (Oxford University Press, 1976) 76.
19 Setha M Low, ‘Cultural Conservation of Place’, in Mary Hufford (ed.
), Conserving Culture: A New Discourse on Heritage (University of Illinois Press, 1994) 66,67.
20 Universal Declaration on Cultural Diversity, UNESCO Res.
25, 31st Gen. Conference, UNESCO Doc.
31 C/25 (2 November 2001), the preamble (‘UDCD’).
UNESCO tried to define the term of culture in the Preamble of its UDCD by explaining that: “Culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions, and beliefs.”20 Eide (1995) then proposed three potential definition of culture, namely: (1) material factors of culture consisting of cultural services and goods; (2) immaterial factors of culture through the process of scientific formation or creative; and (3) anthropological factors of culture (such as the way of life).21 Cultural Concern under Trade and Investment Agreements Before explaining the cultural concern, this paper will explain the reason to combine the explanation of trade and investment agreements and not divide it.
Trade and investment are highly connected and thus could be illustrated as two sides of the same coin.22 Companies conduct cross-border trade to supply their foreign investment,23 and they invest abroad in bolstering their 21 Asbjørn Eide, ‘Cultural Rights as Individual Human Rights’, in Asbjørn Eide, Catarina Krause and Allan Rosas (eds.
), Economic, Social and Cultural Rights.
A Textbook (Martinus Nijhoff Publishers, 1995) 239, 230.
22 Debra P Steger, ‘International Trade and Investment: towards a Common Regime?’ in Roberto Echandi and Pierre Sauvé (eds), Prospects in International Investment Law and Policy (Cambridge University Press, 2013) 156, 159.
23 Nicholas DiMascio and Joost Pauwelyn, ‘Nondiscrimination in Trade and Investment Treaties: Worlds Apart or Two Sides of the Same Coin?’ (2008) 102 American Journal of International Law 48,49.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Widiatedja Cultural Concern Under Trade and Investment Agreements...| 177 trade.24 While investors produce and consume both goods and services, an open international trade system will provide a bright investment climate.25 the WTO has applied many rules covering not only trade but also investment as reflected in the General Agreement on Trade in Services (‘GATS’)26 and Trade-Related Investment Measures (‘TRIMS’).27 Besides, some preferential trade agreements, such as North American Free Trade Agreement (‘NAFTA’) and Trans-Pacific Partnership (‘TPP’) have also separately regulated investment and investment arbitration.
Contrarily, trade became integrated into investment treaties.28 Some existing Bilateral Investment Treaties (BITs) forbid trade-related performance requirements, especially provision to stipulate the use of local products and technology transfer.29 The General Agreement on Tariffs and Trade (‘GATT’) has incorporated provisions, enabling states to enforce or maintain internal quantitative regulation in related to uncovered movies as regulated under Article IV.30 However, this provision restricts the 24 Jeswald W Salacuse, The Three Laws of International Investment: National, Contractual, and International Frameworks for Foreign Capital (Oxford University Press, 2013) 23.
25 Erik Denters, ‘Preferential Trade and Investment Treaties’ in Tarcisio Gazzini and Eric De Brabandere (eds), International Investment Law: The Sources of Rights and Obligations (Martinus Nijhoff Publishers, 2012) 49, 51.
26 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1B (‘General Agreement on Trade in Services’) art I(2)(c) 27 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Trade-Related Investment Measures’) art 1.
28 Joost Pauwelyn, ‘The Re-Convergence of International Trade and Investment Law: Causes, Questions, and Reform’ (2014) 108 American Society of International Law Proceeding 255.
29 Ibid.
measure, through screen quotas which some conditions, including the minimum broadcasting time of national/ local films, the maximum broadcasting time of foreign-films in a year and a particular theatre.31 The general exception under the GATT has also spanned cultural concern.
Article XX (f) reflects how the exception also spanned measures for securing what has been classified as nationwide assets of creative, remarkable or archeologically value.32 Some conditions to be entitled for this exception are explained in the first paragraph (or chapeau) of Article XX by saying that measures are not employed in a way that can create a tool of ‘arbitrary or unjustifiable discrimination’ between states wherein the similar situations prevail, or a ‘disguised restriction’ on international trade.33 Although general exceptions in Article XX GATT along with Article XIV GATS are not systematically aimed at enabling cultural measures, some cultural regulation might be encompassed.
Specifically, the term ‘public morals’ has been linked to cultural value through DSB WTO decision.
‘Public Morals’ 30 The General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 55 UNTS 187 (entered into force 1 January 1948) art IV (‘GATT 1947’).
31 GATT 1947 art IV stated that: (a) Screen quotas may require the exhibition of cinematograph films of national origin during a specified minimum proportion of the total screen time actually utilized, over a specified period of not less than one year, in the commercial exhibition of all films of whatever origin, and shall be computed on the basis of screen time per theatre per year or the equivalent thereof; (b) With the exception of screen time reserved for films of national origin under a screen quota, screen time including that released by administrative action from screen time reserved for films of national origin, shall not be allocated formally or in effect among sources of supply.
32 GATT 1947 art XX (f).
33 GATT 1947 art XX.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 178 | Widiatedja Cultural Concern Under Trade and Investment Agreements... has recently been construed as representing values of true and wrong manner maintained by or on behalf of a public or state34 that was employed based on a supple and dynamic method.35 It was because public morals could differ in space and time, relying upon a series of aspects, including religious, cultural, social, and ethical values.36 Trade Related Intellectual Property Rights (‘TRIPs’) has also included cultural concern.
Article 22(1) show, while explaining geographical indications, culture is closely linked to the quality, image and other typical of the good.37 Next, the treaty of the European Community has included cultural concern.
Under Article 87(1) of this treaty, it is a violation to provide assistance by member countries that ultimately misleads rivalry by supporting the manufacture of particular goods (such as subsidies).38 Nonetheless, there has been an exemption for this ban as regulated under Article 87(3)(d) that explains if an assistance for promoting culture wherein such assistance does not impact trade’s competition to an extent that is contradict to the public interest.39 In addition, Article 151 shows that the Community shall give a contribution to the colouring of the cultures, while honouring their national and regional difference and 34 Panel Report, United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, adopted 20 April 2005 [6.465] (‘US-Gambling Panel Report’).
35 US-Gambling Panel Report [6.479].
36 US-Gambling Panel Report [6.461].
37 Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A, art 22(1) stated that: ‘Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’(‘Agreement on Trade-Related Investment Measures’).
simultaneously delivering the prevailing cultural heritage to the front.40 North America Free Trade Agreements (‘NAFTA’) also covers a restricted exemption for ‘cultural industries’.
This FTA then defines cultural industries means individuals or groups involved in sale, distribution and production, among other things, books, newspapers, films, video music recording and radio communications.41 The ASEAN–Australia–New Zealand Free Trade Agreement (‘AANZFTA’) in its general provisions and exceptions also covers cultural concern, especially related to the existence of indigenous group in New Zealand.
Specifically, chapter 15 Article 5 allows the government of New Zealand to impose measure when it is necessary to give a more favourable treatment to Maori tribe, covering the compliance of its responsibility under the Treaty of Waitangi.42 This measure, nevertheless, must not be employed as a tool of ‘arbitrary or unjustified discrimination’ against individuals of the other member states of this treaty.43 Some bilateral FTAs have also put cultural concern in their provisions.
In ChileUSA FTA, The national television of Chile or ‘Consejo Nacional de Televisio´n may stipulate that all programs relay through 38 Consolidated Version of the Treaty Establishing the European Community, 2002 O.J.
(C325/33) 24 December 2002, art 87(1) (‘EC Treaty’).
39 EC Treaty art.
87(3)(d) 40 EC Treaty art.151.
41 North American Free Trade Agreement, signed 17 December 1992, [1994] CTS 2 (entered into force 1 January 1994), art 2107 (‘NAFTA’).
42 Agreement Establishing the ASEAN–Australia– New Zealand Free Trade Area, opened for signature 27 February 2009, [2010] ATS 1(entered into force 1 January 2010) Chapter 15, art 5 (‘ASEAN–Australia–New Zealand FTA’).
43 Ibid.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Widiatedja Cultural Concern Under Trade and Investment Agreements...| 179 Chile’s public television channels cover up to 40 percent of Chilean production.’44 Similarly in Australia-USA FTA, Australia has the right to require minimum local content quotas on television at a specific level.45 It expressly states that Telstra (National Television) can be owned by foreigner with the maximum ownership is 35 per cent.
The chair person and directors of this company must be Australian and the head office of Telstra must be in Australia.46 Finally, the International Finance Corporation (‘IFC’) through its performance standard stipulates all firms that propose loans from the IFC should appreciate indigenous groups and cultural heritage.47 It states that IFC will avoid project that may adversely affect cultural heritage and indigenous groups.48 Similarly, the Multilateral Investment Guarantee Agency (‘MIGA’) through its performance standards number seven and eight also encouraged foreign investment that respected indigenous peoples and cultural heritage.49 THE APPLICATION OF CULTURAL CONCERN Countries’ Measures in relation to Cultural Concern The incorporation of cultural concern under trade and investment agreements has 44 Free Trade Agreement between the Government of the Republic of Chile and the Government of the United States of America, signed 6 June 2003 (entered into force 1 January 2004) annex I3 (Chile) (‘Chile-USA FTA’).
45 Free Trade Agreement between the Government of Australia and the Government of the United States of America, signed 18 May 2004 (entered into force 1 January 2005) annex I (‘Australia-USA FTA’).
46 Australia-USA FTA, annex 1-14.
47 International Finance Corporation, ‘Performance Standards on Environmental and Social Sustainability’ (1 January 2012) standard 7.
48 Ibid.
49 Nyoman Indra Juarsa and Yanuarda Yudo Persian, ‘Corporate Social Responsibility in International released wider opportunities for the governments to unilaterally impose culturalrelated measures to promote and protect their cultures, especially related to cultural goods and services.
These measures can be applied in many diverse practices.
This section will briefly discuss a number of such measures, showing how they have been employed by some particular countries.
The most popular common of culturalrelated measures is the limitations of market access, especially to secure what countries have regarded as cultural goods and services.
Mexico and Spain employed screen quotas for movies to limit the presence of foreign movies within their territories.50 China through its state-owned companies employed screen publications, such as books and newspapers, audio and video products as a means of anticipating those products will not contradict with China’s cultural traditions.51 Recently, China even conducted internet control through filtering and blocking mechanism, and initiating what has been called as self-censorship by internet customers through supervision and penal sanctions.52 Some countries also employed preventive measures to protect what they have assumed as cultural value or tradition.
Economic Law Persepctive’ (2015) 2(2) Brawijaya Law Journal 84,96.
50 Christoph Beat Graber, ‘Audiovisual Media and the Law of the WTO’ in Christoph Beat Graber, Michael Girsberger and Mira Nenova (eds.)
Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual (Schulthess, 2004) 15, 29.
51 See Panel Report, China Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009) [4.113-4.120] (‘China – Audiovisual).
52 Quynh-Dan Nguyen, ‘Error: Essay not Found: Comparing Censorship in China and South Korea (2016) 3(1) Brawijaya Law Journal 17, 20.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 180 | Widiatedja Cultural Concern Under Trade and Investment Agreements... Benin53 and Haiti54 constrained the importation of alcohol; Israel banned importation of all non-Kosher meat products;55 Brunei limited importation in certain meat products;56 Qatar prohibited importation of pork products;57 Taiwan banned importation of dog meat, and Tunisia prohibited the importation of swine products.58 Canada explicitly announces its ban on child pornography and materials considered indecent, traitorous, or treasonable.59 The limitation of foreign investment and ownership of cultural goods and services is the next cultural-related measures.
Most of measures are associated with broadcasting and news corporations for radio and television.
In the US, 45 per cent is the maximum ownership of single television operator in the broadcasting market.60 In the same way, France delimited the shares in broadcasting corporations to a maximum of 49 per cent notwithstanding foreign and domestic ownership.61 Australia had the right for imposing minimum local content quotas to 35 per cent on foreign-owned TVs.62 The subsidy, intellectual property rights, and tax are less common cultural related measures, but they are still employed by some countries or group of countries.
The 53 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Benin, WT/TPR/S/131 (24 May 2004) [42].
54 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Haiti, WT/TPR/S/99 (7 October 2003) [41].
55 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Israel, WT/TPR/S/58 (13 August 1999) [24].
56 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Brunei, WT/TPR/S/84 (27 April 2001) [43].
57 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Qatar, WT/TPR/S/144 ( 24 January 2005) [26].
58 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Tunisia, WT/TPR/S/152 Rev.1 (Oct.31, 2005) [39].
EU has implemented subsidy program for protecting and promoting domestic cultural services and goods.
Specifically, the Council of Europe initiated what has been called as ‘Eurimages fund’, providing grants and repayable credits for European coproductions of movies.63 In the French Code of Intellectual Property, the Government of French has the right to give an extra 25 per cent of the payment from private copying charges for protecting and promoting local entertainers or artistic creations.64 As regards to tax measures to encourage domestic cultural products, France obliged taxes on the income of broadcasting operators, the sale of movies tickets and video tapes for assisting domestic films’ production.65 JUDICIAL BODY DECISION OVER CULTURAL-RELATED MEASURES WTO Dispute Settlement Decision WTO dispute settlement system has been existing more than twenty-two years, adjudicating at least 405 disputes from 1 January 1995 to 22 August 2016.
In that period, it has been probably the most prolific of all international dispute settlement 59 WTO Secretariat, Report of the WTO Secretariat on the Trade Policy Review of Canada, WT/TPR/S/53 (19 November 1998) [46].
60 Federal Communications Commission, Code of Federal Regulations, Title 47 (47 C.F.R.
), § 73.3555(d)(1).
61 Alison James and Adam Dawtrey, ‘Oui are the World’ Variety (19 June 2000) 85.
62 Australia-USA FTA, annex 1.
63 See Council of Europe, Resolution (88)15 of 26 October 1988.
64 See French Code de la Propriété Intellectuelle, Act No.
2000-719, Art.
L. 321-9.
65 Mary E Footer, and Christoph Beat Graber, ‘Trade Liberalization and Cultural Policy' (2000) 3(1) Journal of International Economic Law 115, 125.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Widiatedja Cultural Concern Under Trade and Investment Agreements...| 181 practices.66 Some leading international scholars have positively assessed the existing of dispute settlement mechanism under the WTO.67 Unlike the GATT, the DSB has successfully initiated the accurate time limits throughout the dispute settlement mechanism.68 Lockhart and Voon (2005) presumed that appellate review in the WTO was well-operated, and scholars observed on the efficiency of appellate review that has led to the progression of international trade law.69 In the same way, Guzman and Pauwelyn (2012) stated that the dispute settlement mechanism was one of the most exceptional aspects of the WTO.70 Developing countries have often utilised the WTO dispute settlement system.
Brazil (thirty complaints), India (twentythree complaints), Argentina and Mexico (twenty-one complaints), and Indonesia (ten complaints) are among repeated parties of the system.71 Moreover, Developing countries successfully defeated economic superpowers countries in some WTO cases.
In particular, US – Underwear, a complaint by Costa Rica, US — Clove Cigarettes, a complaint by Indonesia and even more so US-Gambling, a 66 Peter Van den Bossche, The Law and Policy of the World Trade Organization (Cambridge University Press, 2010) 169.
67 Thomas A Zimmermann, ‘WTO Dispute Settlement at Ten: Evolution, Experiences & Evaluation,’ (2005) 60 The Swiss Review of International Economic Relations 27,53.
68 Ibid.
69 John Lockhart and Tania Voon, ‘Review of the Appellate Review in the WTO Dispute Settlement System’ (2005) 6 Melbourne Journal of International Law 474,476.
70 Andrew T Guzman and Joost HB Pauwelyn, International Trade Law (Wolters Kluwer 2nd ed, 2012) 127, See also Nicolette Butler, ‘In Search of a Model for the Reform of International Investment Dispute Resolution: An Analysis of Existing International and Regional Dispute Settlement Mechanisms’ in Jean E Kalicki and Anna Joubin-Bret (eds), Reshaping the InvestorState Dispute Settlement System:Journeys for the 21st Century (Nijhoff, 2015) 353,355. complaint by Antigua which has a population only 67,000.
Under the WTO systems, a Member could impose a limitation or discriminatory measures in associated with cultural products for preserving and promoting what has been classified as local culture or to shield its producers.72 The scope of cultural value of a particular product may span not only the product’s nature, or who make it, but also how it is made or consumed or how it affects local identity.73 The panel and the Appellate Body WTO then scrutinised if those measures are consistent with what has been called as the law of the WTO.
It is often claimed that WTO law typically limits the ability of WTO members to impose measures for protecting and promoting domestic cultural products,74as the following WTO jurisprudence show.
In Japan – Leather II (US), a Japanese law stipulated leather importers to acquire import licenses and to comply with import quotas,75 thereby securing the jobs of a certain minority and indigenous population, that is the Dowa People.76 Japan argued that the Dowa people were in an inferior position 71 This can be traced through Map of Disputes Between WTO Members, <https://www.wto.org/english/tratop_e/dispu_e/di spu_maps_e.htm> 72 Tomer Broude, ‘Taking “Trade and Culture’’ Seriously: Geographical Indications and Cultural Protection in WTO Law’ (2005) 26(4) University of Pennsylvania Journal of International Economic Law 623, 638.
73 Tania Voon, Cultural Products and the World Trade Organization (Cambridge University Press, 2007) 11 74 See Ivan Bernier, ‘Trade and Culture’ in Patrick FJ Macrory, Arthur E Appleton, and Michael G Plummer (eds.)
The World Trade Organization: Legal, Economic and Political Analysis (Springer, 2005), 790.
75 Panel Report, Japanese Measures on Imports of Leather, L/5623 31S/94 (15/16 May 1984) [8] (‘Japan-Leather II Panel Report’) 76 Japan-Leather II Panel Report [15], [17]–[18].
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 182 | Widiatedja Cultural Concern Under Trade and Investment Agreements... economically, socially, and culturally due to discrimination based on a class system.77 However, the panel invalidated Japan’s measure because it had impaired or nullified benefits to other members, that is the US.78 Furthermore, in Japan – Alcoholic Beverages II, Japan insisted its lower taxes on “shochu” compare to whiskey, cognac, and white spirits,79 showing that Japanese consumers culturally assumed shochu as different from those alcohol drinks, and consumed it in different ways.80 The Panel and Appellate Body then prohibited this measure because it fell within the scope of ‘internal taxation’ so that it is inconsistent with GATT Article III:2.81 In China – Audiovisual, China through its state-owned corporations, screen publications of newspapers, books, audio and video products, such as games, CDs, DVDs and music transferring services.82 China claimed that its system was vital as a preventive measure for reassuring that those products did not have any violence or pornography materials that contradicted with China’s cultural value.83 Both the Panel and the Appellate Body annulled this measure because it caused discriminatory manners wherein China required the trade of importing publications must be operated by wholly State-owned firms and negated 77 Japan-Leather II Panel Report [21]–[22].
78 Japan-Leather II Panel Report [44].
79 Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, (1 November 1996) 17 (‘Japan – Taxes on Alcoholic Beverages AB Report’).
80 Panel Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/R, WT/DS10/R, WT/DS11/R (1 November 1996) [4.54] (‘Japan – Taxes on Alcoholic Beverages Panel Report’), 81 Japan – Taxes on Alcoholic Beverages AB Report 32.
82 Panel Report, China Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (12 August 2009) (‘China-Audiovisual Panel Report’).
foreign firms from being permitted as publication importers so that this measure did not fall within the scope of general exception under GATT Article XX.84 In EC –Seal Products, the EU prohibited the importation and advertising of seal products (EU Seal Regime) to nurture the EU's moral concerns about the prosperity of seals.
85 This measure was harshly contested by Canada where sealing was a vital cultural practice for its indigenous Inuit communities, as well as by Norway.86 The result of this measure discriminatory benefited seal products reaped by Greenland's Inuit communities over Canadian Inuit communities (that still employed cultural practice) from the way this measure was undertaken.87 In its final report, the Appellate Body confirmed that the EU Seal Regime was illegal as it had been employed in discriminatory means according to GATT Article XX.88 In the first three cases, both the Panel and the Appellate Body significantly limited the ability of WTO members to impose measures about the cultural concern.
All cultural-related measures were eventually considered inconsistent with the law of the WTO.
In EC – Seal Products, however, the Panel and the Appellate Body acknowledged the right of WTO member states to preserve 83 China-Audiovisual Panel Report [4.113-4.120].
84 China-Audiovisual Panel Report [4.113-4.120].
85 Appellate Body Report, European Communities Measures Prohibiting the Importation and Marketing of Seal Products WT/DS400/AB/R, WT/DS401/AB/R (22 May 2014) 24 (EC Seal Products AB Report).
86 Panel Report, European Communities Measures Prohibiting the Importation and Marketing of Seal Products, WTO Docs WT/DS400/R, WT/DS401R (25 November 2013) [7.303-315] (EC Seal Products Panel Report).
87 EC Seal Products Panel Report [7.460].
88 EC Seal Products Panel Report [5.320, 5.3375.338].
https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS8/AB/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS8/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS10/R&Language=English&Context=ScriptedSearches&languageUIChanged=true https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?DataSource=Cat&query=@Symbol=WT/DS11/R&Language=English&Context=ScriptedSearches&languageUIChanged=true Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Widiatedja Cultural Concern Under Trade and Investment Agreements...| 183 the cultural practice (that is sealing activities) of indigenous groups.
From this decision, it can be inferred that this cultural practice should be conserved, and if any measure will harm or discriminate such practice, the measure should be invalidated.
Investor-State Arbitration Decision The existence of an autonomous investor-state dispute settlement (‘ISDS’) mechanism will be crucial to reassure the responsibility of government for any violations of commitments they have done.89 Moreover, if a host country provides impartial and independent dispute settlement mechanism, the country will be more appealing for foreign investment.90 Based on those reasons, the use of ISDS has been buoyant since twenty years ago, following the rapid growth of FDI.91 In practice, there are two types of international arbitration.
Firstly, ad hoc arbitration, consisting of an arbitral panel and procedure that is agreed between the investor and the host country.92 Next, the application institutional system of international arbitration, such as ICSID to settle the investor-state dispute.93 Under ISDS, there has been a debate over cultural-related measures of the host country and foreign investors’ interest.
Foreign investors brought a lawsuit before 89 Stephan W. Schill, ‘Private Enforcement of International Investment Law: Why We Need Investor Standing in BIT Dispute Settlement’ in Michael Waibel, et al (eds), The Backlash Against Investment Arbitration (Kluwer, 2010) 29,31.
90 Peter Muchlinski, ‘Policy Issues’ in Peter Muchlinski, Federico Ortino, and Christoph Schreuer (eds), The Oxford Handbook of International Investment Law (Oxord University Press,2008) 3, 41.
91 Jeff Waincymer,’Settlement of Disputes Under Free Trade Agreements’ in Sisira Jayasuria, Donald MacLaren and Gary Magee (eds), Negotiating a Preferential Trading Agreement: Issues, Constraints and Practical Options, (Edward Elgar, 2009) 196,197.
92 Peter Muchlinski, above n 88, 42.
ISDS, arguing host countries’ measure adversely affected their investment, thereby qualifying to ‘indirect expropriation’ or other relevant breaches of investment treaties such as lack of fair and equitable treatment and discriminatory conducts.94 However, a host country claims that its measure is crucial for protecting cultural heritage site and the life of indigenous groups.95 Some cases have discussed the issue as to whether cultural-related measures intended at guarding cultural heritage may be considered to be an indirect expropriation or a measure equal to expropriation.
In Glamis v. the US, a mining company from Canada intended to mine gold in the area that considered being a holy place for indigenous groups (the Quechan Indian tribe).96 Even though this place is not listed on the World Heritage list, its cultural heritage and tradition are equal to Mecca or Jerusalem.97 The Federal Government then denied approving this project, taking into account the potential environmental and cultural damage caused by mining activities.98 The tribunal eventually buttressed the decision from the US Federal Government.
It reasoned that mining actions might lead to the burial of more items, leading to greater environmental damage.99 Interestingly, the Tribunal also particularly referred to Article 93 Ibid.
94 Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge University Press,2014) 93.
95 Martina Guidi, ‘The Protection of Indigenous Peoples’ Concerns in World Bank-Funded Projects’ in Giorgio Sacerdoti et al (eds), General Interests of Host States in International Investment Law (Cambridge University Press, 2014) 237, 238 96 Glamis Gold Ltd v. United States of America (award) (ICSID Arbitral Tribunal, 8 June 2009)[103–8] (‘Glamis v. US’) 97 Glamis v. US [107].
98 Glamis v. US [107].
99 Glamis v. US [687].
http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Sisira%20Jayasuria http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Donald%20MacLaren http://www.elgaronline.com.ezp.lib.unimelb.edu.au/search?f_0=author&q_0=Gary%20Magee Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 184 | Widiatedja Cultural Concern Under Trade and Investment Agreements... 12 of the World Heritage Convention that requires countries to guard their cultural heritage even if it is not listed on the World Heritage List.100 Some ongoing cases also discussed the tautness between cultural related measures and the investors’ interest.
In 2011, Peru confronted ISDS claim over the planned development of property in a protected historical site.
In 1995, investors obtained a permit to build a property in the area that was classified as a protected historical site.101 In 2007, however, the National Institute of Culture enacted a regulation, banning any form of construction on that site.102 In 2016, a Canadian miner brought a lawsuit under ICSID against the government of Romania.103 The Romanian government refused to issue a permit over notorious mining project (the Roşia Montană project) because the location of this project was on the list of ‘tentative-list of world cultural heritage site.
104 The more interesting case involved the government of Mauritius and British Investor in 2016.105Investor intended to build an integrated tourism projects, including hotels and villas at Le Morne in Mauritius’ west coast.106 This location was on the list of World Heritage sites in 2008.107 Investor then claimed that the government of Mauritius deceived the actual situation of the land at Le Morne.108 The land was mostly private100 Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (Cambridge University Press,2014) 118.
101 Luke E Peterson, ‘New Government in Peru Confronts Recent Arbitration Loss and New Claims by Foreign Investors in Electricity Transmission, Construction, and Port Sectors’, (Investment Arbitration Reporter, 4 August 2011).
102 Ibid.
103 IA Reporter, ‘Gabriel Resources Hails Romania’s Willingness to Re-run a Contested Tax Audit, But Complains of Other Unhelpful Measures Including Bid to Designate Mining Area as World Heritage owned instead of state-owned so that UNESCO could deny Mauritius’ request to put Le Morne as World Heritage sites.
109 In 2017, Dutch Investor brought a lawsuit against the Government of Croatia over the development of resort on Dubrovnik.
110 Because this area is on the list of World Heritage site, UNESCO has suggested some changes and limitations on this project for protecting this site, and investors has complied with all of this stipulation.
111 The Croatian government, however, still refused this project following the local court ruling on the environmental permit.112 IV.
CONCLUSIONS AND SUGGESTIONS There has been an apprehension over the hostile impact of globalisation on local culture.
Trade and investment agreements have included cultural concern in their provisions.
Employing these provisions, countries initiated trade and investmentrelated measures for protecting what they have regarded as cultural traditions and values.
The integration of cultural fear has led to a wide diversity of cultural-related measures such as market access’ restrictions, subsidy, tax, intellectual property rights, and the restriction of foreign-owned corporations.
The judicial body then replied some of countries’ cultural related measures.
Under the WTO, both the Panel and the Appellate Body considerably restricted the Site’ (Investment Arbitration Reporter, 27 September 2016) 104 Ibid.
105 Ibid.
106 Ibid.
107 Ibid.
108 Ibid.
109 Ibid.
110 Jarrod Hepburn, ‘Croatia Faces New Claim at ICSID by Elitech BV and Razvoj Golf Doo Over Golf Resort Development’ (Investment Arbitration Reporter, 7 September 2017).
111 Ibid.
112 Ibid.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Widiatedja Cultural Concern Under Trade and Investment Agreements...| 185 ability of WTO members to impose measures in relation to cultural concern.
In EC – Seal Products, however, the Panel and the Appellate Body admitted the right of WTO members to preserve the cultural tradition (that is sealing actions) of indigenous groups.
Under ISDS, the tribunal has explicitly acknowledged the right of host country to impose cultural-related measures for protecting what has been classified as cultural heritage sites.
As a result, the decision of judicial body, to some extent, has been effective to secure the objective of cultural concern under trade and investment agreements, especially to prevent disguise or inefficient protectionism, and to acknowledge the right of countries to protect or promote their cultural values and heritage.
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170 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.04 Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution Based on Constitutional Interpretation M. Reza Winataa, Zaka Firma Adityab aCenter for Research and Case Analyze Constitutional Court of the Republic of Indonesia Email : mreza.winata@gmail.com b Center for Research and Case Analyze Constitutional Court of the Republic of Indonesia Email: zaka.firma@mkri.id Submitted : 2019-03-12 | Accepted : 2019-09-16 Abstract: Hyper-regulation and disharmonization of regulations is a serious challenge in Indonesia.
Ministry of Law and Human Right make a breakthrough stipulates regulation on Regulatory Dispute Resolution through Non-litigation.
This mechanism is unique because commonly alternative dispute resolution (ADR) used in civil law however, this instrument exercised in constitutional law.
There are two research questions: First, what are the typical characteristics of non-litigation regulatory dispute resolution on Indonesia norm harmonization system; Second, how is the legality of non-litigation regulatory dispute resolution, mainly based on constitutional perspective.
Author use statute, conceptual, and historical approach as research methods.
The research result found the typical characteristics of non-litigation regulatory dispute resolution that most distinguish from litigation resolution: the resolution institution is Ministry under the executive branch, the final results limited only give a recommendation, and the nature of recommendation not final and binding.
Next, the legality of the authority found even though only regulated at the level of Ministerial of Law and Human Rights Regulation.
However, in the analysis of constitutional interpretation methods shows clearly this authority is legally based (1) Textual interpretation; (2) Structural interpretation; (3) Prudential interpretation; and (4) Consensus interpretation.
Although, by nature, this process limited to resolve the conflict between norms and overregulation because it is voluntary and the result only recommendation, but the important thing is it can open alternative resolution to stimulate the harmonization and streamlining of regulations.
Keywords: authority, non-litigation, alternative dispute resolution, regulatory dispute, ministry of law and human rights.
I.
INTRODUCTION Since the founding of the Unitary State of the Republic of Indonesia through the proclamation of independence, enactment 1945 Constitution of the Republic of Indonesia (1945 Constitution) as the constitution, the system of legal norms of mailto:mreza.winata@gmail.com mailto:zaka.firma@mkri.id Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... | 171 Indonesia formed.
1 According to Hans Kelsen and Hans Nawiaski, the laws and regulations are hierarchical systems of the norm, so the legal order is not a coordinated system of norms that have the same position, however a hierarchy of legal norms with various levels.2 As a country that adopted the civil law system, the existence of formal law (written law) gets the most important place in Indonesia.
Because one of the characteristics of the civil law system that is laws and regulations which systematically arranged and codified have binding power to society.
However, there are challenges in this system, the potency for disharmony among laws and regulations.
According to Ricard Susskind, disharmony in this regulation resulted in hyper-regulation.
Richard Susskind further emphasized that: “By that, I meant we are all governed today by a body of rules and laws that are so complex and so large in the extent that no one can pretend to have mastery of them all.
I argued then that hyper-regulation means not that there is too much law, by some objective standard, but that there is too much law given our current methods of managing it.”3 Over time, with the influence of the civil law system that persists to this day, Indonesia has experienced a similar problem, namely the swelling of the number of uncontrolled regulations or commonly called hyper-regulation / overregulation, this problem gives a negative impact on the legal 1 Maria Farida Indrati, Ilmu PerundangUndangan: Dasar dan Cara Pembentukannya, (Yogjakarta: Kanisius, 2007), 39.
2 Hans Kelsen, General Theory of Law and State, (London: Oxford University Press, 1949), 5.
3 Richard Susskind, ‘Legal Informatics: A Personal Appraisal Of Context and Progress’ (2010) 1, European Journal of Law and Technology, 90-92.
4 Detik.com, ‘Seskab: Obesitas Regulasi di Indonesia Tumpang Tindih’ https://news.detik.com/berita/d-4320699/seskabsystem because triggered conflict or disharmonization of law.
Cabinet Secretary said the overregulated does not create legal order and obedience instead creates overlaps and conflicts with one another.
President Joko Widodo also instructs all ministries/institutions / local governments must begin to stop the habit of forming regulation that is not needed to reduce the symptoms of hyper-regulation.
4 However, the government policy was not yet fully effective, most ministries and institutions are still ambitious to form regulation.
According to the Ministry of Law and Human Rights, as of February 2019, there were approximately 51,113 laws and regulations spread across various agencies.
For example, the Ministry of Home Affairs, in 2015 registered 81 Ministerial Regulations, apparently in 2016 has formed 112 Ministerial Regulations.
The Ministry of Trade in 2016 has established 88 Ministerial Regulations, until mid-2017 (June) alone has formed 42 Ministerial Regulations.
5 This shows that there has not been a significant change in the quantity of regulation established.
Based on that data, the Minister of Home Affairs said that the number of Indonesian legislation could have included in the world record category.
6 In 2016, the government responded to this condition by cancelled 3,143 Regional Regulations which was considered hamper investment and ease obesitas-regulasi-di-indonesia-sering-tumpangtindih 5 Data is taken from the official website of the Ministry of Law and Human Rights, http://peraturan.go.id/.
6 Detik.com, ‘Cetak Rekor RI Jadi Negara Hukum Dengan Aturan Paling Banyak di Dunia https://finance.detik.com/berita-ekonomi-bisnis/d3344758/cetak-rekor-ri-jadi-negara-hukumdengan-aturan-paling-banyak-di-dunia https://news.detik.com/berita/d-4320699/seskab-obesitas-regulasi-di-indonesia-sering-tumpang-tindih https://news.detik.com/berita/d-4320699/seskab-obesitas-regulasi-di-indonesia-sering-tumpang-tindih https://news.detik.com/berita/d-4320699/seskab-obesitas-regulasi-di-indonesia-sering-tumpang-tindih https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 172 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... of doing business.
7 However, the government agenda to continue to reduce regulation have constrained by Constitutional Court Decision Number 137/PUU-XIII/2015 and Number 56/PUUXIV/2016 which revokes the authority of government to conduct an executive review to Regional Regulations.
To solve this problem, the government through the Ministry of Law and Human Rights issued a policy in form of Ministerial of Law and Human Rights Regulation Noumber 32 the Year 2017 on Regulatory Dispute Resolution through Non-litigation (Ministerial of Law Regulation on Regulatory Dispute Resolution).
The establishment of this regulation is motivated by the existence of conflicting laws and regulations both vertically and horizontally which causes conflicts of legal norms and conflicts of authority between ministries / agencies and local governments which at the end cause injustice to the community and business actors, and hamper the investment climate, business, and national and regional economic activities in Indonesia as confirmed in Article 2 paragraph (1) of this Regulation.8 Interestingly, the establishment Ministerial of Law Regulation on Regulatory Dispute Resolution raises discourse in the community, because all this time the dispute resolution of regulation should have been through litigation through the Supreme Court 7 Kompas.com, ‘Jokowi: 3143 Perda Bermasalah TelahDibatalkan‘ https://nasional.kompas.com/re ad/2016/06/13/17215521/jokowi.3.143.perda.ber masalah.telah.dibatalkan 8 Article 2 paragraph (1) Permenkumham Number 32 Year 2017 affirms that conflicting legislation both vertically and horizontally which causes conflicts of legal norms, conflicts of authority between ministries / institutions and local governments, lead to injustice for the community and business actors, inhibiting the investment climate, business, and national and regional economic activities can be submitted a request for and the Constitutional Court.
Constitutionally, the authority to examine regulation under the law on legislation is under the authority of the Supreme Court,9 while to review the law against the Constitution (judicial/constitutional review) is the authority of the Constitutional Court.10 This constitutional authority is also regulated in sectoral laws namely the Judicial Power Act, the Supreme Court Law, the Constitutional Court Law and the Law on the Regulation Establishment.
Therefore, the focus of the discussion in this paper is to answer the research question: First, what are typical characteristics of non-litigation regulatory dispute resolution on Indonesia norm harmonization system; Second, the legality of non-litigation regulatory dispute resolution, especially based on constitutional perspective.
This discussion will be very interesting because on the one hand, the government wants to immediately resolve disharmony and overregulation problems through nonlitigation channels which are considered faster however, this mechanism is not have regulated in higher regulations.
Then, this study is unique because commonly alternative dispute resolution (ADR) used in civil law, but this time in constitutional law.
settlement of disputes through non-litigation channels.
9 Article 24A Paragraph (1) of the 1945 Constitution states that the Supreme Court has the authority to adjudicate at the appellate level, review legislation under the law against the law, and have other powers granted by law.
10 Article 24C Paragraph (1) of the 1945 Constitution affirms that the Constitutional Court has the authority to adjudicate at the first and last levels whose decisions are final to examine the law against the constitution.
https://nasional.kompas.com/read/2016/06/13/17215521/jokowi.3.143.perda.bermasalah.telah.dibatalkan https://nasional.kompas.com/read/2016/06/13/17215521/jokowi.3.143.perda.bermasalah.telah.dibatalkan https://nasional.kompas.com/read/2016/06/13/17215521/jokowi.3.143.perda.bermasalah.telah.dibatalkan Brawijaya Law Journal Vol.
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LEGAL MATERIALS AND METHODS This paper uses a normative juridical method.
According to Peter Mahmud Marzuki, in legal research, there are generally known several research approaches namely: statute approach, conceptual approach, case approach, comparative approach and historical approach.
This paper uses a statute approach, comparative approach and historical approach.
11 The Author uses three approaches to analyze the issue and solve the research questions.
First, statute approach is carried out by examining all laws and regulations relating to the issue under review, namely laws and regulations relating to legal dispute resolution, among others: 1945 Constitution, Law on Regulations Establishment, Law on Constitutional Court, Law on Supreme Court, Law on Judicial Power, Law on State Ministry, Law on Regulations Establishment, Presidential Regulation on Ministry of Law and Human Rights, Presidential Regulation on Implementation of Law on Regulations Establishment, and Ministerial of Law and Human Rights Regulation on Regulatory Dispute Resolution.
Second, the historical approach relating to the legal history of the resolution of regulatory disputes in Indonesia.
Third, the conceptual approach use concept about alternative dispute resolution (ADR), hierarchy of norm, and constitutional interpretation methods.
11 Peter Mahmud Marzuki, Penelitian Hukum (Jakarta: Kencana Media Group, 2014), 93.
12 The term “legislative review” is equated with political review, lihat H.A.S.
Natabaya, Sistem III.
RESULT AND DISCUSSION CHARACTERISTIC OF NONLITIGATION REGULATORY DISPUTE RESOLUTION ON NORM HARMONIZATION SYSTEM This part will examine the legal history of regulatory dispute resolution on norm harmonization system in Indonesia.
Then, compare the regulation between litigation and non-litigation dispute resolution to discover the typical characteristic nonlitigation dispute resolution based on the concept of alternative dispute resolution (ADR).
a.
Legal History of Regulatory Dispute Resolution in Indonesia The term to review harmonization between laws and regulations can be divided based on the subjects who conduct the review, the object of review, and the time of review.
From subjects who conduct a review, it can review by a judge (toetsingsrecht van de rechter or judicial review), review by the legislature (legislative review or political review, and review by the executive (executive review).
12 Interestingly, in Indonesia practice, adopted three models of that review.
Review by judge (toetsingsrecht van de rechter or judicial review) is regulated both before and after the amendment to the 1945 Constitution.
The authority to review the validity of laws and regulations against 1945 Constitution, was first regulated in Act Number 14 of 1970 on Basic Provisions of Judicial Power, which regulates the reviewing of laws and regulations under the Act against Law which is the authority of the Peraturan Perundang-undangan Indonesia, (Jakarta: General Secretary of Constitutional Court of Indonesia, 2006), 187.
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After the amendment to the 1945 Constitution, the authority to review regulation remains the authority of the Supreme Court, while the reviewing of laws against the Constitution constitutes the authority of the Constitutional Court.
Reviewing the law by the legislature (legislative review) is carried out in the capacity as the institution that forms and discusses and approves the Law (together with the President).
The reason why the Supreme Court has the authority to examine only the laws and regulations under the Act on the Law before the amendment to the 1945 Constitution, according to Padmo Wahjono, is based on the idea that the Law is a maximum juridical construction to reflect the highest power of the people, preferably reviewed/replaced/ amended by the authority to make it, namely the MPR based on state practices that have ever been applied.13 Before the amendment, the review of Law against the Constitution was implemented by the People's Consultative Assembly which stipulated in Decree Number III/ MPR/2000 concerning the Source of Law and Order of the Laws.
The constitutional practise in question is stipulated by the Decree of the Republic of Indonesia MPRS Number XIX/MPRS/1966 concerning the Review of State Legislative Products outside of the Provisional People's Consultative Assembly Products that are following with the 1945 Constitution.
Then, review by the executive (executive review) is in reviewing local Regulations (Perda).
To implement regional government, the regional government organizers (regional government and DPRD) form a Regional Regulation, which will be 13 Padmo Wahjono, Indonesia Negara Berdasarkan atas Hukum, (Jakarta: Ghalia Indonesia, 1986), 15. determined by the Regional Head after obtaining approval from the DPRD.
Based on Article 136 of Act Number 32 the Year 2004 concerning Regional Government, Regional Regulations are prohibited from contradicting public interests and/or higher legislation.
Based on Article 145 of Act Number 32 the Year 2004 concerning Regional Government, the Government can cancel the Regional Regulation which is contrary to the public interest and/or higher legislation, and the decision to cancel the Perda is stipulated in the Presidential Regulation.
The authority to the Constitutional Court to review laws against the 1945 Constitution have regulated in Article 24C paragraph (1) and (2) of the 1945 Constitution.
The object reviewed is the law.
The applicant is a citizen, legal entity and customary law community unit whose constitutional rights feel disadvantaged due to the enactment of the law.
Settlement time is not limited, but based on the 2018 annual report, the Constitutional Court decides on average cases within 3.5 months.
The verdict can be accepted, rejected either partially or completely.
Whereas the Nature of Decision is final and binding.
The authority to review legislation under the Act against the Law is given to the Supreme Court, as explained in Article 24A paragraph (1) of the third amendment to the 1945 Constitution which states that the Supreme Court has the authority to adjudicate at the appellate level, review legislation under the law on the Law, and have other authority given by the Act.
The object being reviewed is legislation under the law against the law.
The applicant is a citizen, legal entity and customary law community Brawijaya Law Journal Vol.
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The time for judicial review dispute resolution in the Supreme Court is limited to 14 days and the decision is final.
However, along with the development of the constitutional practice of the separation of reviewing of statutory regulations both in the Constitutional Court and in the Supreme Court as stipulated in article 24A paragraph (1), the 1945 Constitution raises weaknesses and problems in the aspects of regulation and implementation.
Therefore, it is very important to carry out a comprehensive evaluation of both the regulatory and implementation aspects regarding the reviewing of the Law on the 1945 Constitution in the Constitutional Court, as well as the reviewing of laws and regulations under the Law on the Law in the Supreme Court.
In its development, the reviewing of legislation by a judiciary was also inseparable from the thinking of Hans Kelsen in 1920 who had the idea of forming a constitutional special court in Austria, the idea of Hans Kelsen then became the beginning of the birth of the world's first constitutional court and is now widely followed by many countries including in Indonesia, which aims to guard and maintain the constitution.
A different thing happened in Indonesia, when the Indonesian constitution (framers of the constitution) have compiled in the 1945 Constitution, the idea of constitutional reviewing had been debated in the session of the BPUPKI (Workers' Agency for the Preparation of Independence of Indonesia).
Mr Moh.
Yamin proposed that there be a mechanism for reviewing the validity of the contents of the Act on the constitution, adat and sharia by the highest judicial institutions.
In addition to ambitious ministries/ institutions in shaping laws and regulations that are not really needed, the causes of hyper-regulation are also due to the breadth of Article 8 paragraph (1) of Act Number 12 of 2011 concerning the establishment of legislation that classifies the regulations of certain institutions actually does not fulfil the qualification of laws and regulations as part of the type of legislation.
Article 8 paragraph (1) of Act 12/2011 regulates the types of laws and regulations other than those stipulated in Article 7 paragraph (1) covering regulations stipulated by the People's Consultative Assembly, House of Representatives, Regional Representative Council, Supreme Court, Constitutional Court, Agency Financial Examiner, Judicial Commission, Bank Indonesia, Minister, equivalent agency, institution or commission established by Law or Government at the behest of the Law, Provincial Regional Representative Council, Governor, District/City Regional Representative Council, Regent / Mayor, Village Head or equivalent.
The existence of Article 8 paragraph (1) of Act 12/2011 raises a problem because not all types of regulations formed by state institutions or officials can categorize as statutory regulations.
The existence of Article 8 paragraph (1) has provided a new understanding that all regulations such as MPR regulations, DPR regulations, DPD regulations, MA regulations, MK regulations are included in the category of laws as long as they order by higher law or stipulated by the authority.
Even though not all of these institutions can make regulations that bind to the outside.
Wherever in a state system based on law, the first condition is that the court may not make general rules and regulate to the outside.
The existence of the MA Regulations, the Constitutional Court Regulations may not be legislative in nature, Brawijaya Law Journal Vol.
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The existence of laws and regulations established by judicial authorities such as MA regulations also creates the potential for arbitrariness and violates the principle of supremacy of the constitution given that the regulation cannot be the object of reviewing in court.
Of course, the Supreme Court cannot adjudicate the application for judicial review of Perma reviewing if it is submitted by the citizens, considering that the MA also formed the Perma, even though according to the 1945 Constitution the reviewing of legislation under the Law is the Supreme Court's authority.
Finally to response all problem of hyper-regulation and disharmonization of laws and regulations, Ministry of Law and Human Rights stipulates the authority regulatory dispute resolution which regulated in the Regulation of the Ministry of Law and Human Rights Number 32 of 2017 on Regulatory Dispute Resolution through Nonlitigation (Ministerial of Law Regulation on Regulatory Dispute Resolution).
Article 1 number 2 defines what is meant by Dispute of Regulations is a conflict between legal norms or authority arising from the enactment of the Laws and Regulations.
So the dispute referred to in this regulation is a conflict between legal norms or authority.
Objects that can be applied through this litigation path, as stipulated in Article 1 number 1 is regulation in the form of written regulations containing generally binding legal norms and established or determined by State institutions or authorized officials through procedures stipulated in statutory regulations -invitation.
Regulation that can be submitted is based on Article 2 paragraph (2), which is conflicting both vertically and horizontally which causes conflicts of legal norms, conflicts of authority between ministries/institutions and local governments, causing injustice to the community and business actors, and impedes the climate national and regional investment, business and economic activities.
Referring to this provision, it means that the regulation that can be resolved is all laws and regulations contained in the entire hierarchy of laws and regulations.
Applicants who have legal standing have regulated in Article 2 paragraph (3), namely: a. individual or group of people; b. agency/institution/ministry/non-ministerial government institution / regional government; and c. private or public/private business entity.
Furthermore, the legal dispute resolution process based on Article 5 paragraph (1) regulates the examination of applications carried out by a. call the applicant to examine the substance of the application; b. presenting parties related to the application; c. present experts to provide legal opinions; and d. conclude and read the results of the examination.
Then, Article 6 stipulates that the Director-General of Laws and Regulations submits a report on the results of the examination in writing to a.
Minister; b. applicant; and c. agency/institution/ministry/non-ministerial government institution / relevant regional government.
Furthermore, the Minister submits the report on the results of the examination to the President accompanied by recommendations which may take the form of revoke regulation; b. amend the Laws and Regulations; or c. form new regulation.
b.
Typical Characteristics of NonLitigation Regulatory Dispute on Norm Harmonization System.
One alternative in resolving disputes over-regulation is through non-litigation channels using alternative dispute resolution (ADR) methods.
Access to justice, in its widest sense of the effective resolution of Brawijaya Law Journal Vol.
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ADRs offer a solution to the problem of access to justice faced by citizens in many countries due to three factors: the volume of disputes brought before courts is increasing, the proceedings are becoming longer and the costs incurred by such proceedings are increasing.14 ADR originally referred to a variety of techniques for resolving disputes without litigation.
However, having regard to the evolution of modern techniques.
ADR was the term which described a group of processes through which disputes and conflicts have resolved outside of formal litigation procedures.
ADR covers a variety of devices which are not static.
Indeed, they continue to expand as a society gains a better appreciation of the nature of disputes.
Unfortunately, there is no scientific formula by which we can make a definitive determination as to which process and device are suitable for or appropriate to a conflict situation.
At times, a combination of processes may have required where a single one may not yield the desired results.15 ADR has founded upon three primary processes: negotiation, mediation and arbitration.
Although this statement is academically neat and does correctly express a basic premise, the sceptic might rightly retort that not one of these processes is 14 Law Reform Forum, Alternative Dispute Resolution: Mediation and Concilation, (Ballsbridge: Law Reform Commission, 2010), 78.
15 Albert Fiadjoe, Alternative Dispute Resolution: A Developing World Perspective, (Portland: Cavendish Publishing, 2004), 19.
16 John Andrew Faris, An Analysis of The Theory And Principles Of Alternative Dispute Resolution, Disertation, (University of South Africa, 1995), 49. original to ADR.
There is a great deal of truth in this response.
The primary processes are certainly not novel to ADR.
For centuries, negotiation, mediation and arbitration have been recognized as non-judicial methods of dispute resolution.16 All forms of ADR aim to facilitate a settlement.
The advantages of a negotiated solution are many.
It is faster and less expensive; the end can become anticipated; delays have avoided; transaction costs have reduced.
Further, the parties escape the stress which, as a rule, accompanies legal proceedings, and they have better possibilities to preserve good relations.17 The most basic form of ADR is negotiation: at its core, two people simply talk about a problem and attempt to reach a resolution both can accept.
It follows that mediation started when two negotiators, realizing they needed help in this process, accepted the intervention of a third person.
If the third party was asked to make a decision or placed the decision in the hands of some arbitrary mechanism, the process was arbitration.
ADR is often thought of as a new way of resolving disputes.
Its roots run deep in human history, and they have long played a crucial role in cultures across the globe.
18 The ADR spectrum or umbrella covers the following processes: (a) dispute prevention; (b) negotiation; (c) mediation; (d) a mix of mediation/arbitration or arbitration/mediation; (e) the institution of the ombudsman; (f) private mini-trial; (g) judicial mini-trial; (h) pre-trial conference; 17 Bengt Lindell, ‘Alternative Dispute Resolution and the Administration of Justice – Basic Principles’ (2007) 51 Scandinavian Studies in Law, 314.
18 Jerome T. Barrett, A History of Alternative Dispute Resolution, (San Francisco: A Wiley Imprint, 2004), 1.
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6 No.2 (2019) State Regulations and Law Enforcement 178 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... (i) early neutral evaluation; (j) arbitration; (k) administrative hearing; (l) case management; and (m) renting a judge.19 To identify some common features relating to the acronym ‗ADR: a.
There is a wide range of ADR processes; b. ADR excludes litigation; c. ADR is a structured process; d. ADR normally involves the presence of an impartial and independent third party; e. Depending on the ADR process, the third party assists the other two parties to reach a decision or decides on their behalf; and f. A decision reached in ADR may be binding or non-binding.20 ADR is becoming the preferred choice for the resolution of conflict and disagreement, and the reasons are not hard to find.
Litigation is a stressful undertaking.
It is a costly, lengthy, public exhibition of differences, leading to a great deal of ill-will between litigants.
In contrast, ADR processes are usually faster, less expensive, less timeconsuming and more conclusive than litigation.
Some of the perceived advantages of ADR can be summarized as follows: (a) speed; (b) choice and expertise of impartial neutrals; (c) informality and flexibility; (d) privacy; (e) economy; (f) finality; (g) diversity and adaptability of ADR; (h) recognition of the needs of the parties; (i) win-win situation; (j) involvement of the parties in creating imaginative solutions; (k) savings in public expenditure; (l) private savings in time and energy; (m) retention of beneficial business and personal relationships; (n) shortening of court dockets; (o) more efficient legal systems; (p) qualitative improvement in the delivery of justice; and (q) increased participation and access to justice.
21 Table 1.
Comparison of the Dispute Resolution System of Regulation in Indonesia Litigation Non-Litigation Institution Constitutional Court Supreme Court Directorate General of legislation, The Ministry Of Law And Human Rights Applicant a.
Individual Indonesian Citizens; b.
Customary law community unit; c. Public or private legal entity; d. State institutions.
a.
Community groups; b.
Individuals.
a.
Individual or group of people; b.
Agency / institution / ministry / non-ministerial government institution / regional government; c. Private or public / private business entity.
Object of application Regulation (act, law) Legislation under the Law All Regulations/Legislation Basic to review 1945 Constitution Regulation (act, law) Regulation/Laws above it Settlement deadline There is no time limit 14 days There is no time limit The final result Verdict/decision Verdict/decision Recommendation Formulation of decision/reccomm endation a.
Not acceptable b.
Accepted and states that it is contrary to the 1945 constitution; c. Rejected a.
Accepted and ordering to revocation; b.
Rejected a. Revoke the laws and regulations; b.
Change the rules; c. Forming new regulation.
19 Albert Fiadjoe, above n.14, 19.
20 Law Reform Forum, above n.13, 15.
21 Albert Fiadjoe, above n.14, 1.
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The settlement of litigation is carried out by the Constitutional Court to review the constitutionality of the Law against the 1945 Constitution as stipulated in the 1945 Constitution and the Constitutional Court Law, by the Supreme Court to review the material regulation under the Act on the Act as stipulated in the 1945 Constitution and MA Law.
Meanwhile, the settlement of nonlitigation can be carried out by the Ministry of Law and Human Rights, especially the Director-General, that is the DirectorGeneral of Laws and Regulations as stipulated in Permenkumham.
No relation or direct legal relationship was found between settlement through litigation and nonlitigation Hence, the most distinguish typical characteristics of non-litigation regulatory dispute resolution from litigation resolution: the resolution institution is Ministry under the executive branch, the final results limited only give a recommendation, and the nature of recommendation not final and binding.
22 Jimly Asshiddiqie, Hukum Tata Negara dan PilarPilar Demokrasi, (Jakarta: Konstitusi Press, 2005), 124-129.
23 Rule of law principles according to Jimly Asshidiqie: 1.
Supremacy of the Law; 2.
Equality Before the Law; 3.
Legality; 4.
Limitation of Power; 5.
Independent Executive Organs; 6.
Free and Impartial Judiciary; 7.
State Administrative LEGALITY OF NON-LITIGATION REGULATORY DISPUTE RESOLUTION BASED ON CONSTITUTIONAL INTERPRETATION This section will elaborate the legality of non-litigation regulatory dispute resolution from several regulations which stipulates this resolution.
Then, for determines the legality, it can be discovered by analyzing the compatibility of source and substance of authority with higher regulations.
So, because the constitution is supreme law and source of all law of the land, the Author prefers to use the concept of constitutional interpretation method to determine of non-litigation regulatory dispute resolution legality.
a.
The Stipulation of Non-Litigation Regulatory Dispute Resolution on the Hierarchy of Norm Indonesia is a nation which adopts the rule of law principle, as stipulated in Article 1 paragraph (3) of the 1945 Constitution.
Consequently, Indonesia explicitly states that, so all policy and action of government and society definitely must refer to the 1945 Constitution as a basic law.22 There are 12 principles of the rule of law,23 one of them is the principle of legality which described by Jimly Asshidiqie, that all actions of the Government must have based on legal and written legislation, the regulation must exist and apply in advance or precede Courts; 8.
Constitutional Court; 9.
Protection of Human Rights; 10.
Democratic; 11.
Realizing the Goal of the State; and 12 Transparency and Social Control.
See Jimly Asshiddiqie, Konstitusi dan Konstitusionalisme Indonesia, (Jakarta: General Secretary of Constitutional Court of Indonesia, 2006), 123-129.
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6 No.2 (2019) State Regulations and Law Enforcement 180 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... administrative actions or actions taken 24 It means that the entire implementation government and society action must have based on the law which regulated by a state institution.
Act Number 12 the Year 2011 On Establishment of Laws and Regulations (Law on Regulations Establishment) stipulates that there are types and hierarchies of regulations/rules which apply in Indonesia, as mention in Article 7 paragraph (1): a.
The 1945 Constitution of the Republic of Indonesia; b.
Decree of the People's Consultative Assembly; c. Law/Government Regulation in place of law; d. Government Regulations; e. President Regulation; f. Provincial Regulation; and g. Regency/City Regulation.
Also, Article 8 paragraph (1) regulates the types of regulation other than those stipulated in Article 7 paragraph (1) covering all regulations which regulated by states institution, one of this is Ministerial Regulation.
Forward, the author will assess the arrangement of non-litigation regulatory dispute resolution based on the hierarchy of regulations.
The constitution is supreme law of the land, as A.V.
Diciey said.25 The Constitution is supreme because of the highest norm in the hierarchy of laws and regulations.
The 1945 Constitution as the constitution of the Republic of Indonesia in all article has not yet regulated the authority or mechanism of regulatory dispute resolution.
The most relevant thing about this authority is the stipulation about minister Article 17 which states that the President is assisted by ministers in charge of certain affairs of government.
Even these fields have not been explained in more detail, including in terms of regulatory dispute resolution.
24 Ibid, 123-129.
Furthermore, Act Number 39 the Year 2008 on the State Ministry (Law on State Ministry) explain at Article 4 states that each Minister in charge of certain affairs in the government consisting of b. government affairs whose scope is mentioned in the 1945 Constitution of Indonesia; Furthermore, in Article 8 paragraph (2) stipulates that in carrying out its duties, the Ministry carries out functions: a. formulation, stipulation, and implementation of policies in their fields.
One of the state ministers referred to in this article is the Ministry of Law and Human Rights (Ministry of Law).
However, even in this Law on State Ministry, no regulation can be found regarding the authority to settle the regulatory dispute.
At the same level of the hierarchy, Law on Regulations Establishment regulates about Ministry of Law.
Several articles define that the Ministry of Law and Human Rights has a function to harmonize, round off and strengthen the conception of the Bill, Draft of Government Regulation, Draft of Presidential Regulation, Draft of Provincial Regulation, Draft of District / City Regulation.
However, in this Law also no regulation regarding the authority to settle the regulatory dispute.
Derivatives from the Law of the State Ministry, regulated in Presidential Regulation Number 44 the Year 2015 on Ministry of Law and Human Rights (Presidential Regulation on Ministry of Law).
Article 1 states that the Ministry of Law led by a Minister who is under and responsible to the President.
Article 3 stipulates that the Ministry of Law and Human Rights carries out functions: a. formulation, stipulation, and implementation of policies in the field of legislation, general law administration, 25 AV Dicey, Introduction to the Study of the Law of the Constitution, (Indianapolis: Liberty Classics, 1982), 87.
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Furthermore, Article 4 stipulates that the Ministry of Law consists of b.
The Directorate of Laws and Regulations which has specific task to carrying out the formulation and implementation of policies in the field of legislation in accordance with the provisions of the legislation, so as to carry out functions: formulation; implementation; providing technical guidance and supervision; monitoring, evaluating, and reporting on policies in the fields of design, harmonization, promulgation and publication, litigation of laws and regulations, facilitation of the designation of laws and regulations in the regions according to regional requests, and guidance of legislators.
However, in the Presidential Regulation on Ministry of Law, also no regulation can be found regarding the authority to settle the regulatory dispute.
The derivative of Law on Regulations Establishment is regulated in Presidential Regulation Number 87 the Year 2014 on Implementation of Law on Regulations Establishment.
In this regulation only limited to explain the technical establishment of legislation more detail.
So, also no regulation can be found regarding the authority to settle the regulatory dispute.
Finally, the regulation which regulates the authority to settle a regulatory dispute can be found in the Ministerial of Law and Human Rights Regulation Number 32 the Year 2017 on Procedures for Regulatory Dispute Resolution through Non-litigation (Ministerial of Law Regulation on Regulatory Dispute Resolution).
Reasons for the establishment of this regulation refers to the consideration: (1) To improve the establishment of legislation based on principles of rule of law; (2) Existence of conflict between laws and regulations vertically and horizontally which cause conflicts of legal norms, conflicts of authority between ministries / local government institutions, cause injustice to the community and business actors, and hamper the investment climate, business, and national and regional economic activities in Indonesia.
Based on the laws and regulations above, starting from the 1945 Constitution, Law on State Ministry, Law on Regulations Establishment, Presidential Regulation on Ministry of Law and Human Rights, Presidential Regulation on Implementation of Law on Regulations Establishment, none of these laws and regulations stipulated the authority of regulatory dispute resolution.
The authority to resolve the statutory dispute by Ministry of Law and Human Right specifically the Directorate of Legislation can only be found only on the regulation on Ministerial of Law Regulation on Regulatory Dispute Resolution.
b.
The Legality of Non-Litigation Regulatory Dispute Resolution Based on Constitutional Interpretation Method The legality of non-litigation regulatory dispute resolution can track by analyzing the source and substance of authority with compliance with higher regulations which UUD 1845 constitution based on constitutional interpretation method.
The reason for using this analysis is because the constitution has the highest position in the hierarchy of norm, as well as being the source of all the regulations under it.
This statement is based on Hans Kelsen's thinking about the theory of norm pyramid (stufenbau theory) which explains the relation between norms, The relation between the norm regulating the creation of another norm and this other norm may be presented Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 182 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... as a relationship of superand subordination, which is a spatial figure of speech.
The norm determining the creation of another norm is the superior, the norm created according to this regulation, the inferior norm.
The unity of these norms is constituted by the fact that the creation of the norm the lower one is determined by another the higher the creation of which of determined by a still higher norm, and that this regressus is terminated by a highest, the basic norm being the supreme reason of validity of the whole legal order, constitutes its unity.26 Jimly Asshiddiqie explained Hans Kelsen's thought statement, legal systems have arranged in stages and multilevel, the relationship between norms that govern the actions of other norms and other norms has referred to as super relations and subordination in spatial contexts.27 For this reason, lower norms may not conflict with higher norms.
The hierarchy of norms in these regulations relates to the validity of norms, this doctrine explains the binding force of a norm so it must have implemented, Hans Kelsen explains the validity of the law, “To say that a norm is valid, is to say that we assume its existence or what amounts to the same thing we assume that it has "binding force" for those whose behaviour it regulates.
The validity of law means that the legal norms are binding, that men ought to behave as the legal norms command, that men ought to obey and apply the legal norms.”28 So the validity of norms is a doctrine that explains how and what are the requirements of a legal norm to be legitimate or valid so that it can be applied and legitimate to society.
26 Hans Kelsen, above n.2, 124.
27 Jimly Asshiddiqie dan M. Ali Safa’at, Teori Hans Kelsen Tentang Hukum, (Jakarta: General Secretary of Constitutional Court of Indonesia, 2006), 110.
Regarding the validity of norms, H. L. A. Hart tries to link the community response to the norm, An accepted rule of recognition in making internal statements is understood and carefully distinguished from an external statement of fact that the rule is accepted, many obscurities concerning the notion of legal 'validity' disappear.
For the word 'valid' is most frequently, though not always, used, in just such internal statements, applying to a particular rule of a legal system, an unstated but accepted rule of recognition.
To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system.29 Hart stated that to say that the regulation is valid or not is bypassing all the reviews given by the rules of recognition and the rules of the system.
Meanwhile, according to Jimly Asshidiqie, the application of norms can be divided into 4 (four): (1) Philosophical applicability, if it is in accordance with the country's philosophical values; (2) Juridical application, namely having a binding capacity in general as a dogma seen from judicial technical considerations; (3) Political applicability, that is if the enactment is indeed have supported by real political forces; and (4) Sociological applicability, which prioritizes an empirical approach by prioritizing criteria of recognition, acceptance criteria, or factual legal criteria.30 Furthermore, Hans Nawiasky explained that a norm has a hierarchy consisting of Fundamental norms of the country (Staatsfundamentalnorm); Basic state rules (Staatsgrundgesetz); Formal Law 28 Hans Kelsen, above n.2, 39.
29 H. L. A. Hart, The Concept of Law (New York: Oxfor University Press, 1961), 103.
30 Jimly Asshiddiqie, Perihal Undang-Undang, (Jakarta: Rajawali Press, 2010), 240.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... | 183 (Formell Gesetz); and autonomous implementing regulations and regulations (Verordnung En Autonome Satzung).31 This view has classified tiered norms according to the hierarchy of laws and regulations.
The existence of a hierarchy of laws and regulations as stipulated in Article 7 paragraph (1) Law on Regulations Establishment, has legal consequences relating to the binding power of each of these levels, as stipulated in Article 7 paragraph (2) which states that the legal force of the Laws is appropriate with hierarchy.
Explanation of this article, more explicitly states that the gap in each type of legislation based on the principle that lower legislation may not conflict with the higher legislation.
Besides, it should be borne in mind that the constitutional functions according to Zachary Elkins and Tom Ginsburg, First, the most important role of constitutions is to limit the behaviour of the government.
Second, the function that constitutions serve is the symbolic one of defining the nation and its goals.
A third and very practical function of constitutions is that they define patterns of authority and set up government institutions.32 So, according to this statement, the constitution can explain the pattern of authority and regulation of state institutions.
This opinion is also in line with Jimly Asshidiqie's statement that one of the functions of the constitution is a source of 31 Hans Nawiasky inside Hamid Atamimi, Peranan Keputusan Presiden Republik Indonesia dalam Penyelenggaraan Pemerintahan Negara (Disertasi, Fakultas Hukum Universitas Indonesia, Jakarta, 1990) 287.
32 Zachary Elkins dan Tom Ginsburg, The Endurance of National Constitutions, (New York: Cambridge University Press, 2009), 38-39.
33 Jimly Asshiddiqie stated that the constitutional functions are: 1.
Determining functions and limiting the power of state organs; 2.
Regulating legitimacy towards state power or the activities of administering state power.33 Based on concepts of hierarchy of norm from certain experts above, ideally, all legal norms are synergized or harmonious with each other horizontally and vertically.
However, when there is a conflict among the norm, it must be resolved.
Non-litigation regulatory dispute resolution also a norm that might be reviewed for legality whether it is in line with higher regulations, of course including in harmonizing with the constitution as the highest law on the legal system.
The description of the doctrine of the hierarchy of norms, the validity of norms, and the functions of the constitution and above, has provided an understanding that norms are in the form of hierarchies, norms with higher levels become the source and basis for forming lower levels of norms, so lower regulation can not conflict with higher laws and regulations.
The constitution is the source and basis for the formation of all regulation including Ministerial Regulation which regulates the authority to settle regulatory disputes, therefore this authority must not conflict with the constitution.
This is the rationality, why the author uses constitutional interpretation method analysis to assess the source and substance authority of regulatory dispute resolution that becomes important.
Besides, indeed the author realizes, even though the authority of regulatory power relations between state organs.
3.
Regulating power relations between state organs and citizens; 4.
Source of legitimacy towards state power or the activities of administering state power; 5.
Authority from the source of power to state organs; 6.
Symbolic as a unifier; 7.
Symbolic as a reference to national identity; 8.
Symbolic as the centere of ceremonies.
9.
Controlling society; 10.
Engineering and community reform.
See Jimly Asshiddiqie above n.22, 27.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 184 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... dispute resolution by the Ministry of Law is still only regulated at the Ministerial Regulation level, but in the future its high possibility this authority will be regulated at the Law level, so the authority is subject to the Constitutional Review.
In analyzing this constitutional authority directly against the 1945 Constitution as the supreme law of the land, the Author will use the ideas of the constitutional interpretation method by Philip Bobbit, then Sotirios A. Barber and James E. Fleming.
Philip Bobbit identified six types of constitutional interpretation methods, (1) Historical (relying on the intentions of the framers and ratifies of the Constitution); (2) Textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary); (3) Structural (inferring rules from the relationships that the Constitution mandates among the structures it sets up); (4) Doctrinal (applying rules generated by precedent); (5) Ethical (deriving rules from those moral commitments of ethos that are reflected in the Constitution); and (6) Prudential (seeking to balance the costs and benefits of a particular rule)34 It is interesting to combine the thinking about this method of constitutional interpretation with the idea from Sotirios A. Barber and James E. Fleming which states that there are seven methods of constitutional interpretation, (1) Textualism (plain words of the constitutional document); (2) Consensualism (current social consensus on what the words mean); (3) Philosophic (nature of things the 34 Philip Bobbit, Constitutional Fate: Theory of the Constitution (New York: Oxford University Press, 1982): 3–8.
Look also Ian C. Bartrum, “Metaphors and Modalities: Meditations on Bobbit's Theory of words refer to/best understanding of concepts embodied in the words); (4) Originalism (intentions or original meanings of framers/ratifiers/founding generation; (5) Structuralism (document’s arrangement of offices, powers, and relationships; (6) Doctrinalism (doctrines of courts and judicial precedents; and (7) Pragmatism (preferences of dominant political forces).35 The thoughts of Philip Bobbit, then Sotirios A. Barber and James E. Fleming above, if we analyzed there are equations of four methods of interpretation namely Textual interpretation, Originalism / Historical interpretation, Structural interpretation, and Doctrinal interpretation.
However, they also have different interpretation methods, Philip Bobbit with Ethical and Prudential interpretation, while Sotirios A. Barber and James E. Fleming with Consensualism, Philosophical, and Pragmatic interpretations.
Based on these two ideas, there are at least nine methods that can be used to analyze the legality based on constitutional interpretation of the authority regulatory dispute resolution trough non-litigation.
To answer the legality of non-litigation regulation dispute resolution based on constitutional interpretation methods, it can be discovered by analyzing the compatibility of source and substance of the authority nonlitigation regulatory dispute resolution against UUD 1945 Constitution.
The source of authority relevant to Textual and Structural interpretation, then the substance of authority related to Prudential and Consensus interpretation.
the Constitution” William & Mary Bill of Rights Journal, Volume 17 | Issue 1, 2008, 158.
35 Sotirios A. Barber and James E. Fleming, Constitutional Interpretation The Basic Questions, (New York: Oxford University Press, 2007), 64.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... | 185 Textual interpretation according to Philip Bobbit, then Sotirios A. Barber and James E. Fleming are constitutional interpretations that interpret the norm based on the text contained in the constitution.
If you see in the 1945 Constitution, not even one article cannot be found that regulates the authority of the resolution of regulatory conflict through non-litigation.
The 1945 Constitution only regulates the settlement of norm conflicts between levels of legislation through litigation, namely the Constitutional Court for review Laws against the Constitution, then the Supreme Court for assessing harmonization of regulation under the Law against the Law.
However, it should have noted that in several decisions of the Constitutional Court, it explained related to this interpretation that, when 1945 Constitution not regulated particular issue it doesn’t mean it automatically contradicts the 1945 Constitution or unconstitutional, on the contrary 1945 Constitution not textually forbid regulatory dispute resolution strictly only by litigation, so this arrangement of authority is an open legal policy.
Structural interpretation according to Philip Bobbit, then Sotirios A. Barber and James E. Fleming is a constitutional interpretation that defines norms based on authority which given to state institutions in the constitution.
Article 17 of the 1945 Constitution regulates the delegation of authority granted by the President to his ministers, including in the legal field to the Ministry of Law and Human Rights.
For this reason, in carrying out one of the functions of harmonizing laws and regulations as mandated by the President, the Ministry of Law and Human Rights has the authority to make a mechanism that can encourage such harmonization through the settlement of nonlitigation laws and regulations dispute.
Prudential interpretation according to Philip Bobbit is a constitutional interpretation that defines norms based on a balance between costs and benefits.
The existence of non-litigation dispute resolution mechanisms provides significant benefits to the harmonization of Laws and Regulations in Indonesia legal system because the government helped by requests from the public, so the government can find out which regulations are still conflicting.
Also, this procedure does not burden the budget because actually, the Ministry of Law and Human Rights does have a budget to carry out its function to harmonize legislation.
Consensus interpretation, according to Sotirios A. Barber and James E. Fleming is a constitutional interpretation that defines norms based on current conditions and needs of society.
A large number of these regulations, of course, also has great potential for disharmony in either the same or different fields.
The existence of disharmony in this regulation will positively have an impact and harm to society because it results in legal uncertainty.
Article 28 D of 1945 Constitution guarantees that every person has the right to fair legal certainty and equal protection before the law.
For this reason, with such a large number of laws and regulations, the community needs various efforts so harmonization of laws and regulations can be carried out quickly, appropriately and participative.
This fact shows the urgency of community needs for a mechanism to encourage harmonization, one this is through regulatory dispute resolution.
Explanation as mentioned earlier, it can be concluded even though regulatory dispute resolution not regulated on the 1945 Constitution, not even in the Law, or Presidential Regulation level, still only found at the level of Ministerial of Law and Human Rights Regulation.
However, in analysis of Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 186 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... constitutional interpretation methods shows clearly this authority is legal based on at least four constitutional interpretations: (1) Textual interpretation, prove no textual stipulation which forbid regulatory dispute resolution strictly only by litigation, so it is an open legal policy; (2) Structural interpretation, shows Ministry of Law and Human Rights has the authority to make legal procedures in order to harmonize regulations; (3) Prudential interpretation, verify there are many benefits from this mechanism, without demanding additional budgetary burden; (4) Consensus interpretation, shows there are community needs for laws and regulations can be harmonized quickly, precisely, and participative.
Indeed, by nature, there are limitations to non-litigation regulatory dispute resolution to be able to resolve the conflict between norms and overregulated because this mechanism is voluntary and the result only recommendation, it is different from court decisions that have forced power.
However, the important thing is this mechanism can open alternative resolution besides complement litigation process to stimulate the harmonization and streamlining regulations.
IV.
CONCLUSION AND SUGGESTION Conclusion Characteristic of non-litigation regulatory dispute resolution on Indonesia norm harmonization system can refer to the legal history of regulation dispute resolution which currently adopted litigation and nonlitigation settlement.
The settlement of litigation is carried out by the Constitutional Court to review the constitutionality of laws against the 1945 Constitution, then by the Supreme Court to review regulations under the law against law.
Meanwhile, the settlement of non-litigation carried out by the Ministry of Law and Human Rights, especially the Directorate of Legislation.
The most distinguish typical characteristics of non-litigation regulatory dispute resolution from litigation resolution: (1) the resolution institution is Ministry under the executive branch, (2) the final results limited only give a recommendation, and (3) the nature of recommendation not final and binding.
The Legality of authority on nonlitigation regulatory dispute resolution, base on arrangement Indonesian only found at the level of Ministerial of Law and Human Rights Regulation.
An analysis of constitutional interpretation methods shows clearly this authority is legally based on at least three constitutional interpretations: (1) Textual interpretation, it is an open legal policy; (2) Structural interpretation, shows the institution has the authority to make legal procedures; (3) Prudential interpretation, verify many benefits without additional budgetary burden; (4) Consensus interpretation, shows there are community needs harmonization quickly, precisely, and participative.
By nature, there are limitations to be able to resolve the conflict between norms and overregulating because this mechanism is voluntary and the result only recommendation, but the important thing is it can open alternative resolution to stimulate the harmonization and streamlining of regulations.
Suggestion The government, especially the Directorate General of the Ministry of Law and Human Rights must continue to develop a better non-litigation dispute resolution mechanism.
To produce a follow-up to recommendations for the results of dispute resolution that are effectively carried out, it is necessary to have coordination and cooperation from all state institutions to Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... | 187 realize a harmonious and synergic system of norms in the legislation hierarchy.
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Marzuki, Peter Mahmud, Penelitian Hukum (Jakarta: Kencana Media Group, 2014).
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ACT and Regulation Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 188 | Winata, Aditya Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution... Undang-Undang Dasar Negara Republik Indonesia tahun 1945 UndangUundang Republik Indonesia Number 12 Tahun 2011 tentang Pembentukan Peraturan Perundangundangan Undang-Undang Republik Indonesia Number 24 Tahun 2003 tentang Mahkamah Konstitusi Undang-Undang Republik Indonesia Number 14 Tahun 1985 tentang Mahkamah Agung Undang-Undang Republik Indonesia Number 48 Tahun 2009 tentang Kekuasaan Kehakiman Undang-Undang Republik Indonesia Number 39 Tahun 2008 tentang Kementerian Negara Peraturan Presiden Republik Indonesia Number 44 Tahun 2015 tentang Kementerian Hukum dan Hak Asasi Manusia Peraturan Presiden Republik Indonesia Number 87 Tahun 2014 tentang Pelaksanaan UU Number 12 tahun 2011 tentang Pembentukan Peraturan Perundang-undangan Peraturan Kementerian Hukum dan Hak Asasi Manusia Number 32 Tahun 2017 tentang Tata Cara Penyelesaian Sengketa Peraturan Perundangundangan Melalui Jalur Nonlitigasi Online https://finance.detik.com/berita-ekonomibisnis/d-3344758/cetak-rekor-ri-jadinegara-hukum-dengan-aturan-palingbanyak-di-dunia https://news.detik.com/berita/d4320699/seskab-obesitas-regulasi-diindonesia-sering-tumpang-tindih https://nasional.kompas.com/read/2016/06/1 3/17215521/jokowi.3.143.perda.berma salah.telah.dibatalkan https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia https://finance.detik.com/berita-ekonomi-bisnis/d-3344758/cetak-rekor-ri-jadi-negara-hukum-dengan-aturan-paling-banyak-di-dunia https://news.detik.com/berita/d-4320699/seskab-obesitas-regulasi-di-indonesia-sering-tumpang-tindih https://news.detik.com/berita/d-4320699/seskab-obesitas-regulasi-di-indonesia-sering-tumpang-tindih https://news.detik.com/berita/d-4320699/seskab-obesitas-regulasi-di-indonesia-sering-tumpang-tindih https://nasional.kompas.com/read/2016/06/13/17215521/jokowi.3.143.perda.bermasalah.telah.dibatalkan https://nasional.kompas.com/read/2016/06/13/17215521/jokowi.3.143.perda.bermasalah.telah.dibatalkan https://nasional.kompas.com/read/2016/06/13/17215521/jokowi.3.143.perda.bermasalah.telah.dibatalkan
129 | Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… Gashb and Itlaf Arrangements in KHES and Authority of Justice (Review of Chapter XV of Book II of KHES) Sufiarinaa, Herman Sudrajatb, Hamidullah Mahmudc aFaculty of Law, Universitas Tama Jagakarsa Email: sufiarina@jagakarsa.ac.id bAdvocate and graduate of Universitas Tama Jagakarsa Email: manzat1609@yahoo.co.id cUIN Syarif Hidayatullah Email: hamidjakarta@gmail.com Submitted : 2019-08-12 | Accepted : 2020-04-13 Abstract: As a guide for judges in the Religious Court, the Supreme Court has issued Perma No.2 of 2008 concerning the Compilation of Sharia Economic Law (KHES).
It contained Gashb and Itlaf, in Book II about the Covenant, whereas Gashb and Itlaf have interpreted as deprivation and destruction.
Briefly, Gashb and Itlaf seem to be an offence because of the phrase taking or destroying someone else's property.
Offence in the field of Islamic economics is the absolute authority of the State Court.
For this reason, it is necessary to examine whether Gashb and Itlaf included in the context of Islamic economics.
It also needs to be examined whether Gashb and Itlaf are the absolute authority of the Religious Court.
Normative juridical research carried out by discussing Book II of KHES, specifically Chapter XV.
It then analysed with the absolute competence of the Religious court, the provisions of Article 49 of the Law of Religious Court.
The analysis complemented by a study of legal principles in Islamic economics.
Comparisons also made with the concepts of legal relations in the Civil Code, especially regarding the binding and offence in the Criminal Code.
The research results of Gashb and Itlaf do not originate from the contract and do not include business activities with Islamic economic principles.
Thus Gashb and Itlaf are not included in the absolute authority of the Religious Court.
Gashb and Itlaf are not intended as offences because the sanctions are compensation claims.
Claims are filed based on lawsuits that violate the law and become the absolute authority of the State Court.
Placement of Gashb and Itlaf in KHES is wrong because it does not include Islamic economic activities, so it must have removed from KHES.
Keywords: sharia economics; contracts; Gashb and Itlaf; the authority of religious courts.
I.
INTRODUCTION Law No.
7 of 1989 regarding Religious Court was amended by Law No.
3 of 2006 and the second amendment to Law No.
50 of 2009 concerning Religious Court (from now on abbreviated as UU-PA).
Religious Court is one of the actors of judicial power for Muslim people seeking justice regarding Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 130 | Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… some instances.
Some instances, as the absolute authority of religious court, are stated in Article 49 of Law No.
3 of 2006 from letter (a) until letter (i).
Article 49 letter (i) Law No.
3 of 2006 establishes Islamic economics as the absolute authority of the Religious Court.
The elucidation of Article 49 of the UU-PA directly dives into the settlement of the sharia economy, which is interpreted as a dispute, even though the authority of the Religious Court is not only sharia economy.
Besides, the explanation of Article 49 of the UU-PA also narrows the authority of the Religious Court because it declares as a "dispute resolution."
Disputes interpreted as disputes over individual interests in the sense of being in the realm of civilization.
If a dispute cannot be resolve by amicable agreement, a forced effort can be sought through legal means by filing a claim in the form of a lawsuit.
The claim is filed with the competent court to obtain a judge's decision related to the truth of the plaintiff's right in his legal relationship with the defendant.
Peter Mahmud Marzuki said that it was essential to know the nature of legal connections to understand the legal regime that controlled the legal relations.
Furthermore, legal relations will determine which court has the authority to resolve disputes.1 The established legal relationship needs to be known to determine legal steps in filing litigation claims in court.
According to Retnowulan Sutantio,2 interests are civil rights and obligations regulated in material civil law.
Material law for Islamic economics found among others in the UU-PA, Law No.
19 of 2008 concerning State Sharia Securities 1 Peter Mahmud Marzuki, Pengantar Ilmu Hukum, (Kencana Prenada Media Grup, Jakarta 2009), 255.
2 Retnowulan Sutantio dan Iskandar Oeripkartawinata, Hukum Acara Perdata Teori dan Praktek, (Mandar Maju Publishing, 9th Ed, 2002), 1 3 Domiri, ‘Analisis Tentang Sistem Peradilan Agama di Indonesia’, (2016) 47(43) Jurnal Hukum dan Pembangunan, 334, (ISSN: 0125-9687 (Print) E-ISSN: 2503-1465 (Online)) 4 Elucidation of Article 49; Dispute resolution is not only limited in the field of sharia banking but also and Law No.
21 of 2008 concerning Islamic Banking as well as in KHES.
The publication of KHES based as a guideline for judges in the Religious Court to facilitate the examination and resolution of Islamic economic disputes.
Whereas formal law for religious courts has explicitly not yet exist.
During this time, the procedural law used is the procedural law that applies in the State Court, even though the types of cases that are under the authority of the Religious Court are not specific, which is not possible to solve using procedural law in the State Court.3 Further explanation of Article 49 of the UU-PA4 seems to place the Islamic economy as the central authority of the Religious Court.
Whereas Islamic economics, is only part of the authority possessed by the Religious Court.
Explanation of the authority of the Religious Court is further elaborate and explained in various fields starting from the letter (a) to letter (i).
Elucidation of Article 49 Letter (i) determines what is meant by "sharia economy" is an act or business activity carried out according to sharia principles, including but not limited to a. Islamic Bank; b. Sharia microfinance institutions; c. Sharia insurance; d. Sharia reinsurance; e. Sharia mutual funds; f. Sharia bonds and mediumterm sharia securities; g. Sharia securities; h. Sharia financing; i. Sharia pawnshop; j.
Pension funds for sharia financial institutions; and k. Sharia business.
The mention of the 11 fields mentioned above, surely not a limitation because this preceded by the word 'among other things'; so it is certainly possible that outside the field there are other fields of Sharia economic activity.5 In the end, it is close to the sharia in other sharia economics fields.
(Islamic economics is only one of the authorities of the PA), although the following is also given a further explanation from letters a to letters i as the authority of the Religious Court.
5 Diana Rahmi, ‘Ruang Lingkup Kewenangan Peradilan Agama Dalam Mengadili Sengketa Ekonomi Syariah’, (2013) 13(2) Jurnal Hukum dan Pemikiran, P.ISSN: 1412-6303, E.ISSN: 2549-001x <https://jurnal.uinantasari.ac.id/index.php/syariah/article/view/174> accessed March 2020.
Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… | 131 business phrase, which, of course, is very open.
Other sharia economic activities are complete in the Religious Court.
It can interpret that the authority of the religious court related to the resolution of Islamic economic arguments is limited only in the scope of civil disputes.
Islamic economic crime or offences remain the absolute authority of the State Court.
KHES as a material law consists of 4 books, namely: 1.
Book I about Legal and Amwal Subjects; 2.
Book II about the Covenant; 3.
Book III about Zakad and Grant; 4.
Book IV on Islamic Accounting From the distribution of books in the KHES perspective, it can be understood that the legal relations (rechtsverhouding) of the parties regulated in Book II about the Covenant.
A legal relationship in the form of a contract6 stated as an agreement between two or more parties to do or not do specific legal actions.
Thus, the contract is an agreement that gave birth to a legal relationship because the agreement creates rights and obligations for the parties.
For the fulfilment of promises that have ignored, forced efforts can be made to court or arbitration in the form of a breach of a tort, although basically settlement through the court is a last resort (ultimum remedium).
The legal relationship between the parties in sharia economic transactions begins with the contract.
Violation of the contract can be addressed by litigation by submitting a breach of claim to the Religious Court.
The exciting thing about KHES is that Book II regulates Covenant (Akad), but the contents in Chapter XV Article 391-412 found Gashb and Itlaf arrangements, which interpreted as deprivation and destruction.
At first glance, the legal relationship between Gashb and Itlaf does not begin with an agreement that gave birth to a contract; it is even a single act and tends to be closer to a criminal offence.
Therefore, it is necessary to study further whether this Gashb and Itlaf are following their placement in the KHES Book 6 See Article 20 number (1) of Book II of KHES 7 Ahmad, ‘Penyelesaian Sengketa Ekonomi Syariah di Pengadilan’ (2014) II(6) Jurnal Hukum dan Keadilan, 482.
II, which regulates Akad, and determine whether Gashb and Itlaf are sharia economic activities.
Furthermore, it is also necessary to determine the authority of the Religious Court in the settlement of Gashb and Itlaf.
Sharia economic disputes are very close to defaults.
Ahmad7 delivered by taking a random decision on the final Religious Court related to Islamic economics from 2006 to 2013 totalling 20 cases.
Eighteen of these cases constitute a type of dispute in breach of contract, and the other two are for removal, namely the removal of the Basyarnas decision and cancellation of the musyarakah financing auction.
There are quite a lot of studies that discuss the authority of the Religious Court related to sharia economics.
In general, what have investigated are the fields of sharia economics under the authority of the Religious Court.
No studies have found that have specific discussions on Gashb or Itlaf related to sharia economic disputes.
Based on the explanation presented above, it is necessary to study further the legal relationship and arrangement of Gashb and Itlaf in KHES Book II and determine the settlement through the court by examining the elements and authority of the Religious Court in Indonesia.
The problems are focused on: first, are Gashb and Itlaf a sharia economic activity that starts from the contract as specified in the second book of KHES?
Second, Which court is authorized to settle Gashb and Itlaf?
II.
LEGAL MATERIALS AND METHODS To discuss the issues raised, a normative8 juridical study carried out on the principles, harmonious and contractual terms, the concept of legal relations, and comparing Gashb and Itlaf with the provisions of Book III of the Civil Code on Commitments and Court authority.
Presentation of information sourced from secondary data, with the use of primary legal material in the form of Law No.
3 of 2006 8 Soerjono Soekanto dan Sri Mamudji, Penelitian hukum Normatif Suatu Tinjauan Singkat, (Raja Grafindo Persada, Jakarta, 2009) 14.
Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 132 | Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… concerning Amendment of Law No.
7 of 1989 concerning Religious Court (UU-PA), Law No.
21 of 2008 concerning Sharia Banking, Supreme Court Regulation (Perma) No.
2 of 2008 concerning the Compilation of Sharia Economic Law, in particular, Book II on Covenants, and the Civil Code (BW) Book Specifically book III on Commitments.
The secondary legal materials used in this study sourced from various related articles, various books that discuss sharia economics, about engagement and other scientific products in the form of articles both print and online media.
Tertiary material is material that seeks an explanation of primary and secondary legal materials.
Data analysis uses a qualitative approach in-depth and overall and is simultaneous and holistic.
III.
RESULTS AND DISCUSSIONS Gashb and Itlaf in KHES The legal principle of Ubi societas ibi ius, where there is a society there is a law, is appropriate to state the existence of Islamic law in Indonesia related to sharia economic activities.
Furthermore, it can be said that where there are Muslim societies, Islamic Law applies there.
According to the Elucidation of Article 49 letter (i) of Law No.
3 of 2006 determining the Islamic economy is an act or business activity carried out according to Islamic principles.
The principle of sharia is an Islamic economic system that is based on Allah's guidance in the Al Qur’an, which is known by Muslim scholars as to the doctrine of non-usury transactions.9 Islamic economic activities avoid prohibited activities.10 The factors cause the cause of a prohibited transaction:11 a.
The substance is haram (haram lidzatihi); b.
Other than its substance is haram (haram li-ghairihi); 9 M. Dawam Rahardjo, Pengantar dalam Adiwarman Karim, Bank Islam, Analisis Fiqih dan Keuangan, (PT.
Rajagrafindo Persada, 4th Ed, Jakarta, 2010), xii 10 Zainuddin Ali, Hukum Perbankan Syariah, (Sinar Grafika, 2nd Ed, Jakarta, 2010), 20.
11 Adiwarman Karim, Bank Islam, Analisis Fiqih dan Keuangan, (PT.
Rajagrafindo Persada, 4th Ed, Jakarta, 2010), 30. c. The contract is uncompleted.
Islamic economic law relations generally begin with the contract.
Arrangement of contract for sharia economy has contained in Book II of KHES.
The existence of KHES has intended as a guide for Religious Court judges in examining and deciding economic disputes according to sharia principles.
KHES content arranged in 4 (four) books as a large group with 796 articles.
Of the four books referred to, Book I regulate the Subject of Law and Amwal, which consists of 19 articles, Book II regulates the Covenant with the most content, which amounts to 655 articles.
Book III on Zakat and Grants consists of 60 articles, and Book IV on Sharia Accounting totalling 62 articles.
The most substantial part of the KHES content regulates the contract contained in Book II with the division of Chapters totalling 29 and 655 articles.
Book II KHES have seen as describing the legal relationship originating from a contract and deeds or business activities based on sharia principles as referred to in Article 49 letter (i) of Law No.
3 of 2006.
When observed, KHES contains legal material content.
Material law has interpreted as a law that gives rights and burdens obligations as a basis for those who carry out Islamic economic transactions.
a. Akad In Islamic law, the agreement is called an agreement that originates from Arabic Al Aqd, which means binding or connecting.12 The essence of the agreement is not limited to what has stated, in the form of documents, but also which has made verbally.
"At law, however, a contract is more than just documents.
"13 Understanding the contract in positive law in Indonesia today can be found, among others; 12 Ahmad Abu Al Fath, quoted by Syamsul Anwar, Hukum perjanjian Syariah (Studi tentang teori Aqad dalam Fikih Muamalat), (PT.
Raja Grafindo Persada, Jakarta 2007), 68.
13 Benny S Tabalujan, Valerie Du Toit-Low, (Singapura Bisnis Law CommAsia Resources Pte Ltd, Singapore.
2003), 57 Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… | 133 1) Article 1 number 13 of Law No.
21 of 2008 concerning Islamic Banking; "A contract is a written agreement between a Sharia Bank or UUS and another party that contains the rights and obligations of each party following sharia principles.
2) Article 20 number 1 KHES; "A contract is a deal in an agreement between two or more parties to do or not do certain legal actions."
In Islamic law, to form a valid and binding contract, it must meet the terms and conditions of the contract as follows: a) The parties (al ‘aqidain); b) Statement of will (shiqhat aqad); c) The object of the contract (mahallul aqad); d) The purpose of the contract (maudhu’al aqad) b. Gashb dan Itlaf Gashb and Itlaf have regulated in Chapter XV of Book II KHES, which consists of five parts.
The first part is about the Pillars and Gashb Terms, namely from Article 391 to Article 401.
The second part regulates the seizure of fixed objects, namely from Article 402 to Article 404.
The third part is about seizing confiscated assets, namely Article 405 and 406.
The fourth part is about Direct Destruction of Assets, namely from Article 407 to Article 410.
Furthermore, the fifth part is the final part about Indirect Destruction of Assets, which have regulated from Article 411 to Article 412.
Chapter XV of KHES is entitled to Gashb and Itlaf.
Gashb is interpreted as "deprivation",14 while the meaning of Itlaf is explicitly not found in Chapter XV.
Nevertheless, in General Provisions of Article 20, number 16 of KHES, Itlaf is referred to as "destruction".
Likewise, the fourth part of Chapter XV is titled destruction, so that Itlaf is interpreted as vandalism.
This meaning is in line with what was conveyed by Wahbah Zuhaili.15 In Indonesian, Chapter XV of KHES is given the title of appropriation and destruction.
The first part governs the pillars and conditions, 14 See Article 391 of KHES 15 Wahbah Zuhaili, Figih Imam Syafii, Mengupas Masalah Fighiyah Berdasarkan Al Qur’an dan but what is found in the pillars of Gashb.
Explicitly, the arrangement regarding the Gashb terms is not found in KHES.
Pillars or elements of Gashb / appropriation are perpetrators of deprivation, victims of deprivation, spoiled assets, and deprivation.
What has interpreted as an act of deprivation is to prevent the victim from using wealth, including denying the existence of wadi'ah bih.16 The KHES determines sanctions for perpetrators of seizure, as stated in Article 393, namely: a.
Must return the property that has been confiscated if the asset is still in its power; b.
All costs related to transportation-related to the surrender of the spoil are the responsibility of the perpetrators of the seizure; c. Obliged to repair and or replace the damaged property that has been confiscated; d. Obliged to replace the property that has been confiscated if the asset has been lost or has been transferred; e. Substitution of assets can be done with the same assets or at a value.
Judging from the harmony, Gashb and Itlaf do not start with an agreement.
Gashb and Itlaf are not a contract nor relations based on sharia principles.
Gashb is a unilateral action, so it is not included as a transaction and also not an activity carried out with sharia principles.
Sharia economics are actions or business activities carried out according to sharia principles.
It can be said that Gashb and Itlaf do not meet the elements of sharia economic activities so it has not duly regulated in the Sharia Economic Law Compilation.
In general, Gashb and Itlaf can be matched with unlawful acts (Article 1365) of the Civil Code.
The KHES determines sanctions as a form of responsibility for Gashb and Itlaf perpetrators, in the form of returning, repairing, or replacing damaged, bearing the costs of surrender, and paying the price of depreciation.
Judging from the regulation of Gashb and Itlaf sanctions, they Hadis, Vol 2, (Almahira Publishing, Jakarta, 2008), 253 16 Wadi’ah bih is an entrusted property.
Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 134 | Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… do not constitute an offence.
If the perpetrator returns the spoils in the sense of surrendering the property that has been confiscated to the owner as of the victim of seizure, then the perpetrator has been freed from his responsibility.17 Article 397 KHES determines, "The perpetrators of deprivation have the right to complain to the (Religious) Court if the owner of the object refuses to accept the property that has confiscated."
This provision is unusual, considering that the perpetrators complained to the court.18 Normally a complaint is submitted to the investigator by the victim, of course, to report the perpetrators' actions that are against the law.
In Gashb and Itlaf, the perpetrators complained to the Religious Court.
It would be more appropriate according to the law if the owner filed a claim for rights in the form of tort against the law by asking for compensation.
Compensation for damages can be done directly, through a mediator and or court.19 The direct causes of damage or depreciation in the value of assets must be held responsible.
The judge has the right to decide about the perpetrators who are responsible if two indirect causes cause damage or depreciation.20 It has seen that seizure or vandalism activities are related to material rights.
The Gashb and Itlaf cannot start with an agreement because an agreement requires permission and qabul.
When the Gashb and Itlaf have declared as a contract, associated with the provisions of Article 1320 of the Civil Code regarding the validity of the agreement, especially paragraphs (3) and paragraphs (4), inevitably the agreement becomes null and void because the Gashb and Itlaf as the object of the agreement are contrary to the law, so the agreement is initially considered never exist.
It should have emphasized that Gashb and Itlaf are unilateral actions.
They are outside the contract and do not include 17 See Article 395 and Article 396, as well as Article 398 of KHES 18 Article 1 number 8 of KHES determines that the Court is a syar'iyah court / within the religious court environment.
Islamic economic activities.
Sharia economic activities have limited by the Elucidation of Article 49 letter (i) of the UU-PA.
Precisely the existence of Gashb and Itlaf is an act that is not following Islamic principles because it causes loss and damage to others.
Thus, the Gashb and Itlaf need not regulated in the Compilation of Sharia Economic Law.
When compared with the provisions in the Criminal Code, Gashb and Itlaf are not threatened with criminal penalties as regulated in Article 10 of the Criminal Code.
The use of the term perpetrators and victims in Gashb seems to make it an offence.
Deprivation in the provisions of the Criminal Code regulated in Article 368, which reads whosoever intends to benefit oneself or others unlawfully, forcing a person with violence or threat of violence, to give away something, which is wholly or partly have owned by that person or another person.
Falling in the Criminal Code has regulated in Article 406 to 412.
Destruction can be intentional or unintentional.
Destruction as an act against the right can mean destroying, making it unable to function, or eliminating other people's belongings in whole or in part.
The act of falling, according to the Criminal Code, is threatened with imprisonment or fines, while the destruction in the context of Gashb and Itlaf has threatened with claims for compensation for losses suffered.
In the Criminal Code, intentional or negligent acts have different criminal threats.
Whereas in Gashb and Itlaf, the damage done intentionally or due to negligence has the same form of responsibility, i.e., with compensation.
Thus, Gashb and Itlaf are not interpreted as an offence even though there is the phrase taking or damaging someone else's property without permission and without intending to own it.
Although the classification used is deprivation and destruction, the KHES does not contain provisions on Islamic economic crime because it has intended as a guide for judges in the Religious Court in resolving 19 See Article 411 20 See Article 412 Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… | 135 Islamic economic disputes with civil disputes.
Therefore, Gashb and Itlaf can be equated with the Act of Violating the Law as determined by Article 1365 of the Civil Code (onrechtmatege daad).
Authority of the Religious Court Regarding Gashb and Itlaf The Religious Court is one of the judicial environments under the Supreme Court in the justice system in Indonesia.
The Religious Court was formally legally first based on Law No.
7 of 1989, which has intended for people who are Muslim.
Initially, the authority of the Religious Court was limited only to certain civil cases, especially family law.
With Law No.
3 of 2006, there was a change to Law No.
7 of 1989, which gives more room for divine justice.21 Expansion by adding absolute competence to divine justice is not only limited to Islamic family law but also sharia economic transactions.
The expansion of authority is following the development of the law and the needs of the community, especially the Muslim community.
As expressed, Eugen Ehrlich22 that good law is a law that is following the law that lives in society (living law).
Ehrlich also stated that positive law would only be accurate if it is in harmony with the law that lives in society.
The Islamic economic case, which becomes the authority of the Religious Court, is found in Article 49 letter (i).
Elucidation of Article 49 letter (i): "Sharia economy is defined as actions or business activities carried out according to sharia principles, including sharia banks, sharia insurance, sharia reinsurance, sharia mutual funds, sharia bonds and sharia medium-term securities, securities sharia, sharia financing, sharia pawnshops, pension funds of sharia financial institutions, sharia businesses and sharia microfinance institutions."
The authority of the Religious Court in resolving Islamic economic disputes is not limited, as 21 Tuti Haryanti, ‘Kewenangan Peradilan Agama Dalam Penyelesaian Sengketa Ekonomi Syariah’ (2013) IX(1) Jurnal Tahkim, 77 22 Soerjono Soekanto, Pokok-Pokok Sosiologi Hukum, (PT.
Rajagrafindo Persada, Jakarta, 2005), stated in Article 49 (i).
With the phrase "sharia business", sharia economic disputes that develop in society can still be accommodated like digital financial disputes.
Although not explicitly mentioned in Article 49 (i).
Moreover, according to the principle, a judge is prohibited from rejecting a case, under the pretext that the law is absent or unclear.23 Islamic economic disputes as the absolute authority of the Religious Court based on Article 49 letter (i) of Law no.
3 of 2006 and strengthened by the Constitutional Court with Decision No.93 / PUU-X / 2012, dated August 29, 2013.
Thus, related to Islamic economic disputes, there is no debate related to the authority of the Religious Court.
Other courts outside the Religious Court is not authorized to settle Islamic economic disputes.
Nevertheless, related to offences or criminal acts in sharia economics such as embezzlement, fraud, and others remain the authority of the General Judiciary.
Islamic economic matters which become the authority of religious courts are only limited to civil matters.
The implementation of Islamic economic transactions has the potential to cause conflict between the parties.
Conflicts occur because of discrepancies between one party and another party.
The source of the conflict can originate from the agreement when one party does not fulfil what was initially agreed upon, which is legal language is often called a default.
Civil cases submitted to the Religious Court has formulated in the form of a lawsuit or petition.
Sharia economic disputes in the Religious Court can be formulated in the form of breach of contract violations or the form of tort against the law.
On the other hand, a dispute can also start with an act that violates the law, that is, an act that meets the criteria of Article 1365 of the Civil Code, that is, every act that carries a loss to another person, obliges the person who due to wrongly issued the loss to 42.
See Article 10 paragraph (1) Law No.
48 of 2009 concerning Judicial Power.
Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 136 | Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… replace it.
Four things must have fulfilled for illegal acts, namely: a.
The element of action (positive or negative); b.
There is an error; c. Causing loss; d. There is a causal relationship between actions and losses incurred.
The settlement of economic disputes by litigation is usually in the form of claims for compensation, which are requested to fulfill through a breach of a lawsuit or a violation of the law.
A breach of a claim that must be proven is that the legal relationship between the parties begins with a contract/agreement.
In the context of KHES, for a contract to be legally binding, the contract must meet the terms and conditions of the contract.
The Pillars (elements) of a contract consist of; Contracting parties, an object of the contract, the primary purpose of the contract, and the agreement.
An agreement is invalid if it conflicts with: a. Islamic Sharia; b.
Laws and regulations; c. Public order and/or d. Decency.
Provisions of Civil Code Book III regulates engagement (van verbintenissen).
The engagement has understood as a legal relationship (rechtsverhouding) in the field of property law.
According to the doctrine, an engagement is a legal relationship that occurs between two or more parties, which located in the field of property law, where one party is entitled to achievement, and the other party is obliged to fulfil that achievement.24 The engagement breeds related rights, which is the right to demand fulfilment only to the opposing party with whom the legal relationship has formed.25 According to Article 1233 of the Civil Code, each engagement is born either because of an agreement or the law.
One of the agreements that were born because of the law is an illegal 24 Mariam Darus Badrulzaman, et.al, Kompilasi Hukum Perikatan (in order to Embrace the Purna Bakti 70 Years Age), (Citra Aditya Bakti, Bandung, 2001), 1.
Lihat juga Riduan Syahrani, Seluk Beluk dan Asas-Asas Hukum Perdata, (Alumni Bandung, 2nd Ed, 2004), 196. act (onrechtmatige daad) that the agreement (contract) must give birth to a legal relationship, namely the existence of rights and obligations for the parties.
In addition to legal agreements (contracts) also arise because of the law.
The legal relationship that was born due to the law was caused by human actions, both according to law or violate the law (Dutchonrechtmatige daad, English-Tort).
Unlawful acts have interpreted as acts in the civil field.
Violations in the civil field, with sanctions as a form of responsibility, is in the form of compensation payments.
According to the Provisions of Book III of Civil Code, if the articles do not contradict the sharia principles also apply to sharia economics.
Thus, acts in the form of Gashb and Itlaf, including acts that violate the law that cause the obligation for perpetrators to compensate following Article 1365 of the Civil Code.
According to Ahmad Mujahidin,26 Islamic economic disputes can be classified into three (three), namely: a.
Disputes in the field of Islamic economics between financial institutions and Islamic financial institutions and their customers; b.
Disputes in the field of Islamic economics between financial institutions and Islamic financial institutions; c. Disputes in the field of sharia economics between people who are Muslims in which the agreement is explicitly stated that the business activities carried out have based on sharia principles.
Judging from the competence provided by the UU-PA, specifically Article 49, the authority of the Religious Court is tasked with and has the authority to examine, decide upon, and settle cases at the first level among people who are Muslims in the fields of: a. marriage; b. inheritance; c. will; d. grant; e. waqf; f. zakat; g. infaq; h. Sadaqah; and i. Islamic economy.
25 See Abdulkadir Muhammad, Hukum Perdata Indonesia, (Citra Aditya Bakti, 3th Ed, Bandung, 2000) 134 26 Ahmad Mujahidin, Prosedur Penyelesaian Sengketa Ekonomi Syariah di Indonesia, (Ghalia Indonesia, Bogor, 2010) p 43 Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… | 137 The UU-PA has specifically limited cases which are the absolute authority of the Religious Court.
Sharia economic disputes which become the authority of the religious court have also explicitly been determined, as specified in the Elucidation of Article 49 letter (i), although not limited in nature.
If seen Gashb and Itlaf as discussed earlier, it does not include Islamic economic activities, because it is not included in the economic system doctrine that forbids usury.
Gashb and Itlaf are actions or activities that cause loss and damage, but in substance do not include Islamic economic activities.
A lawsuit for violating Islamic economic law, based on Article 49 of the UU-PA, is the absolute authority of the religious court.
However, because the Gashb and Itlaf have not included in any act or business activity carried out according to sharia principles, the settlement of the Gashb and Itlaf is not included as the absolute authority of the religious court.
Claims for damages due to Gashb and Itlaf can be filed with compensation through lawsuits against unlawful acts submitted to the State Court.
The elements of unlawful acts on Gashb and Itlaf, as intended by Article 1365 of the Civil Code, have been fulfilled.
Thus, the Gashb and Itlaf perpetrators can be sued by the owner to return his property that is damaged, reduced, or lost.
According to Article 411 KHES, claims for the return and replacement of assets can be made directly, through mediators or the Religious Court.
However, when seen from the authority of the Religious Court granted by the Elucidation of Article 49 letter (i), then Gashb and Itlaf should not be included in the absolute authority of the Religious Court.
Law No.
48 of 2009 concerning Judicial Power in the preamble section states that judicial power has tasked with administering justice to uphold law and justice.
In the case of dispute resolution, the judge has tasked with carrying out the function of passing on judicially, by 27 See Wirjono Prodjodikoro, Asas-asas Hukum Perjanjian, (Sumur Bandung, 7th Ed, Jakarta, 1973), 13 28 Retnowulan Sutantio and Iskandar Oeripkartawinata, Hukum Acara Perdata Dalam examining the lawsuit by examining the evidence submitted by the plaintiff and the defendant then gives his decision.
The authority of the court in examining a lawsuit is to assess whether the legal relationship that occurs has fulfilled the legal elements, as the basis for the plaintiff's claim, so that the claim can be granted, be rejected, or unaccepted.
The claim is granted or rejected depending on how the plaintiff and the defendant prove the claim or rebuttal and denial of the legal relationship and the existence of rights and obligations between the parties.
Errors in formulating potential lawsuits are not acceptable (niet ontvankelijk verklaard / NO).
A lawsuit becomes NO because it does not meet formal requirements according to legal provisions and legislation.
In the Fundamentum Petendi, what must have explained and proven is the act or event of appropriation by the offender with the petitum of return and request for compensation.
Thus, the legal relationship is a relative right which can only be sued to the perpetrator, and in fact, does not constitute Islamic economic activity.
The implementation of procedural law has based on actiones in personam, which can only file against certain people,27 namely the perpetrators.
Because it is not a sharia economic activity, the court in absolute authority is not a Religious Court.
The authority to settle the Gashb and Itlaf is in the general court environment.
Efforts should be made so that the lawsuit is not submitted incorrectly,28 related to the authority to judge both absolutely and relatively.
In the case of filing a lawsuit, the plaintiff must pay attention that the lawsuit was filed appropriately related to several aspects, namely absolute authority, and the relative authority of the court.
Besides, it must also have considered precisely the fundamental legal relations of the parties, whether as an agreement (contract) or as an unlawful act.
Unlawful acts, according to Islamic law, are al-fi'lu al-dharr (harmful acts).29 Teori dan Praktek, (Mandar Maju, 9th Ed, Bandung, 2002), 11.
29 Ahmad Mujahidin, above n 26, 45 Brawijaya Law Journal Vol.7 No 1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 138 | Sufiarina, Sudrajat, Mahmud-Gashb and Itlaf Arrangements in KHES and… According to M. Yahya Harahap,30 there is a tendency for the practice to demand a precise formulation of the lawsuit between the fundamentals of the petendi (posita) and the petitum according to the dagvaarding/lawsuit system (regulated in Article 1 RV (Reglement of de Rechtsvordering Staatblaad 1847 52 Jo.
1849 61).
The basis of the lawsuit must be clear without any doubt about the legal relationship that will be requested fulfilment.
The Fundamentum Petendi is the basis of the examination for the assembly to resolve and decide upon disputes, as well as determine the burden of proof on the plaintiff to prove the arguments of the lawsuit, as determined by Article 1865 of the Civil Code and Article 163 of HIR (Herzien Inlandsch Reglement).
The article confirms that everyone who postulates a right or to confirm their rights or deny the rights of others is required to prove the rights or events (Actori incumbit onus probandi).
Related to lawsuits in filing a lawsuit against Gashb and Itlaf, if it has filed in a religious court, the assembly should have stated that the claim cannot be accepted because it is the absolute authority of the general court.
IV.
CONCLUSION Gashb and Itlaf do not include relationships based on sharia principles.
Thus, Gashb and Itlaf are not Islamic economic activities and have not based on contracts.
Elucidation of Article 49 letter (i) of Law no.
3 of 2006 concerning Religious Court determines that sharia economy is an act or business activity carried out according to sharia principles while Gashb and Itlaf do not belong to the economic system and even acts that tend to cause loss and damage.
Gashb and Itlaf, which cause loss and damage, can be prosecuted based on lawsuits in violation of the law in public justice.
Acts violating Islamic economic law are the absolute authority of the religious court.
However, because Gashb and Itlaf are not legal relations based on sharia principles, they are not automatically included in the 30 M. Yahya Harahap, Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian absolute authority of religious courts.
The court that has the authority to settle it is the State Court.
Considering that Gashb and Itlaf are not relationships based on sharia principles and not Islamic economic activities, they should not have regulated in the KHES.
As for the settlement of Gashb and Itlaf, they should have excluded from KHES.
If there are lawsuits against the law relating to Gashb and Itlaf submitted to the Religious Court, the judge should decide with an unacceptable suit (Niet Ontvankelijke verklaard).
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Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 237 MADE BY CHILDREN: THE EXPLOITATION OF CHILD LABOUR IN AGRICULTURE, INDUSTRY AND THE SERVICE SECTOR IN MAINLAND CHINA Cindy Nguyen 1 1 Law Student of Law School , University of Wollongong, Australia E-mail : cindy_dh_ngunyen@gmail.com Submitted: 2017-08-28 | Accept: 2017-09-25 ABSTRACT This research essay examines the exploitation of child labour in agriculture, industry and the service sector in Mainland China.
Child productivity in China has historically been essential to the survival of the family.
However, the globalized environment has drawn emphasis to the reality that children are exploited and subject to dangerous work conditions.
The aim of this research is to analyse the international legal framework and human rights conventions safeguarding the rights of the child.
This involved the primary analysis of the Convention on the Rights of the Child, the Minimum Age Convention, the Universal Declaration of Human Rights and the Worst Forms of Child Labour Convention.
The Procedure of the Conclusion of Treaties, Minors Protection Law, Provisions on the Prohibition of Using Child Labour, Regulations Banning Child Labour and Compulsory Education Law were critiqued to determine the effectiveness of China’s domestic legislation.
The results demonstrated that child labour is currently not prohibited under China’s domestic law, a consequence of ineffective implementation of international treaties.
To support this legal analysis, it evaluated academic research exploring the economic and cultural circumstances of China.
It was found that globalization, rapid economic growth, a lack of education and social and cultural constructions of ‘child’ and ‘childhood’ further contributed to the existence of child labour.
The significance of these findings is that it highlights the difficulty involved in changing legislation when the economic and cultural forces strongly dictate against it.
Children are ultimately unable to access justice as effectively as their adult counterparts do within China’s legal framework Keywords: child labour, children’s rights, international treaties, China, globalisation, filial piety I.
INTRODUCTION Child labour is a contemporary and significant human rights issue.
It is work performed by a child that is ‘likely to… interfere with [his or her] education, or to be harmful to [his or her] health or physical, mental, spiritual, moral or social development’.
1 Although historically in Asia, and more specifically in Mainland China a child’s productivity was essential to the family’s survival, an increasingly globalised legal practice and trading environment has highlighted the reality that children are exploited and subject to 1 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 32.1.
DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.06 mailto:cindy_dh_ngunyen@gmail.com Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 238 dangerous work conditions.
The purpose of this research essay will therefore be to examine the international framework and human rights conventions and its effectiveness in safeguarding the rights of the child.
By way of contrast, it will critique the legal, economic, social and cultural circumstances of China that continue to contribute to the exploitation of children, particularly in the agriculture, industry and service sector.
This includes an exploration of China’s ratification of international treaties and conventions and their ineffective domestic implementation, globalisation, 2 rapid economic growth, 3 limited education 4 and social and cultural constructions of ‘child’ and ‘childhood’.
5 It will analyse the costs of exploiting child labour through the lens of the child, the economy, the employer and the wider society.
In doing so, this research aims to provide insight into how the Chinese legal system operates within an international setting.
It will demonstrate how legal practice is consequently impacted, and how children are unable to access justice effectively as their adult counterparts within China’s current legal framework.
The 2 Erica G Polakoff, ‘Globalisation and Child Labour’ (2007) 23 Journal of Developing Societies 259, 260.
3 Sunwook Chung, ‘Explaining Compliance: A Multi-Actor Framework for Understanding Labour Law Compliance in China’ (2014) 68 Human Relations 237, 237.
4 Minli Liao and Jun Sung Hong, ‘Child Labour in the People’s Republic of China: An Ecological Systems Analysis’ (2010) 54 International Social Work 565, 572.
5 Polakoff, above n 2, 263. research questions guiding this analysis include: (1) How does the international treaties and human rights conventions impact on child labour rights in Mainland China?
(2) What are the effects of Mainland China’s domestic law on child labour rights?
(3) What are the effects of globalization, economic growth, limited education and social and cultural constructions of ‘child’ and ‘childhood’ on the existence of child labour?
II.
LEGAL MATERIALS AND METHODS The data obtained for this research paper is based on a primary analysis of the relevant provisions of the Convention on the Rights of the Child, 6 the Minimum Age Convention, 7 the Universal Declaration of Human Rights 8 and the Worst Forms of Child Labour Convention.
9 The research also examined China’s domestic law including the Procedure of the Conclusion of Treaties, 10 Minors Protection Law, 11 6 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
7 Minimum Age Convention, opened for signature 26 June 1973, C No 138 (entered into force 19 June 1976) (‘ILO Convention No 138’).
8 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3 rd sess, 183 rd plen mtg, UN Doc A/810 (10 December 1948).
9 Worst Forms of Child Labour Convention, opened for signature 17 June 1999, C No 182 (entered into force 19 November 2000) (‘ILO Convention No 182’).
10 Procedure of the Conclusion of Treaties (The People’s Republic of China) National People’s Congress, Order No 37, 28 December 1990 (‘The Treaty Procedure Law’).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 239 Provisions on the Prohibition of Using Child Labour, 12 Regulations Banning Child Labour 13 and Compulsory Education Law.
14 The rationale behind this research approach was to identify and examine both the international and domestic legal framework safeguarding the rights of the child.
Therefore, to support the interpretation of the relevant provisions, research into case law to demonstrate the law in action was conducted.
This proved unsuccessful however.
There were difficulties in accessing reported case law from Chinese legal databases.
Alternatively if cases were reported, there was the additional challenge in translating the case into the English language.
As the research was unable to provide commentary on the practical effects of the law in individual cases, it suffered limitations in this aspect.
As a result, secondary data obtained through various academic research was used to draw out the practical implications of the law.
Given the primary analysis focused on the interpretation of the legislation, this meant that the policy considerations underlying the legislation were often 11 Minors Protection Law (The People’s Republic of China) National People’s Congress, 1 June 2007.
12 Provisions on the Prohibition of Using Child Labour (The People’s Republic of China) National People’s Congress, Decree No.
364, 1 October 2002.
13 Regulations Banning Child Labour (The People’s Republic of China) National People’s Congress, 2002.
14 Compulsory Education Law (The People’s Republic of China) National People’s Congress, Order No 38, 12 April 1986. marginalized in the discussion.
To overcome this limitation and support the legal analysis, data was obtained from various academic research exploring China’s economic and cultural circumstances.
Although there was a sheer volume on studies exploring China’s cultural circumstances, a limitation was that there lacked an economic study of child labour in China, and hence official statistics of the number of child labourers.
This meant that the discussion concerning globalization and rapid economic growth in this research was quite general and lacked specific application to China.
A consequence of this limitation was that the vast majority of the secondary research sourced employed qualitative research methods.
This research therefore lacked any substantive quantitative data to support the findings.
III.
RESULT AND DISCUSSION International Framework on Child Labour and Human Rights Conventions Child labour is prohibited by international law and any contracting State that does not meet this international responsibility violates several international treaties and human rights conventions.
The international standards which safeguard the rights of the child consist of the Universal Declaration of Human Rights, 15 the UN Convention on the Rights of the Child 15 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3 rd sess, 183 rd plen mtg, UN Doc A/810 (10 December 1948).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 240 1989, 16 the ILO Convention No 138 on the Minimum Age for Admission to Employment and Work (‘ILO Convention No 138’) 17 and the ILO Convention No 182 on the Worst Forms of Child Labour 1999 (‘ILO Convention No 182’).
18 The Universal Declaration of Human Rights 19 states the fundamental rights and freedoms to which all human beings are entitled.
A child in particular is ‘entitled to special care and assistance’, 20 and has the ‘right to education’ 21 and the right to be free from exploitation 22 and slavery.
23 Although this declaration is not legally binding, it has been employed by States to set standards and guide the development of otherwise legally binding conventions safeguarding the rights of children.
24 The implication of this is that the extent of human rights and more specifically, the rights of the child continue to be challenged given the difficulties involved in enforcing a 16 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
17 Minimum Age Convention, opened for signature 26 June 1973, C No 138 (entered into force 19 June 1976) (‘ILO Convention No 138’).
18 Worst Forms of Child Labour Convention, opened for signature 17 June 1999, C No 182 (entered into force 19 November 2000) (‘ILO Convention No 182’).
19 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3 rd sess, 183 rd plen mtg, UN Doc A/810 (10 December 1948).
20 Ibid art 25.2.
21 Ibid art 26.
22 Ibid art 23.
23 Ibid art 4.
24 Bonny Ibhawoh, ‘Human Rights for Some: Universal Human Rights, Sexual Minorities and the Exclusionary Impulse’ (2014) 69 International Journal 612, 613. declaration that lacks legal authority.
Without a legally binding international declaration, ‘universal human rights remain [in principal] aspirational’, 25 as its influence internationally is dependent on its moral claims.
The UN Convention on the Rights of the Child 1989 26 in contrast is legally binding for ratifying States.
It recognises that human beings below the age of eighteen years are considered children, 27 and that as a vulnerable group in society, they should be afforded protection.
28 States contractually bound by this Convention agree to take ‘all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or [economic] exploitation’.
29 By having the Committee on the Rights of the Child examine the progress made by States in meeting their international obligations, 30 significant pressure is exerted on contracting States to implement the Convention into domestic law.
25 Ibid 614.
26 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
27 Ibid art 1.
28 Jean Grugel, ‘Children’s Rights and Children’s Welfare After the Convention on the Rights of the Child’ (2012) 13 Progress in Development Studies 19, 21.
29 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 19.
30 Nigel Thomas, ‘Children’s Rights: Policy into Practice’ (2011) 4 Centre for Children and Young People: Background Briefing Series 1, 12.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 241 The International Labour Organisation (‘ILO’) is a UN agency that sets and maintains labour and social standards through its legally binding conventions.
31 ILO Convention No 138 specifies the legal minimum age for admission to any type of employment or work as ‘not less than fifteen years’.
32 ILO Convention No 182 requires ‘[States] to take immediate action to prohibit and eliminate the worst forms of child labour’ 33 in pursuit of the long-term goal of the effective elimination of all child labour.
Where contracting States fail to implement their international obligations domestically, the International Labour Conference (‘ILC’) may decide on the sanction.
34 Despite the supervisory mechanisms in place to encourage contracting States to meet their international obligations, international treaties, even after ratification, accession or approval, do not automatically become part of national law and accordingly do not automatically have domestic legal effect.
35 Although symbolically contracting States assume international responsibility, it is in practical reality the actions of each 31 Nick Axford, ‘Exploring the Influence of International Governmental Organisations on Domestic Child Welfare Policy and Practice’ (2013) 37 Adoption & Fostering 57, 59.
32 ILO Convention No 138 art 2.
33 Axford, above n 22.
34 Sara Kahn-Nisser, ‘External Governance, Convention Ratification and Monitoring: The EU, the ILO and Labour Standards in EU Accession Countries’ (2014) 20 European Journal of Industrial Relations 383, 388.
35 Hanqin Xue and Qian Jin, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law 299, 300.
State at the domestic level, in the form of enacted laws, policies and regulations that are indispensable in fulfilling their international obligations.
Furthermore, provided they enter reservations and that these reservations do not prevent them from complying with the Convention more generally, contracting States do not have to comply with particular articles in treaties because of domestic circumstances that prevent them in doing so.
36 The effectiveness of international law is consequently limited by the need to have States specifically incorporate international obligations through their domestic legislation.
This calls into question the effectiveness of the international legal framework in meaningfully and practically safeguarding the rights of the child.
Causes of Child Labour It is estimated that 150 million children between the ages of five to fourteen worldwide are engaged in child labour.
37 In regards to the number of children engaged in child labour in China, there are no official statistics nor are there cases of child labour that have been reported to the ILO.
38 Despite a lack of statistical data and case law, what is known is that the existence of 36 Thomas, above n 21, 8.
37 UNICEF Global Databases, Child Labour: Current Status and Progress (2016) <https://data.unicef.org/topic/childprotection/child-labour/#>.
38 International Labour Organisation, Child Labour in China and Mongolia <http://ilo.org/beijing/areasof-work/child-labour/lang--en/index.htm>.
https://data.unicef.org/topic/child-protection/child-labour/ https://data.unicef.org/topic/child-protection/child-labour/ http://ilo.org/beijing/areas-of-work/child-labour/lang--en/index.htm http://ilo.org/beijing/areas-of-work/child-labour/lang--en/index.htm Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 242 child labour in the agriculture, industry and service sector is context-specific, 39 and requires a consideration of China’s legal, economic, social and cultural circumstances.
What this suggests is that there are many types of child labour, and there are different characteristics depending on whether the child is employed in the agriculture, industry or service sector.
For the purposes of this research, ‘agriculture’ includes ‘farming, fishing, aquaculture, forestry and livestock’.
40 The ‘industry’ sector includes ‘mining and quarrying, manufacturing, construction and public utilities’.
41 The ‘service’ sector consists of ‘wholesale and retail trade; restaurants and hotels; transport, storage and communications; finance, insurance, real estate and business services; and community as well as social personal services’.
42 One of the most distinguishing characteristics of agricultural work is that it is carried out in a rural environment.
The ‘family farm element in agriculture that is so bound up with culture and tradition makes it difficult to acknowledge that children can be exploited in such a setting’.
43 However, the 39 Liao and Hong, above n 4, 567.
40 International Labour Organisation, Child Labour in Agriculture <http://ilo.org/ipec/areas/Agriculture/lang-en/index.htm>.
41 International Labour Organisation, What is Child Labour <http://ilo.org/ipec/facts/lang-en/index.htm>.
42 Ibid.
43 Peter Hurst, ‘Health and Child Labour in Agriculture’ (2007) 28 Food and Nutrition Bulletin 364, 366. reality is that working in a rural environment poses major hazards to children, including long hours during planting and harvesting, physically demanding and strenuous work, the exposure to extreme temperatures, the exposure to dangerous tools and machinery as well as exposure to toxic pesticides.
44 These hazards can threaten a child’s physical, mental and emotional well-being.
If these hazards exist coupled with the fact that a child is prevented from attending school, this will constitute as child labour.
45 A characteristic of child labour in the industry sector is that work is carried out under the employment of a large or global corporation.
Like the agricultural sector, children working in the industry sector face long hours when mining or manufacturing, unsafe work conditions as well as exposure to hazardous tools and machinery.
However, the percentage of child labourers in this area is significantly smaller than the percentage of child labourers involved in agriculture.
46 This could be explained by the fact that being a global corporation, this inevitably draws the watchful eye of the international community.
There is greater international pressure placed on corporations to adhere to the international treaties and human rights conventions which safeguard the rights of the child.
By not complying with these 44 Ibid.
45 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 32.1.
46 International Labour Organisation, above n 40. http://ilo.org/ipec/areas/Agriculture/lang--en/index.htm http://ilo.org/ipec/areas/Agriculture/lang--en/index.htm http://ilo.org/ipec/facts/lang--en/index.htm http://ilo.org/ipec/facts/lang--en/index.htm Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 243 standards, corporations risk being condemned globally and risk the failure of their operations.
In the services sector, child labour is characterised by tasks undertaken at a more local level.
This may mean however, that cases of child labour go unreported because of a lack of cultural condemnation against the practice.
Coupled with this, is the lack of international awareness of such practices employed by local businesses or families.
The implication of this is that it is difficult to completely eliminate child labour in the service sector, particularly when a child’s productivity is culturally valued.
47 i. China’s Ratification of International Treaties and Conventions and its Domestic Implementation A fundamental tenet of Chinese law and its policies of foreign affairs has been the implementation of its international obligations.
48 As a result, China has ratified major international documents with regard to protecting children’s rights, including the Convention on the Rights of the Child 1989, 49 the ILO Convention No 138 and the ILO Convention No 182.
Currently, the Chinese Constitution is silent on the legal status of international treaties and their hierarchy in their domestic 47 Polakoff, above n 2, 263.
48 Xue and Jin, above n 26.
49 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
legal system.
50 A consequence of this is that there exist differing views concerning the legal effects of international treaties.
However, the Constitution does stipulate that the ‘State Council has the power to conclude treaties and agreements with foreign states, 51 the Standing Committee of the National People’s Congress (‘NPC’) 52 decides on the ratification of treaties, 53 while the President of the PRC ratifies treaties and agreements with foreign states’.
54 These same provisions are echoed in the Procedure of the Conclusion of Treaties (‘The Treaty Procedure Law’) 55 whereby the status of international treaties must be in accordance with this law and fulfil necessary domestic legal procedures’.
56 The implication of this is that ‘subject to domestic legal procedures, international treaties in which [China is a contracting State] have binding force in domestic law’.
57 This does not however include any reservations China has made.
The enforcement of treaty obligations and their domestic implementation therefore 50 Wuhong Shi, ‘The Application of Treaties in China: Practice, Problems and Prospects’ (2012) 1 Journal of International Law 114, 115.
51 [Constitution of the People’s Republic of China] art 89.
52 [Constitution of the People’s Republic of China] art 57.
53 [Constitution of the People’s Republic of China] art 67(14).
54 [Constitution of the People’s Republic of China] art 81.
55 Procedure of the Conclusion of Treaties (The People’s Republic of China) National People’s Congress, Order No 37, 28 December 1990 (‘The Treaty Procedure Law’).
56 Xue and Jin, above n 26.
57 Ibid.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 244 remains a significant challenge particularly because of the uncertainty that surrounds the status of international treaties in Chinese law.
Although China assumes international responsibility for upholding the treaty obligations, the realisation of such obligations is dependent on what their domestic legal procedures are, 58 which involves ‘ratification by the Standing Committee of the NPC, approval by the State Council, submission to the State Council for the record and submission to the Foreign Ministry for registration’.
59 There is much discretion within these procedures, 60 bringing into question the effectiveness of China’s domestic implementation of international obligations given the State Council may disprove the treaty obligations.
Along with China’s ratification of international treaties, China also has domestic legislation that protects the rights of the child.
The primary law is the Minors Protection Law, 61 which states that children have the ‘right to life, the right to development, the right to being protected and the right to participation… [where the State must] ensure the inviolability of [a child’s] lawful rights and interests’.
62 However, this legislation does not outlaw the employment of child labourers in service 58 Xue and Jin, above n 26.
59 Shi, above n 36, 125.
60 Ibid.
61 Minors Protection Law (The People’s Republic of China) National People’s Congress, 1 June 2007.
62 Ibid art 3. sectors, nor does it enforce the cap on working hours for children.
The effectiveness of China’s domestic legislation is called into question, as there remain enforcement difficulties, which allow child labour to persist in China.
ii.
Globalisation Globalisation has inherently increased and perpetuated the cycle of poverty in China, which has consequently made children more vulnerable to exploitation.
Globalisation is not a new concept 63 and involves removing barriers to free trade and the closer integration of national economies.
64 What is facilitated by this removal is foreign investment, allowing ‘foreign ownership and exploitation of national resources, [gearing] local economies toward export production… and [removing] the barriers to the influx of foreign goods onto the local market’.
65 Foreign investment is a significant indicator of economic development, which involves improving ‘economic opportunities, quality of human lives and reduction in poverty’.
66 However instead of reducing poverty, what globalisation has ultimately created and perpetuated is poverty worldwide, with China being no exception to this effect.
63 Muhammad Akram Ch et al, ‘Globalisation and its Impact on the World Economic Development’ (2011) 2 International Journal of Business and Social Science 291, 292.
64 Polakoff, above n 2, 262.
65 Ibid 277.
66 Ch, above n 49, 291.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 245 A consequence of poverty has been the inherent exploitation of workers in China, particularly children between the ages of five and fourteen years.
These children have been forced to labour on farms, in factories and as street vendors, whose economic contribution is essential to the survival of their families.
67 This is because the development of free trade agreements have equipped global corporations with the power to bypass and violate environmental protections, workplace health and safety regulations and child labour laws.
68 The effects of globalization do however vary depending on whether the child is employed in the agriculture, industry or service sector.
A child who is employed by a global corporation in the industry sector may draw greater international condemnation as opposed to a child working in a small family operation in the services sector.
As there may be foreign investors of the corporation, there is a greater likelihood that the corporation’s practices will gain the attention of the international community and potentially become investigated if claims are made as to the employment of child labour.
Regardless of the sector, increased poverty caused by an increasingly globalised trading environment has made children and their labour more vulnerable to being exploited.
67 Polakoff, above n 2, 262.
68 Ibid 278. iii.
Rapid Economic Growth China’s rapid economic growth requires a greater supply of labour, with the exploitation of child labour as a method of meeting this demand.
This rapid economic growth is attributed to the Open Reform policy that began in 1978, where China shifted from a centrally planned economy to a socialist market economy.
69 Through the provision of favourable investment and preferential policies, there was economic prosperity in certain regions.
70 A side effect of China’s rapid economic growth however has been pressure placed on the Chinese economy to meet the demand of not only supplying labour, but supplying cheap labour.
This result can be attributed to globalisation, where essential to reaping the highest profit requires global capital to seek out the cheapest labour force.
Child labour therefore maximises the profit of major global corporations and allows them to achieve cost competitiveness.
71 This is particularly the case with global corporations employing child labourers in China’s industry sector to mine minerals which are used in the production of major electronics.
By moving their production operations to China, corporations exploit children to source cheap labour as a human 69 Liao and Hong, above n 4, 569.
70 Ibid.
71 Michael Dunford et al, ‘Globalisation, Cost Competitiveness and International Trade: The Evolution of the Italian Textile and Clothing Industries and the Growth of Trade with China’ (2016) 23 European Urban and Regional Studies 111, 115.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 246 resource strategy to reduce employee cost.
Often these children’s wages are extremely low and long hours are worked without overtime pay or health benefits.
72 Furthermore, not only does child labour significantly lower employee cost, it creates a more ‘manageable’ 73 labour force.
Children are more likely to be unaware of the full extent of their rights and are therefore ‘less likely to object to conditions of work or employment practices’.
74 Although these aspects of economic growth prove attractive to global corporations and employers, it otherwise reduces children to mere assets in generating profit for companies, and nothing more meaningful or valuable.
Further, the degree to which the child labourer contributes to economic growth is dependent on whether the child is employed in agriculture, industry or the service sector, with the industry sector closely tied to foreign investment and hence economic development.
The greater and more global the scale of operation, the greater potential it has to benefit the economy.
Economic growth in China is ultimately premised on the exploitation of child’s rights.
iv.
Limited Education Child labour participation in China is positively correlated with low levels of 72 Polakoff, above n 2, 270.
73 Ibid 271.
74 Ibid 270. education.
Although the economic reform stimulated greater investment in education in order to produce highly skilled workers, China’s decentralised fiscal system resulted in rural schools in Inland and Western regions receiving minimal financial support from the central government.
75 This is in contrast to urban schools in the Eastern region, which received greater financial support.
A ‘lack of educational resources, underqualified teachers and substandard school facilities gradually led to increasing numbers of children leaving school, where they had little or no access to adequate educational resources’.
76 A consequence of this is that children have few options other than to work to survive.
Against the background of an increasingly globalised educational practice, China has ‘been exploring a development path with unique Chinese characteristics… and [seeking] convergence and coupling mechanism of a combination of both Chinese and Western styles [of education]’.
77 Although the landscape of China’s educational development has improved to overcome the disparity in education between rural and urban areas through Compulsory Education Law, 78 75 Liao and Hong, above n 4.
76 Ibid.
77 Zhongjing Huang, Ting Wang and Xiaojun Li, ‘The Political Dynamics of Educational Changes in China’ (2016) 14 Policy Futures in Education 24, 25.
78 Compulsory Education Law (The People’s Republic of China) National People’s Congress, Order No 38, 12 April 1986.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 247 whereby children must have nine years of compulsory education, the transition has been challenged by the tension between tradition and modernisation.
Chinese education has been modernised through the ideals of ‘discovery and innovative ideas’.
79 However, ideology and more specifically traditional Chinese values of ‘jing’, that is, obedience and family allegiance are inevitably embedded in and enacted in schooling through explicit and implicit curricula.
80 The implication of this is that despite educational improvements for children both in rural and urban regions, children may be propelled to leave school to contribute economically to their family’s survival as a result of cultural values.
v. Social and Cultural Constructions of ‘Child’ and ‘Childhood’ ‘An individual may be considered a child in one culture, but an adult in another, with radically different responsibilities and expectations’.
81 This is the case in China, where the meaning of ‘child’ and ‘childhood’ are embedded in the socioeconomic and cultural contexts of traditional China, 82 which allow child labour to exist.
Historically, families in China relied on agricultural labour productivity that involved all household members.
Such 79 Huang, Wang and Li, above n 63.
80 Fengshu Liu, ‘Negotiating the Filial Self’ (2008) 16 Nordic Journal of Youth Research 409, 418.
81 Polakoff, above n 2, 263.
82 Ibid.
work was not deemed exploitative, but rather, essential for the family’s survival.
83 Although a child in China is considered as someone under the age of eighteen 84 and the minimum legal working age is sixteen years old, 85 Confucian family values, which inform the relationships within the familial system, strongly override 86 and consequently define a child’s role and responsibility in society.
These circumstances provided the conditions for the development of filial piety, 87 which prescribes the relations and obligations between parents and children.
88 Filial piety perpetuates child labour in China given the importance of Confucian values in traditional Chinese families.
It has two distinct meanings, reciprocal filial piety and authoritarian filial piety.
89 Reciprocal filial piety or ‘xiao’ requires children to reciprocate by caring for parents in later life; it ‘entails gratitude and willingness to repay 83 Liao and Hong, above n 4, 568.
84 Minors Protection Law (The People’s Republic of China) National People’s Congress, 1 June 2007, art 2.
85 Provisions on the Prohibition of Using Child Labour (The People’s Republic of China) National People’s Congress, Decree No.
364, 1 October 2002, art 6.
86 Yang Hu and Jacqueline Scott, ‘Family and Gender Values in China: Generational, Geographic and Gender Differences’ (2014) 37 Journal of Family Issues 1267, 1269.
87 Xuewen Sheng and Barbara H. Settles, ‘Intergenerational Relationships and Elderly Care in China’ (2006) 54 Current Sociology 293, 299.
88 Kuang-Hui Yeh et al, ‘Filial Piety in Contemporary Chinese Societies: A Comparative Study of Taiwan, Hong Kong and China’ (2013) 28 International Sociology 277, 278.
89 Ibid 277.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 248 one’s parent’s care and sacrifice’.
90 ‘Xiao’ is particularly important in the context of agriculture, where growing old meant the loss of production capability, and elderly parents.
Children would therefore voluntarily perform work to help support their family, explicitly and implicitly demonstrating their love and care for their parents.
Authoritarian filial piety or ‘jing’ obliged children to be thankful to their parents for their care, signifying respect for and obedience to the elderly.
91 This subsequently constituted the moral imperative to observe ‘xiao’ in a child’s conduct and way of life.
These values help explain why children in less wealthier families voluntarily engage in labour to support their family financially.
Is it the persistence of moralism in Chinese law 92 that strongly influences a child to have this ultimate virtue of filial piety as an essential way of living.
As a consequence, these cultural values effectively deny children their childhood.
In Western society, there is a tendency to attach more significance to the term ‘childhood’, ‘a state where the child can experience freedom and pleasure, but is at the same time protected from the harsh reality of the outside world, preserving the 90 Ibid.
91 Hu and Scott, above n 72, 1270.
92 Philip C. C. Huang, ‘Morality and Law in China, Past and Present’ (2015) 41 Modern China 3, 10. child as innocent of adult worries’.
93 However, through the lens of traditional China, the childhood experience may be different because of these cultural and religious values.
As a result, a child’s role and obligations in China will differ from that of another culture, because the term ‘child’ and ‘childhood’ varies depending on culture and society.
Consequences of Child Labour Child labour effects not only the child, but also the Chinese economy, the global corporations that employ the labour of children and the wider community.
What differs however is the extent of detriment that child labour can cause to each party.
i.
The Child The effects of child labour are felt greatest on the child being exploited.
Longterm detriment is caused to the child’s physical, mental and emotional wellbeing.
Child labourers in agriculture and the industry sector suffer great physical injury as often they ‘endure excessive and inappropriate hours of exhausting work that is performed under unhealthy and often dangerous conditions’.
94 Particularly in agriculture, children frequently are exposed to pesticides and suffer from heat exhaustion and other illnesses related to insufficient or 93 Sharon Brookshaw, ‘The Material Culture of Children and Childhood’ (2009) 14 Journal of Material Culture 365, 366.
94 Polakoff, above n 2, 267.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 249 contaminated water and lack of sanitation.
95 What results is a child who is malnourished and has growth deficiencies.
96 In a similar manner, child labour traumatically affects a child’s mental and emotional wellbeing.
They are likely to suffer from emotional abuse by their employers 97 and experience emotional difficulties caused by excessive pressure at work and high expectations at home.
98 Furthermore, the demanding nature of the work itself has an immense impact on a child’s social and educational development.
99 It can interfere with their schooling, and can eventually lead to the child leaving their educational endeavours behind in favour of working to contribute to their family’s survival despite extremely low wages.
The result is that the child is unable to develop the necessary interactive and cognitive skills necessary for a healthy life.
Children need to build personal positive relationships in order to have self confidence, and spending long hours at work deprives children from developing these relationships.
As a result, child labourers 95 Ibid.
96 Paola Roggero et al, The Health Impact of Child Labour in Developing Countries: Evidence from Cross-Country Data (2007) National Center for Biotechnology Information <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1 781398/>.
97 Liao and Hong, above n 4, 567.
98 Orna Naftali, ‘Recovering Childhood: Play, Pedagogy, and the Rise of Psychological Knowledge in Contemporary Urban China’ (2010) 36 Modern China 589, 593.
99 Polakoff, above n 2, 267. can experience depression.
Child labour can ultimately deprive the child’s identity.
ii.
The Economy Child labour has economic value, in which it is low cost labour and makes it attractive for foreign investment and business expansion.
100 It is low cost labour as particularly in the industry and service sectors, children that work are mostly unskilled.
101 This has the potential to otherwise reduce adult wages.
As a result, children are substituted for adult labourers and increase their rate of labour force participation.
The existence of child labour therefore has a negative long-term effect on China’s economic growth, labour market, foreign investments and broader measures of human development.
Unsustainable economic growth in China perpetuates poverty, which allows child labour to exist.
By interfering with the accumulation of human capital, child labour reduces the adulthood labour market productivity of child workers, which ultimately discourages growth and development economically.
102 Without sustained economic growth, there are weak employment opportunities, and this acts as a disincentive for Chinese families to invest in 100 Elena Samonova, ‘Socioeconomic Impacts of Child Labour’ (Paper presented at The 2 nd Global Virtue Conference, Free University Berlin, 2014) 2.
101 Ibid.
102 Nardos Kebreab Tesfay, Child Labour and Economic Growth (Graduate Thesis, University of Saskatchewan, 2003) 2. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1781398/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1781398/ Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 250 their child’s education.
This slows down human development, which is required for economic prosperity.
Furthermore, by reducing adult wages, child labour results in households becoming more reliant on children as income earning assets.
103 This is particularly significant in less wealthier Chinese households.
In China, there is already strong dependence on children for financial security and old-age support as children by cultural virtue are required to uphold filial piety.
Ultimately, the economic entwined with the cultural perceptions towards the value of a child’s productivity allows child labour to persist in China, having severe negative consequences for China’s economic growth and human development.
iii.
The Employer The ramifications of employing child labourers are quite severe.
Employers, including global corporations who operate in China ‘who use child labour, shall be fined by the labour protection authorities at the rate of 5000 yuan per month for each child labourer used’.
104 Furthermore, if an employer fails to make amends after being ordered by labour protection authorities to do so, the employer will be fined 10,000 yuan per month for each child labourer as well as have their business license 103 Ibid.
104 Regulations Banning Child Labour (The People’s Republic of China) National People’s Congress, 2002, art 6. revoked.
105 Alternatively, the ‘persons directly in charge and other personnel who carry direct responsibility [of employing child labour] shall be given administrative punishment involving demotion or dismissal or disciplinary punishment’.
106 Although China’s domestic legislation provides for this penalty, there remains the challenge of extensive monitoring of enterprises and enforcing such legislation.
Legal enforcement may be weakened in favour of attracting foreign capital and increasing exports.
This is because cheap labour, satisfied by child labour, is an ‘indispensable asset in enhancing China’s international competitiveness’.
107 Not only do enterprises face legal consequences, they also face condemnation from the international community.
Consumers are quick to withdraw their support from global corporations that employ child labour, negatively affecting their profitability.
The corporation’s brand and reputation 108 is consequently damaged, and the effects are long-term.
iv.
The Wider Community The practice of child labour compromises the future of the child’s family and their wider community.
Low levels of 105 Ibid.
106 Ibid.
107 Joseph Yu-shek Cheng, King-lun Ngok and Yan Huang, ‘Multinational Corporations, Global Civil Society and Chinese Labour: Workers’ Solidarity in China in the Era of Globalisation’ (2011) 33 Economic and Industrial Democracy 379, 380.
108 Ibid 391.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 251 education and poverty 109 reduce long-term employment prospects.
This is because children sacrifice their education in order to work and provide support for their family, diminishing a child’s future ability to acquire a higher quality job and the wages that accompany it.
110 In this way, the cycle of poverty and labour is reconstructed in the future generations.
Furthermore, child labour is associated with the development of poor health, as children are exposed to dangerous work conditions and chemicals when working in agriculture or the industry sector.
What can occur is ‘premature illness and disability in the individual as well as the community, through… environmental contamination’.
111 The effects child labour has on the child, on the economy and on employers ultimately contributes to the social exclusion of children in society.
There lacks a strong and harmonious Chinese community because ‘child labour prevents [the transformation of] existing power relations and [reinforces] the marginalised status of [children]’.
112 III.
CONCLUSION Children are unable to access justice effectively as their adult counterparts within 109 Anaclaudia G. Fassa, David L. Parker and Thomas J. Scanlon, Child Labour: A Public Health Perspective (Oxford University Press, 2010) 40.
110 Ibid.
111 Ibid 41.
112 Samonova, above n 86.
Mainland China’s current legal framework.
Their human rights continue to be violated as child labouring in agriculture, industry and the service sector persists in a society that does not legally and practically implement the international standards safeguarding children’s rights.
The research findings have demonstrated that this is the reality despite China’s ratification of the UN Convention on the Rights of the Child 1989, 113 the ILO Convention No 138 and the ILO Convention No 182.
What allows child labour to persist is the fact that even though China has ratified these international treaties, it does not automatically become a part of domestic law.
This can be seen by the lack of any provision in The Minors Protection Law, 114 which outlaws the employment of child labourers in China.
The effectiveness of China’s current legal framework in prohibiting child labour is called into question, as well as their ability to meaningfully fulfill their international obligations.
The causes of child labour cannot be limited to the ineffectiveness of China’s legal framework alone.
The findings on globalisation, economic growth, limited education and social and cultural constructions of ‘child’ and ‘childhood’ demonstrate that child labour persists as a 113 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
114 Minors Protection Law (The People’s Republic of China) National People’s Congress, 1 June 2007.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 252 result of the tension in maintaining Chinese culture in China’s legal system and the influence of international legal standards.
Such consequences merit further exploration in future research.
REFERENCES Journal Articles Axford, Nick, ‘Exploring the Influence of International Governmental Organisations on Domestic Child Welfare Policy and Practice’ (2013) 37 Adoption & Fostering 57 Brookshaw, Sharon, ‘The Material Culture of Children and Childhood’ (2009) 14 Journal of Material Culture 365 Ch, Muhammad Akram et al, ‘Globalisation and its Impact on the World Economic Development’ (2011) 2 International Journal of Business and Social Science 291 Cheng, Joseph Yu-shek, King-lun Ngok and Yan Huang, ‘Multinational Corporations, Global Civil Society and Chinese Labour: Workers’ Solidarity in China in the Era of Globalisation’ (2011) 33 Economic and Industrial Democracy 379 Chung, Sunwook, ‘Explaining Compliance: A Multi-Actor Framework for Understanding Labour Law Compliance in China’ (2014) 68 Human Relations 237 Dunford, Michael et al, ‘Globalisation, Cost Competitiveness and International Trade: The Evolution of the Italian Textile and Clothing Industries and the Growth of Trade with China’ (2016) 23 European Urban and Regional Studies 111 Grugel, Jean, ‘Children’s Rights and Children’s Welfare After the Convention on the Rights of the Child’ (2012) 13 Progress in Development Studies 19 Hu, Yang and Jacqueline Scott, ‘Family and Gender Values in China: Generational, Geographic and Gender Differences’ (2014) 37 Journal of Family Issues 1267 Huang, Philip C. C., ‘Morality and Law in China, Past and Present’ (2015) 41 Modern China 3 Huang, Zhongjing, Ting Wang and Xiaojun Li, ‘The Political Dynamics of Educational Changes in China’ (2016) 14 Policy Futures in Education 24 Hurst, Peter, ‘Health and Child Labour in Agriculture’ (2007) 28 Food and Nutrition Bulletin 364 Ibhawoh, Bonny, ‘Human Rights for Some: Universal Human Rights, Sexual Minorities and the Exclusionary Impulse’ (2014) 69 International Journal 612 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 253 Kahn-Nisser, Sara, ‘External Governance, Convention Ratification and Monitoring: The EU, the ILO and Labour Standards in EU Accession Countries’ (2014) 20 European Journal of Industrial Relations 383 Liao, Minli and Jun Sung Hong, ‘Child Labour in the People’s Republic of China: An Ecological Systems Analysis’ (2010) 54 International Social Work 565 Liu, Fengshu, ‘Negotiating the Filial Self’ (2008) 16 Nordic Journal of Youth Research 409 Naftali, Orna, ‘Recovering Childhood: Play, Pedagogy, and the Rise of Psychological Knowledge in Contemporary Urban China’ (2010) 36 Modern China 589 Polakoff, Erica G, ‘Globalisation and Child Labour’ (2007) 23 Journal of Developing Societies 259 Sheng, Xuewen and Barbara H. Settles, ‘Intergenerational Relationships and Elderly Care in China’ (2006) 54 Current Sociology 293 Shi, Wuhong, ‘The Application of Treaties in China: Practice, Problems and Prospects’ (2012) 1 Journal of International Law 114 Thomas, Nigel, ‘Children’s Rights: Policy into Practice’ (2011) 4 Centre for Children and Young People: Background Briefing Series 1 Xue, Hanqin and Qian Jin, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law 299 Yeh, Kuang-Hui et al, ‘Filial Piety in Contemporary Chinese Societies: A Comparative Study of Taiwan, Hong Kong and China’ (2013) 28 International Sociology 277 Books Fassa, Anaclaudia G., David L. Parker and Thomas J. Scanlon, Child Labour: A Public Health Perspective (Oxford University Press, 2010) Legislation Compulsory Education Law (The People’s Republic of China) National People’s Congress, Order No 38, 12 April 1986 [Constitution of the People’s Republic of China] Minors Protection Law (The People’s Republic of China) National People’s Congress, 1 June 2007 Procedure of the Conclusion of Treaties (The People’s Republic of China) National People’s Congress, Order No 37, 28 December 1990 (‘The Treaty Procedure Law’) Provisions on the Prohibition of Using Child Labour (The People’s Republic Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 254 of China) National People’s Congress, Decree No.
364, 1 October 2002 Regulations Banning Child Labour (The People’s Republic of China) National People’s Congress, 2002 Conventions Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) Minimum Age Convention, opened for signature 26 June 1973, C No 138 (entered into force 19 June 1976) Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3 rd sess, 183 rd plen mtg, UN Doc A/810 (10 December 1948) Worst Forms of Child Labour Convention, opened for signature 17 June 1999, C No 182 (entered into force 19 November 2000) Other International Labour Organisation, Child Labour in Agriculture <http://ilo.org/ipec/areas/Agriculture/l ang--en/index.htm> International Labour Organisation, Child Labour in China and Mongolia <http://ilo.org/beijing/areas-ofwork/child-labour/lang--en/index.htm> International Labour Organisation, What is Child Labour <http://ilo.org/ipec/facts/lang-en/index.htm> Roggero, Paola et al, The Health Impact of Child Labour in Developing Countries: Evidence from CrossCountry Data (2007) National Center for Biotechnology Information <https://www.ncbi.nlm.nih.gov/pmc/ar ticles/PMC1781398/> Samonova, Elena, ‘Socioeconomic Impacts of Child Labour’ (Paper presented at The 2 nd Global Virtue Conference, Free University Berlin, 2014) Tesfay, Nardos Kebreab, Child Labour and Economic Growth (Graduate Thesis, University of Saskatchewan, 2003) UNICEF Global Databases, Child Labour: Current Status and Progress (2016) <https://data.unicef.org/topic/childprotection/child-labour/#> http://ilo.org/ipec/areas/Agriculture/lang--en/index.htm http://ilo.org/ipec/areas/Agriculture/lang--en/index.htm http://ilo.org/beijing/areas-of-work/child-labour/lang--en/index.htm http://ilo.org/beijing/areas-of-work/child-labour/lang--en/index.htm http://ilo.org/ipec/facts/lang--en/index.htm http://ilo.org/ipec/facts/lang--en/index.htm https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1781398/ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1781398/ https://data.unicef.org/topic/child-protection/child-labour/ https://data.unicef.org/topic/child-protection/child-labour/
DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.03 | 45 Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence Subir Kumar Roy Department of Law And Secretary (Addl.
Charge) Faculty Council for Postgraduate Studies in Arts & Science, Bankura University, Bankura, Email: dr.roysubir@gmail.com Submitted : 2020-01-30 | Accepted : 2020-04-02 Abstract: This article intends to discuss how gender affects women’s and men’s experience of disability and their basic human rights.
It discusses at length about the Feminist Disability Study and its relation with the feminist study to find out a clear conception about the gender disability.
This article arduously searches whether the Issues of disability has any linkage with the theory of right and exclusions or it is a kind of cultural interpretation of human variation.
Disabled woman suffers double discrimination which is quite different from the experiences of a disabled man.
This article intends to critically scan the whole International legal mechanism and the Indian legal system relating to the disability of women and also suggests how to improve the situation.
The approach of the article is primarily doctrinal based on an analysis of comparative legal structure, policies, governmental documents, judicial pronouncements, etc.
This article advocates in favour of collaborative governance to address the issue of Women’s disability properly.
Keywords: feminist; disabled woman; human right; protective discrimination; development I.
INTRODUCTION There exists a very proximate and close relationship between feminist studies and feminist disability studies.
As feminist study critically discusses with the gender issues as a whole similarly feminist disability studies, also want to axe the very stereotype attitude of the society about people with disabilities.1 Feminist disability studies intend to understand the issues of disability in the context of rights and exclusions.
It argues that disability is neither inherent inferiority 1 Kim Q.
Hall, ‘Feminism, Disability, and Embodiment’, (2020) 14(3) NWSA Journal, 10. nor related to any mental or physical ailment or any kind of deformation, rather it is a kind of cultural interpretation of human variation.2 They consider disability as a socially constructed identity to regulate the issues like caretaking and caregiving, health v/s normalcy, reproductive rights, rights related to abortion, property issues, protection V/s exclusion, etc.
The set idea of the society the construed disabled as a group and portrays a negative image of them whereby they are 2 Rosemarie Garland-Thomson, ‘Feminist Disability Studies’, (2005) 30(2, Winter) Signs, 1557. mailto:dr.roysubir@gmail.com Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 46 | Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence ignored and deprived of the good of the society.
In various studies, though the very least study has taken place in the above field, it has been found that the conditions of disabled women are considerably worse off in comparison with the disabled men.3 The way the issue of gender discrimination works in the matter of Man and Woman, in the same way, it works in the matter of disability.
Biological differences based on sex are natural but the role that has been assigned based on gender is not natural.
Gender relates to the social or cultural upbringing of women.
Biological differences do not establish that women can find there all satisfaction or completion of personality in being wives and mothers.
Society and religion compel women to succumb to their ‘natural’ morality.
On the other hand, the law also coerces her to accept the status of inferiority.
It is the men chauvinism that controls women’s reproductive abilities and sexualities, her right and right to control the property, etc.
Hence, it is axiomatic that disabled women have had to fight twice as hard as able women for maintaining their existence and integrity.
Disabled women are considered as dependable, incompetent, not fit for marriage and procreation of child and even not proper to enjoy the minimum civil, political, social, cultural and economic rights.
They are kept in the non-powerful group and compelled to adjust with the dominant group even at the cost of their dignity and integrity.
Feminist disability studies address the gender issues as well as practical experiences of a disabled received from the society so as to innovate strategy and mechanism to establish and enforce their human rights and also to change the outlook of the society in this regard.
It is axiomatic that disability is experienced by the man and women differently in a different part of the globe and more or less such discourse of life and differences are shaped and determined by the 3 Department of Economic and Social Affairs Unitec Nations, Disability and Development Report 2018, (United Nations, New York, 2019), 7.
4 Ruthie Bonan Gomes, Paula Helena Lopes, et al, ‘New Dialogues in Feminist Disabilities Studies’, (2019) 27(1) Estudos Feministas, 9. culture prevails in the society.
Several imperative studies show that the sufferings of disabled women are graver than disabled men.
Disabled women, in comparison, with disabled men, are more economically dependent and receive less care and support either from the family or the society as a whole.
The social structure as well as the bias orientation of the society crippled down the development and natural growth of disabled women.
The insensitive attitude of society makes their position more vulnerable, and they are left to face more physical, sexual and psychological violence, and abuse.
The high rate of illiteracy, lack of technical skills, and the myth and fear concerning their disability along with the social and cultural restrictions and taboos completely alienated them from the mainstream of the society including the market system, make them immobile, housebound.
This led to double discrimination on disabled women and becomes an object of study under feminist disability studies.4 Many similarities and dissimilarities are there in ‘Feminist Studies’ and ‘Feminist Disability Studies’.
The plight of the women in the society is highlighted under both the studies and both studies the demand for greater autonomy, extending opportunities and proper development of the women because it is imperative that the patriarchal society never considered women at par with the male and always denied the ‘right to equality’ and equitable treatment to them.
Beauvoir said one is not born a woman, but rather becomes one5.
On the other hand, the exponents like Geddes, Thompson, etc.
are there who believe the gender identity grows from biological nature which considers men are inherently ‘catabolic’ and women as ‘anabolic’.
While male sex is bestowed with the adjectives like assertiveness, independence, confidence, activeness, aggressiveness, enterprise, impersonality, 5 Babatunde, Ekundayo B. and Babatunde E. Durowaiye.
‘The Conception of ‘Sex’ and ‘Gender’ as Background to Inequities Faced by Women’ (2015) 7(8 March) The Journal of Pan African Studies, 64-79.
English.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence | 47 and recklessness, the female sex is with the terms like passivity, submissiveness, emotion, caring, gentleness, warmth, sensitivity, receptiveness, expressiveness, and biological economy6.
The above adjectives are purposefully used to place the women an inferior position in the equation of division of labour.
Women were denied to live with dignity in the name of protecting their dignity and even denied or controlled their right to the body, right to reproduction or right to sexuality.
Feminism Challenges the age-old belief system of the society that females are born weak and less capable than male members of society.
Similarly, feminist disability studies hammer on our very thinking about people with a disability that they are incapable of their body and mind.
It portrays disability in terms of rights and exclusion.
Like the concept of gender, the existing perception about disability is also construed by society.
As per the feminists, the women experience their own body are always mediated by constructions, associations, and images which most patriarchal socio-cultural formations accept and endorse7.Like this, the experience of disability is also perceived by socio-cultural constructions8.
Gender issues certainly have an impact on a person’s experience of disability.
II.
LEGAL MATERIAL AND METHODS This article has primarily followed the analytical method and has undergone comparative legal study to find out the real scenario of women with disabilities.
Mainly based on secondary data issued from the different international and national organisations of public interests, Governments, and Governmental agencies and by studying both qualitative and quantitative matrix this article has strived to understand the interconnection of gender and disability and also its present nature.
This article is mainly concerned with the human 6 Ibid.
7 Nandini Ghosh, ‘Embodied Experiences: Being Female and Disabled’, (2010) 45(17 April) Economic and Political Weekly, 24-30, 2, rights issues of disabled women and to realize the matter it has followed the doctrinal method and revisited the prevailing legal structure, policies, governmental documents, judicial pronouncements, etc.
This article advocates in favour of collaborative governance to address the issue of Women’s disability.
III.
RESULT AND DISCUSSIONS Disabled Women’s RightA Serious Human Right Issue Though the consciousness about the rights of the disabled is gradually developing among the people, especially in civil society and human rights enforcement groups but still the society at large is either ignorant or indifferent about the fact that how the gender affects the experiences of disability of man and women differently.
It is axiomatic that the experiences of disabled men and women are not the same, and the reasons for the above are deeply embodied in the culture of human society.
Both ‘gender’ and ‘disability’ is a socially construed concept.
The society portrays and institutionalised both the body of ‘women’ and ‘disabled’ in a particular form that influences their experiences and interactions.
Based on its socio-cultural equations, the society shapes certain images of gendered as well as ablebodied and thereafter those images are institutionalised by the state agencies.
So lots of similarities are there in between the gender and disability issues and which have also been accepted by the exponents of feminism.
All disabled persons irrespective of gender issues share constraints like marginalisation, isolation, social exclusion, discrimination, deprivation of basic amenities of life, and denial of basic human rights.
But at the same time, we have to keep in mind that disabled women in addition to their sufferings for being disabled, experience all those discriminations that a woman suffers on the ground of sex.
So a disabled woman suffers double discrimination which is quite different from <http://www.jstor.org/stable/25664386> Accessed: 25-06-2018 06:51 UTC.
8 Ibid, 2. http://www.jstor.org/stable/25664386 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 48 | Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence the experiences of a disabled man.9 Various studies reveal that in comparison with the disabled men, the sufferings of disabled women are grave10.
They suffer a worse form of poverty and isolation; face more difficulty in getting mainstream services and rehabilitation, and prone to more sexual violence and abuse.
So the experiences of life to disabled women are bitterer than disabled men.
Disabled women are considered as a burden to the family.
Still, a majority of family members, as well as the society at large, never consider them human beings of their parlance, always they are underestimated and deprived of getting an education, proper health care, and basic needs of their life.
Still, the society considers that a disabled woman is not fit for marriage and this childish idea comes from their preconceived notions that either they are not able for procreation of child or will not be dependable for the rearing of the child.
This attitude of society completely crippled down the possibility of disabled women to make them self-sufficient and to explore their potentialities.11 On the other hand, the above attitude of the society and the family members changes completely while engaging them in domestic activities because they are not given the price or proper price for their labours.
This social structure mentored the mind of the disabled women that they are surviving at the mercy of their so-called able family members and they should not bother or ask for the implementation of their rights: “Disability diminishes sharply their often inferior roles, even in their own households.
The stigma of disability, with its myths and fears, increases their social isolation.
When no rehabilitation facilities are available, they become immobile and 9 Pooja Sigh, ‘Person with Disabilities and Economic Inequalities in India’, (2014) 44(2, JulyDecember) India Anthropologist, 74.
10 Lina Abu Habib, ‘'Women and Disability Don't Mix!
': Double Discrimination and Disabled Women's Rights in Gender and Development’, (1995) 3(2 June) [Rights], Taylor & Francis, Ltd. on behalf of Oxfam GB, 49, available at <http://www.jstor.org/stable/4030515>, accessed on 25-06-2018 05:59 UTC.
housebound, and their isolation is complete”12.
Protection of Disabled Women: Peeping through International Legal Mechanism So, the human rights of disabled women are seriously at stake as it is often being jeopardizes by their family members and society as a whole.
This social system renders women with a disability as persona non-grata or lesser citizens, which is a very unfortunate and inhuman act too.
As per the report of the United Nations Population Fund (UNFPA), the number of disabled persons constitutes fifteen present of the total world’s population, and amazingly a huge number of population around two hundred million belonging from the age group of 10 to 24 are not recorded officially.13 The above report also claimed that disabled people have been denied education health services and subjected to acute poverty, discrimination, and violence.
According to this report, disabled young women, particularly the women with the least developed cognitive faculty are more, vulnerable and prone to sexual violence.
Disabled girls are either thwarted or deprived them of their life or eschewed from all sorts of social activities to make them handicapped in all respect.
They are denied from the basic amenities of life including education, health care facilities, etc.
and apart from the above their family in tune with the societal norms creates obstacles in every inch of their life so that they cannot get any opportunity to explore the potentiality of life and to develop their personality.
Their life becomes hellish not only for the discriminatory attitude of the society but also due to the antagonistic and uncaring attitude of their family members and in this respect they are subjected to 11 Anita Ghai, Rethingking Disability in India, (Delhi, Routledge, 2015), 9.
12 Ibid, 50.
13 Five things you didn’t know about disability and sexual violenceAs (UNFPA on 30th October, 2018), <https://www.unfpa.org/news/five-thingsyou-didnt-know-about-disability-and-sexualviolence> Accessed on 30/12/2018.
http://www.jstor.org/stable/4030515 https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence | 49 double discriminationone is for the gender and another for becoming disabled.
Worldwide, disabled women have a 19.6% employment rate, compared with 52.8% for disabled and 29.9% for women without disabilities.14 A study conducted in Australia found that as many as 62% of women with disabilities under the age of 50 had experienced violence since the age of 15, and women with disabilities had experienced sexual violence at three times the rate of those without disabilities.15 Moreover, it often the integrity of the young disabled women is violated, and they are not allowed to decide on their bodies.
As per the study of Human Rights Watch worldwide, only twenty percent of disabled women get the opportunity of rehabilitation.16 Disabled women’s sexual and reproductive rights often jeopardised.
As per the fact-sheets of WHO made on 16th January 2018, disabled people or the differently able people as a whole constitute the largest minority in the world.
Women with disabilities comprise 10 percent of all women across the globe.17 Despite this fact, people with disabilities are not getting the required legal, social, cultural and political recognition, and protection to enforce their human rights.
It is very unfortunate to note that neither the UDHR, 1948 incorporates the mechanism to address the problems of neither disables nor the United Nations’ Covenants, namely ICCPR, 1966 or the ICESCR, 1966 advocates to provide preferential treatment to the disabled considering their vulnerable position.
The silence of the international legal system, to consider the issues of disables as human right issue signifies that the world community failed to realise the gravity of the situation and to come forward to undo the 14 Ibid.
15 Ibid.
16 Women and Girls with Disabilities, <https://www.hrw.org/legacy/women/disabled.ht ml> Accessed on 30/12/2018.
17 Department of Economic and Social Affairs Unitec Nations, above n 3.
18 Ruthie Bonan Gomes, Paula Helena Lopes, et al above n 4. inhuman wrong inflicted on them.
Though, the Human Rights Laws promote the right to life, liberty, security, equality, and equity, but fail to read the attitude of the society, which is still not ready to protect the dignity and integrity of the people with disabilities.
Consequently, the specially-able persons need protective discrimination to promote their welfare and well-being.
However, in the year 1950, the Social Commission had taken a resolution to adopt the reports entitled “Social rehabilitation of the physically handicapped” and “Social rehabilitation of the blind” during its sixth session and empower the United Nations Economic and Social Council and accordingly the UN and its entities namely, International Labour Organisation, the World Health Organisation, and the United Nations Children’s Fund agreed to promote the welfare schemes for persons with disability.18 Like that General assembly adopted the Declaration on the Rights of Mentally Retarded Persons by its resolution 2856 (XXVI) of 20 December 1971 to ensure the medical cure, social welfare, and rehabilitation of the mentally retarded persons and to accord legal protection to their rights.19 In the year 1975, UN has taken not the piecemeal approach rather a composite approach on persons with disability and adopted the General assembly adopted the Declaration on the Rights of Mentally Retarded Persons by its resolution 2856 (XXVI) of 20 December 1971 to ensure the medical cure, social welfare, and rehabilitation of the mentally retarded persons and to accord legal protection to their rights.
Through this declaration, the UN called for international and national action for the proper development of the potentialities of the disabled persons.20 19 ‘Declaration on the Rights of Mentally Retarded Persons’ on United Nations High Commissioner for Human Rights (OHCHR) <https://www.ohchr.org/Documents/ProfessionalI nterest/res2856.pdf> Accessed on 31/ 12/ 2018.
20 ‘Declaration on the Rights of Disabled Persons’ on United Nations High Commissioner for Human Rights (OHCHR) <https://www.ohchr.org/en/professionalinterest/p https://www.hrw.org/legacy/women/disabled.html https://www.hrw.org/legacy/women/disabled.html https://www.ohchr.org/Documents/ProfessionalInterest/res2856.pdf https://www.ohchr.org/Documents/ProfessionalInterest/res2856.pdf https://www.ohchr.org/en/professionalinterest/pages/rightsofdisabledpersons.aspx Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 50 | Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence In 1976, the General Assembly decided to declare 1981 as the International Year of Disabled persons (IYDP) to guarantee equality of opportunities, rehabilitation, and prevention of disabilities.
The central idea of IYDP was to acknowledge the right of the persons with disabilities to take an active part in the life and development of their societies, to ensure that they should enjoy living conditions equal to those of other citizens and have an equal share in improved conditions happens due to socio-economic development.
Its aim was also to develop the awareness and understanding of the society regarding the acceptance of disabled persons in natural parlance of life.
It has guaranteed the disabled persons the right to form organisations and to express their views to improve their situation.
It advocates for change of the attitude of the society regarding the negative perception of the society about persons with disabilities.21 It astonishes that in the seventies when the UN and its agencies were involved in taking some important decisions regarding the welfare of the people with a disability again failed to incorporate the issues of disabled women in the epoch-making convention of General Assembly known as the Convention on the Elimination of all Forms of Discrimination against Women, 1979.
Though it is often argued that the above convention emphasizes on full development and advancement of women, which is equally applicable to disabled women but this argument cannot be accepted as the conditions of disabled women are much worse and different than able women.
So it would be better if the above convention contains the provisions to approach would specifically call for the development and protection of rights of disabled persons.
Here ages/rightsofdisabledpersons.aspx> Accessed on 31/12/18.
21 UN Department of Economic and Social Affairs The International Year of Disabled Persons 1981, <https://www.un.org/development/desa/disabilitie s/the-international-year-of-disabled-persons1981.html > Accessed on 31/ 12/ 2018.
22 UN Department of Economic and Social Affairs, World Programme of Action Concerning Disable Persons, <https://www.un.org/development/desa/disabilitie it is about mention that the above convention of 1979 addressed the issues of ‘women’ and ‘rural women’ which is quite appreciable but to remain mum about the protection of human rights issues of disabled women is very discouraging and unconvincing.
In 1982 the General Assembly adopted the World Programme of Action Concerning Disabled Persons (WPA).
Through WPA a global strategy was made to enhance disability prevention, rehabilitation, and equalization of opportunities, which pertains to the active participation of disabled persons in social life and national development.
WPA approached disability from a human right perspective.
It emphasized on the very notion that disabilities should not be treated in isolation, but within the context of normal community services and advocated in favour of ensuring equal opportunity.22 To promote the guiding principle and philosophy of WPA the General Assembly designated the decade of disabled persons starting from 1983 to 1992.
During this period, several steps were taken to ensure the physical and mental development of the disabled.
Apart from the other conventions, the General Assembly vide Resolution 44/70 of 15 March 1990 adopted Tallinn Guidelines for Action on Human Resources Development in the Field of Disability.23 Tallinn guidelines are radical as the first time it acknowledges that disabled persons are a maker of their path rather than objects of care, and this perception should be carried on every governmental and private policy and programs.
This signifies that disabled persons, as individuals and as members of organizations, should be involved in the decision-making process as equal partners.
The abilities of the disabled persons should strengthen through s/resources/world-programme-of-actionconcerning-disabled-persons.html> Accessed on 31/ 12/ 2018.
23 General Assembly Resolution 44/70 of 15 March 1990, Tallin Guidelines for Action on Human Resources Development in the Field of Disability, <http://siteresources.worldbank.org/INTTOPDIS KNO/Resources/20683851138826823809/21804041141165649294/tallinnGuidelines.pdf > Accessed on 31/12/2018.
https://www.ohchr.org/en/professionalinterest/pages/rightsofdisabledpersons.aspx https://www.un.org/development/desa/disabilities/the-international-year-of-disabled-persons-1981.html https://www.un.org/development/desa/disabilities/the-international-year-of-disabled-persons-1981.html https://www.un.org/development/desa/disabilities/the-international-year-of-disabled-persons-1981.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence | 51 community-based supplementary services provided by Governments and nongovernmental organizations.
Such a strategy aimed to promote self-determination among them and thereafter to involve them in developmental activities.
Tallinn guidelines emphasized the development of different devices including Braille script, sign-language interpretation for imparting information and education, to introduce a legally binding standard for ensuring barrier-free buildings, roads, transportation systems, etc.
and to ensure preferential protection for them in appointment and employment.
It’s called for improving the methodology for human resources development and advocated that Policies and programs for human resources development concerning disabled persons should be based on an assessment of their needs.
It is the first concerted attempt on the part of the UN to specifically mention about disabled women and acknowledged that they must be inducted in the existing national and regional programs aimed at women.
The Standard Rules on Equalization of Opportunities for Persons with Disabilities was an important outcome of the UN Decade of Persons with Disabilities, bringing the importance of the equalization of opportunities to the forefront of the global development agenda.
The Standard Rules were adopted on 20th December 1993 by the General Assembly vide Resolution 48/96 to advance the central objective of the World Programme of Action concerning Disabled Persons.24 It consists of 22 rules summarizing the message of the WPA.
Though these rules are not legally binding but represent the strong moral and political commitment of Governments to take action to attain equalization of opportunities for persons with disabilities.
It called for the appointment of a Special Rapporteur to monitor the 24 UN Department of Economic and Social Affairs, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, <https://www.un.org/development/desa/disabilitie s/standard-rules-on-the-equalization-ofopportunities-for-persons-with-disabilities.html> Accessed on 31/ 12/ 2018.
25 UN Human Rights Office of The High Commissioner, Vienna Declaration and implementation of the Rules.
One another important development in this regard had taken place through World Conference of Human Rights at Vienna, 1993 where 171 states adopted by consensus the Vienna Declaration and Programme of Action (VDPA).
VDPA in its Para 63 solemnly declares that like any other persons the disables are also entitled to enjoy all the rights and freedoms guaranteed by the human right regime.
It advocated that like other the disabled persons are also entitled to enjoy their rights to life, to work for their livelihood and to ensure their all-round development, actively involve with the main stream of the society and will maintain their independent identity25.
Any vitiation of such rights of a disabled person or any kind of discrimination will be considered as an attempt to jeopardise of their rights.
The above positive insights of The World Conference on Human Rights was a clear indicator to address the issues of disabled women from positive mind and to treat them equally by adopting preferential discrimination and also by discarding and eliminating socially construed barriers which creates impediments in their way to actively participate with the society by maintaining their own identity26.
It stressed on full participation of women as both agents and beneficiaries in the development process, and reiterates the objectives to ensure their progress.27 It advocated ending violence28 and discrimination against women.29.
World Summit for Social Development, Copenhagen held on 6-12 March 1995 adopted the Copenhagen Declaration and Programme of Action which endorses the disable people as a major minority group of the world and observed that more than 1 in 10, are people with disabilities, who are too often forced into Programme of Action, Adopted by the World Conference on Human Rights in Vienna on 25 June 1993, <https://www.ohchr.org/EN/ProfessionalInterest/ Pages/Vienna.aspx> Accessed on 31/ 12/ 2018.
26 Ibid, Para 64.
27 Ibid, Para 36.
28 Ibid, Para 38.
29 Ibid, Para 39. https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 52 | Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence poverty, unemployment and social isolation30 and, call for ensuring their development to attain social and people-centered sustainable development31.
After Durban Declaration, 2001 and some other welcoming steps of the UN and its agencies in the matter of protection of human rights finally, the Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol vide resolution A/RES/61/106 was adopted on 13 December 2006.
There were 82 signatories to the Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention and considered as the first comprehensive human right treaty related to persons with disability.
This convention came into force in 2008.
Along with the other things it reaffirmed that disabled persons should be empowered to enjoy all the fundamental rights as well as the fundamental freedoms irrespective of any discrimination32.
It clarifies that it is the attitudinal and environmental impediments that create bar into the way of the disabled persons to interact with the mainstream of the society at per with the so-called able persons33 and proclaimed that without bringing the disabled in the mainstream it is not possible to ensure sustainable development.34 It reveals the crude reality that the conditions of young disabled women are more vulnerable than the adults, and suffer violence, abuse, negligent treatment, maltreatment and exploitation both within and outside the family.35 Article 6 of the CRPD clarified that young disabled girls and women are subject to multiple discrimination, and the state parties keeping the above grim reality in mind must take appropriate measures for their all-round development, advancement, and empowerment.
CRPD in the literal sense can be termed as a landmark convention for the disabled persons because it identified and tried to eschew the exclusion politics by 30 H of Para 16 of Copenhagen Declaration and Programme of Action <http://www.un.org/en/development/desa/populat ion/migration/generalassembly/docs/globalcompa ct/A_CONF.166_9_Declaration.pdf> Accessed on 31/ 12/ 2018.
31 Ibid Para -4. harmonizing the policies and programs of the relating to disability and also by formulating non-legal strategies such as to engage the disables in developmental and policymaking activities.
Apart from the above, all the other international human rights instruments not mentioned here but formulated to ensure gender justice is applicable to disable women too to shun the politics of exclusion.
It is the need of the hour to bring the attitudinal and behavioural change towards the concept of disability so that every person irrespective of any discrimination can live with dignity.
The social support system should not be grown from the concept of any charity, sympathy or mercy rather should be developed from right centric approach so that any human being may not fit with the set image or concept of the society should get sufficient space to explore their potentiality and to develop their personality.
Disabled Women under Indian Legal System The constitution of India envisages tripartite picturesque of justice viz., justicesocial, economic and political the direction about which is provided in the preamble.
The above notion, of justice of course, gives a guarantee of full and free development of every individual, including the person with a disability.
It affirms to provide equal status and opportunity to its entire citizen, and the basic jurisprudence behind this philosophy ensures that disabled persons should enjoy the same status with the able person, and they cannot be treated unjustly on disability or gender issues.
Equality is the dictum of our constitution, reflects under Art.14 of our constitution.
The constitution further enjoins equal status to women through Art.15 (1), which prohibits gender discrimination and Art.
15(3) have been inserted to make special 32 Para C of the Preamble of the Convention on The Rights of Persons With Disabilities <http://www.un.org/disabilities/documents/conve ntion/convoptprot-e.pdf> Accessed on 31/ 12/ 2018.
33 Ibid, Para –e.
34 Ibid, Para –g.
35 Ibid, Para –q.
http://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.166_9_Declaration.pdf http://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.166_9_Declaration.pdf http://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.166_9_Declaration.pdf http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence | 53 provisions for women to uplift their status.
Art.23 and Art.24 protect disabled women from human trafficking and economic exploitation.
In this regard, some other Articles are also notable, such as Arts.39, 42, 47.
51A(e), which respectively deals with the equal treatment of man and woman, human condition of work and maternity relief, to supply a nutritious diet by the state and the fundamental duty to protect the dignity of women.
Article 21 gives the guarantee of the right to life and personal liberty and castigates the duty upon the state to provide all those amenities to the people and protect all those rights of the people, which can make the life of the people meaningful.
People can enjoy their life properly and can ensure their physical, mental, and spiritual development.
So, Art.
21 covers the variety of rights to curb inhuman rights and to promote human rights, and it is needless to mention that disabled women can use this legal protection for the development of their personality.
But at the same time, it is very unfortunate to note that nowhere in part-III of the constitution the constitutional makers recommended any special provision or treatment for the disabled.
So far legislation regarding disabled women is concerned in India neither the matrimonial laws nor the succession laws impose any barrier regarding the matter of marriage or succession.
Matrimonial laws in India only restricts marriage on the ground of disability where either party is an idiot or lunatic or Where one party is unable to give valid consent due to unsoundness of mind or is suffering from a mental disorder of such a kind and extent as to be unfit for ‘marriage for the procreation of children.
Some of the important legislation in India related to disabled women is: a.
The Rights of Persons with Disabilities Act, 2016 This legislation is comprehensive legislation to enforce the human rights of the disabled in pursuance of the UN Convention about disable persons held in December 2006 of which India is also a signatory.
It ensures equal opportunities to disables and to ensure their active participation in every sphere of life.
This Act addresses the issues of welfare and development of disables and promises to fulfil the essential requirements of their life like imparting education including job oriented and skill development, training and research program, free and enabling environment, unemployment allowance, special insurance schemes, allotment of land and construction of dwelling houses, etc.
The above Act prescribes for social-economic, political and cultural security for disabled persons.
This Act also deals with the grievance redressal mechanism whereby persons with disabilities may move to the Chief Commissioner for Persons with Disabilities in the Centre or Commissioner for Persons with Disabilities in the State in case of violation of any right as prescribed under the legislation.
Moreover, this Act replaces the Persons with Disabilities (PWD) Act of 1995 to widen and strengthen the rights of PWD.
The Act of 2016 specifically addresses the plight of women and children.
The RPWD Act, 2016 extended the seven conditions of disabilities as earmarked by the PWD Act, 1995 to 21 conditions.
Beside the blindness, low vision, leprosy cured, hearing impairment, locomotor disability, mental retardation, and mental illness RPWD Act, 2016 include cerebral palsy, dwarfism, muscular dystrophy, acid attack victims, hard of hearing, speech and language disability, specific learning disabilities, autism spectrum disorders, chronic neurological disorders such as multiple sclerosis and Parkinson's disease, blood disorders such as hemophilia, thalassemia, and sickle cell anemia, and multiple disabilities.
RPWD Act, 2016 provides for Central Advisory Board on Disability and the same advisory boards in the states to provide suggestions to the central government and the state government respectively on matters relating to persons with disabilities including policy formulation and also provides for District Level Committee to oversee implementation of the various provisions of the Act at the district level.
It provides penal provisions to bring the perpetrators and violators of this Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 54 | Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence Act, to book and if required through special court by ensuring speedy trial.
b.
The Mental Health Act, 1987 This Act is enacted to consolidate and amend the legal mechanism concerning medical aid and care to cure the mental ailment of the affected persons and also to protect their property and allied matters connected therewith or incidental thereto.
c. The Rehabilitation Council of India Act, 1992 This Act is amended in the year 2000.
This Act calls for the establishment of the Rehabilitation Council of India, which will impart and monitor the training of the person associated with the rehabilitation program and also to provide special education so that the disabled persons can be rehabilitated properly.
d. The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 This Act provides for the constitution of a National Trust to ensure the protection and development of Persons affected by Autism, Cerebral Palsy, Mental Retardation, and Multiple Disabilities, etc.
As per Sec.10 of the above Act following are the objects of the National Trust: (a) To make them independent on their own and to ensure that they can live with dignity in their community.
(b) To empower such persons with proper support mechanisms so that they may live with their family by maintaining their integrity.
(c) To engage the different registered bodies to support essential services during the period of crisis in the family of such persons (d) To treat such persons differently who lacks the cooperation from their family; (e) To ensure the wellbeing of such persons during the death of their parents or guardians; (f) To make provisions for the appointment of guardians and trustees in need.
(g) To enable such persons to avail equal opportunities, benefits, and rights at per with the other member of the society.
(h) To ensure the allied rights in terms with the aforesaid goals.
Apart from the above specific and major legislation to protect the rights and interests of the disabled persons the various other legislations are also there to ensure justice to disabled women in India like Immoral Traffic (Prevention) Act, 1956, The Maternity Benefit Act, 1961 (Amended in 1995), Dowry Prohibition Act, 1961, The Medical Termination of Pregnancy Act, 1971, The Contract Labour (Regulation and Abolition) Act, 1976, The Equal Remuneration Act, 1976, The Prohibition of Child Marriage Act, 2006, The Criminal Law (Amendment) Act, 2013, The Factories (Amendment) Act, 1986, Indecent Representation of Women (Prohibition) Act, 1986,Commission of Sati (Prevention) Act, 1987, The Protection of Women from Domestic Violence Act, 2005, The Protection of Children from Sexual Offences Act, 2012, etc.
In India, we have no dearth of legislation to address the rights and other issues of disabled women but still, disabled women are the most deprived vulnerable and marginalised section in India.
Lack of political will, corruption, poverty, lack of awareness, lack of socially sensitised Law Makers, Policy Makers & Judges, lack of representation of disabled women in the decision-making system are the most acute impediments to connect the disabled women with the mainstream of the society.
IV.
CONCLUSION Worldwide the disabled women are facing severe violations of human rights in every sphere of life.
They are the most vulnerable and marginalised groups.
No doubt, we have a plethora of laws across the globe, but it is the need of the hour to infuse awareness among the people so that the society can as a whole understand the problems and needs of the disabled women Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Roy Gender Discrimination, Disability and Legal Reforms: Revisiting the Evidence | 55 and must refrain itself from segregating them as a separate group based on bearing a particular image of disability in mind.
We should not forget, that disability is nothing more than a socially construed idea to regulate the whole affairs of the disabled persons and if we want to hammer this situation and want to ameliorate their condition we must have to come out from this set idea.
They should be given due respect towards their dignity, entity, and integrity.
It is high time to discard the politics of exclusion and to step towards the creation of a pluralistic society where humanity will get the priority over everything.
Of course, various laws, covenants, conventions have been framed and formulated to address the issues of gender disability but it seems no one is serious about their implementation which is very alarming.
The situation demands a strong political will to implement the laws properly so that the disabled can enforce their human rights and can lead a dignified life.
A strong movement from the different pressure groups, specialised organisations, and feminists groups is also the need of the hour to fulfil the aspirations and demands of the disables especially the physically and mentally challenged women.
They need a comprehensive social support system that not only will take care of their rehabilitation, education or strengthening the health schemes but will also works for their empowerment.
In the end, we need to change our attitude towards disabled women so that they can join the mainstream of society and participate in developmental activities.
Socially sensitised people are better statutory armour against the humiliation of the mentally and socially challenged women than the black letters of the law.
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UN Department of Economic and Social Affairs, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, <https://www.un.org/development/des a/disabilities/standard-rules-on-theequalization-of-opportunities-forpersons-with-disabilities.html> Accessed on 31/ 12/ 2018. http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf https://www.ohchr.org/Documents/ProfessionalInterest/res2856.pdf https://www.ohchr.org/Documents/ProfessionalInterest/res2856.pdf https://www.ohchr.org/en/professionalinterest/pages/rightsofdisabledpersons.aspx https://www.ohchr.org/en/professionalinterest/pages/rightsofdisabledpersons.aspx https://www.ohchr.org/en/professionalinterest/pages/rightsofdisabledpersons.aspx http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf http://siteresources.worldbank.org/INTTOPDISKNO/Resources/2068385-1138826823809/2180404-1141165649294/tallinnGuidelines.pdf https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx https://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence https://www.unfpa.org/news/five-things-you-didnt-know-about-disability-and-sexual-violence https://www.hrw.org/legacy/women/disabled.html https://www.hrw.org/legacy/women/disabled.html https://www.un.org/development/desa/disabilities/the-international-year-of-disabled-persons-1981.html https://www.un.org/development/desa/disabilities/the-international-year-of-disabled-persons-1981.html https://www.un.org/development/desa/disabilities/the-international-year-of-disabled-persons-1981.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html https://www.un.org/development/desa/disabilities/resources/world-programme-of-action-concerning-disabled-persons.html https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html https://www.un.org/development/desa/disabilities/standard-rules-on-the-equalization-of-opportunities-for-persons-with-disabilities.html
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.07 | 233 Right to Information, Judicial Activism and the Rule of Law: The Case of Indonesia’s Mining Litigation Myrna A. Safitri1 1Faculty of Law, Pancasila University Email: myrnaasnawati@univpancasila.ac.id Submitted : 2018-10-03 | Accepted : 2018-10-22 Abstract: The right to information is fundamental in environmental protection.
Lack of access to information regarding environmental planning and licensing has often lead to public interest environmental litigation.
The right to information is also an element in the formation of the rule of law in both its formal and substantive aspects.
Mining must be cautionary conducted due to its high potential for environmental damage and pollution.
This paper discusses the extent to which is the right to environmental information protected in Indonesia through several cases of mining litigation.
Using statutory and court cases methods, it discusses laws on the rights to information in general and in the field of environmental protection, how Indonesian courts have interpreted the government obligations to fulfill citizens' access to mining information, and the extent to which that legal interpretation contributes to the rule of law elements.
This paper then concludes that the right to mining information is still difficult to attain.
Public bodies tend to prioritize formal-procedural aspects in providing information and setting up a public consultation.
However, the cases studied indicate that judicial activism has provided corrections to such a procedural approach.
More substantive rule of law principles used by the courts to interpret mining zones and environmental permits procedures.
Keywords: Indonesian mining law, judicial activism, mining litigation, right to information, rule of law I.
INTRODUCTION In 2008, for the first time, Indonesia had a law on information disclosure.
Law no.
14 of 2008 concerning Openness of Public Information (also known as Freedom of Information Law, FoI Law) was formed to implement the Constitutional order regarding the recognition and protection of citizens' rights to information.
The FoI Law requires public bodies to manage information and provide citizens' access to information.
In addition to this, various laws in the field of environment and natural resources also call http://dx.doi.org/10.21776/ub.blj.2018.005.02.xx mailto:myrnaasnawati@univpancasila.ac.id Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 234 | Safitri Right to Information, Judicial Activism and the Rule of Law... for rights to information too.
1 Environmental Law number 32 Year 2009, for example, obliges the central and regional governments to establish an environmental information system and announce each application and decision on granting of environmental permits.2 Not only regulations, a state institution for the fulfillment of the right to information are also provided.
Indonesian Information Commission, which was first established in 2010, is tasked with setting technical guidelines for public information service standards and completing public information disputes.
Meanwhile, in every government agency, information service units are set up.
Simultaneously, public interest disputes in the environmental sector in Indonesia have increased.
Court cases of forestry, plantation, and mining are three major litigations in this regard.
In this article, however, we limit our discussion to mining litigation.
Of a number of mining court cases involving the community as environmental defenders, the author observes that issues related to rights to information regarding mining plans and permits are quite widely used, both in civil and administrative claims as well as in information disputes.
The practice of achieving the rule of law elements in environmental disputes, in particular, mining, is mostly carried out through formal legality procedures.
Nevertheless, in the midst of such legal formalism, there are several court cases on mining information that show a progressive legal interpretation.
The extent to which regulatory framework and institutional developments have corresponded to the improvement of the rule of law is the key theme of this article.
To answer, this article 1 See Law No.
32 of 2009 on Environmental Protection and Management, Law No 4 of 2009 on Mineral and Coal Mining.
describes the following questions: (1) Why does the right to information matter to the rule of law formation in environmental protection?
(2) How do Indonesian laws conceptualize the right to information?
(3) How did Indonesian environmental defenders get access to mining information through judicial proceedings?
(4) How have Indonesian courts interpreted the government's obligation to fulfill citizens' right to mining information?
The extent to which such legal interpretation has contributed to the elements of the rule of law?
Result and discussion of this paper are divided into five.
Following the section of research method, is an overview regarding the relevance of the right to information to the rule of law formation.
A conceptual discussion regarding the rule of law and its linkage to the right to information is part of this section.
Afterward, there will be a section that describes the legal and institutional framework of the right to information particularly the right to environmental information.
The following section elaborates judicial proceedings regarding the right to mining information.
Taking examples from three public interest litigation, this part discusses how judicial interpretation on the right to information will contribute to the improvement of the rule of law in the Indonesian mining sector.
Finally, this article is ended with a concluding remark and some recommendations.
II.
LEGAL MATERIALS AND METHODS This article was a result of my independent research conducted in the first half of 2018.
A juridical and normative legal research was carried out using statutory and 2 Art.
62 and Art.
39 of Environmental Law.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 235 court case approaches.
Legal materials that had been collected and analyzed were derived from laws and regulations concerning the environment, mining, public information disclosure, public services, and citizen administration.
More specifically, this research scrutinized Indonesian Constitutional provisions regarding the citizens' right to information and the right to environment, Law 32/2009 on Environmental Protection and Management, Law on Mineral and Coal Mining No.
4 of 2009, Law 14/2008 on the Openness of Public Information (Freedom of Information Law), Law No.
25 of 2009 on Public Services and Law on Population Administration number 24 of 2013.
Furthermore, Government Regulation No.
27 of 2012 on Environmental Permit and Ministry of Environment Regulation Number 17 of 2012 concerning the guidance of people's participation in the enactment of Environmental Impact Assessment and Environmental Permit were also analyzed.
The United Nations Economic Commission for Europe's Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention) and the 2013 Jakarta Declaration for Strengthening the Right to Environmental Information for People and the Environment were also studied in this research.
Four court decisions were collected and analyzed.
They are the Constitutional Court Ruling number 32/2010 that reviewed several Articles of Mining Law and a Supreme Court Ruling concerning a karst mining dispute in Central Java (Ruling 99/2016).
Included in the decisions reviewed 3 World Justice Project, 2018.
Rule of Law Index 2017-2018.
Washington DC: World Justice Project, Pp.
6. were the Information Commission decision in East Kalimantan Province (Decision number 00031REG-PSIIIIT/2014) that then agreed by the state administrative court (Ruling number 17/2015) and the Supreme Court through Ruling number 614/2015.
The analysis of these decisions showed a strong correlation in judicial activism carried out by the judges on the completion of the right to environmental information.
Completing the data in this study were various literature to enrich information, including mass media news, research reports, books, and journal articles as can be seen in the footnotes and references.
III.
RESULT AND DISCUSSION This part describes legal issues, findings, and discussion concerning the focus of this study.
It contains three sub-sections.
The first part describes conceptual issues concerning the role of the right to information in the rule of law formation.
The second part explains the Indonesian legal framework on the right to information in general and the right to environmental information.
Part three discusses judicial interpretation regarding the right to information as found in three court cases on mining litigation.
1.
Right to Information and the Rule of Law Formation The assessment of the rule of law index conducted by the World Justice Project (WJP) in 2017-2018 placed Indonesia in 63rd out of 113 countries surveyed.3 The improvement of the rule of law in Indonesia, in general, is inseparable from some progress in the legislative, judiciary and government Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 236 | Safitri Right to Information, Judicial Activism and the Rule of Law... actions.
In terms of environmental governance, the last five years are marked by the issuance of a number of regulations.
Then there are also judicial processes for environmental crimes.
With regard to the rule of law, WJP calls four pillars that must be robust.
The first is related to accountability in both government agencies and the private sector.
The second pillar is just law that is characterized by clear, publicized, stable, and just regulations.
Those are applied evenly; and protect the fundamental rights, including the security of persons and property and the certain core of human rights.
An open government is another condition where the law is enacted, administered, and enforced are accessible, fair and efficient.
Included in this Open Government pillar is the right to information.
The last is accessible and impartial dispute resolutions.
This mechanism allows justice "is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources and reflect the makeup of the communities they serve".4 These four pillars intersect with the elements of the rule of law presented by Brian Tamanaha and refined by Adriaan Bedner.5 Both state that the rule of law is achieved in both formal and substantive aspects.
In the formal aspect, the rule of law develops from the lowest level, namely rule by law, to formal legality and finally is on the aspects of democracy.
The rule by law requires that state action is bound by law.
The formal legality asks for legal material that is clear and certain, accessible and predictable 4 WJP, Pp.
10-11.
5 Tamanaha, Brian Z., On the Rule of Law; History, politics, theory (2004).
Cambridge: Cambridge University Press.
Bedner, Adriaan.
An Elementary Approach to the Rule of Law (2010).
Hague Journal on the Rule of Law, 2: 48–74.
and general in its application.
In terms of democracy, a people's agreement will determine or influence the content of the law and legal actions.
In the substantive aspect, the legal material and its interpretation must be subject to the principles of justice.
The protection of individual rights and the freedoms and protection of human rights in groups must exist.
Unlike Tamanaha, Bedner then added that the rule of law entails guardian institutions.
In this sense, an independent judiciary is the main requirement.
However, it can be obtained through other institutions that function as safeguards of the rule of law elements.
The right to information is clearly an important part of the achievement of the rule of law elements.
From the pillars used by WJP we can see that an open government needs access to information for citizens.
The right to information is also important to realize the democratic aspect in the formal version of the rule of law.
Through the access to information, the protection of citizens' rights either individually or in groups is rewarded.
The right to information itself has been globally recognized as one of the fundamental human rights.
Stated for the first time in Swedish Constitution in 1776, the right to information became part of fundamental rights to the constitution of several countries.6 In the field of environment, the right to information is strengthened through The Aarhus Convention.
It is the first international law instrument that provides mechanisms for public participation in 6 Access Info Europe, Access to Information: A fundamental right, a universal standard (2006).
Briefing Paper.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 237 environmental matters.
This Convention introduces the three pillars of public participation that are access to information, participation in decision-making and access to justice.7 Protection at the right to information is generally carried out through the courts.
Nonetheless, the existence of safeguard institutions to the rule of law can be other providers of access to justice for information right defenders.
In Indonesia, such safeguard institution is the Information Commission which will be explained briefly in the following section.
Noticeably, the existence of safeguard institutes is important in terms of recognition, protection, and fulfillment of the right to information.
In this regard, judicial activism will be a key because as Mesonis says, it allows judges to have more freedom to determine legal issues and to invalidate legislative or executive actions that undermine the basic principle of justice.8 The judicial activism, however, must be supported by the ability of citizens and civil society organizations to effectively utilize public interest environmental litigation.
In addition to this, government agencies must indicate a strong commitment to protecting the public interest in their environmental policy.9 The judicial activism is not a total freedom of the judges.
It cannot rely upon the discretionary powers of the judges.
Faiz states that judicial activism must be dedicated to protect the constitutional rights of the citizens and to provide the 7 Madrid, Juliana Zuluaga, Access to Environmental Information from Private Entities: A Rights-Based Approach (2017).
Review of European Community and International Environmental Law 26 (1), Pp.
40.
8 Gediminas Mesonis, Judicial Activism in the context of the jurisprudence of the constitutional court.
http://www.satv.tiesa.gov.lv/en/wpcontent/uploads/sites/2/2017/06/Book_Judicialactivism-of-the-Constitutional-Court-in-agreatest protection to minority or vulnerable groups.
It should be used to recover and protect the violations of individual and group rights and to adapt the national law to internationally recognized notion of global justice.10 2.
Indonesian Law on Right to Environmental Information Indonesia has complete legal and institutional arrangements regarding the right to information.
The 1945 Constitution, Art.
28F, states: Every person shall have the right to communicate and obtain information for the development of his / her self and social environment, and shall have the right to seek, obtain, store, process and convey information by employing all available types of channels.
As mentioned in the introductory part, to implement Article 28F of the Constitution, the Government of Indonesia established Law No.
14 of 2008 concerning Public Information Openness (Freedom of Information Law).
The Aarhus Convention inspired some provisions in this Law.
The FoI Law generally aims to: 1.
Ensure the right of citizens to know about public policy making, policy programs, and public decision-making processes and the reasons behind them; 2.
Encouraging community participation in the process of public policy making; Democratic-State_part_2_ENG.pdf retrieved 18 September 2018.
9 Niyati, Mahajan, 2015.
Judicial Activism for Environmental Protection in India.
In: International Research Journal of Social Sciences.
Vol 4(4), Pp.
13-14.
10 Faiz, Pan Mohammad, Judicial Restraints vs.
Judicial Activism (2017).
Majalah Konstitusi 130, Pp.
8.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 238 | Safitri Right to Information, Judicial Activism and the Rule of Law... 3.
Increasing the active role of the community in public policy making and good public agency management; 4.
Realizing good state administration, which is transparent, effective, efficient, and accountable; 5.
Knowing the reasons for public policies that affect the lives of people; 6.
Develop knowledge and educate the life of the nation; and/or 7.
Improve information management and services within public agencies.
The enactment of FoI Law to some Indonesian researchers brings to a new paradigm.
The Law reemphasizes that the right to information is the constitutional right of the citizens that must be fulfilled by the State.
The activities of public bodies that are used public fund and carried out in accordance with the mandate given by the people must be accounted for to the public.
Besides, the public information disclosure improves the quality of public participation in the decision-making process.11 The FoI Law states that individuals, groups, legal entities, and public bodies have the right to obtain public information.
This right includes the right to see and know, attend public meetings to obtain public information, obtain a copy of the public information, or disseminate information in accordance with legal provisions.12 Public bodies according to FoI Law consist of state agencies and other public bodies.
The state agencies include the executive, legislative, judicial, and all state 11 Prayitno, Dessy Eko et al.
Penafsiran atas Pengecualian dalam Hak atas Informasi: Pengalaman di Indonesia dan Negara Lain (2012): Jakarta: Indonesian Center for Environmental Law, Pp.7-8.
12 Art.
45 section 2 of FoI Law.
13 Partridge, Jodie.
The Freedom of Information In Indonesia and Australia.
Brawijaya Law Journal Vol 2, No 1 (S) (2015), Pp.
35. administration institutions at the central or regional level.
The FoI Law also includes non-governmental organizations as public bodies as long as some or all of their funds are sourced from the state budget, community contributions, and foreign country grants.
Partridge concluded that the provisions concerning the public bodies in FoI Law are a result of government and civil society compromise.
The civil society urged the openness of public information in all government agencies including state-owned corporations.
The government agreed but asked for a number of exceptions and required for the openness of information held by the civil society organizations.13 Nevertheless, the inclusion of private entities into the public bodies in Freedom of Information Law has been a recent trend of the implementation of a rights-based approach in development and environmental protection.14 All public bodies must provide public information.
It is mandatory for them to have a special unit that is responsible for storing, documenting, and providing public information services.
Excluded from that obligation is if the information requested is that that could endanger the state security, information relating to business protection from unfair competition and information relating to personal rights.
Apart from that, entering this exception too is the information relating to the secret office and information 14 Madrid, Juliana Zuluaga, Access to Environmental Information from Private Entities: A Rights-Based Approach (2017).
Review of European Community and International Environmental Law 26 (1), Pp.
43.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 239 that has not been mastered or documented by the public bodies.15 Excluded information due to its confidential must be tested by an authorized official to see the consequences that will arise when it is given to the public.
Test results can lead to a decision of prohibiting public access to that information, in order to protect greater interests.
A special institution, the Information Commission, was formed to implement the FoI Law.
A Central Commission is based in Jakarta, but there are also commissions in provinces and districts.
The Information Commission is tasked with setting technical guidelines for public information service standards and resolving public information disputes through mediation and/or nonlitigation adjudication.16 If the parties agree to settle their information disputes at the Information Commission through mediation and accept the results, the mediation decision is final and binding.
However, in the case that those parties do not receive the results of the mediation and state in their written objections or withdraw from the mediation process, they can submit a dispute resolution through non-litigation adjudication.
The Information Commission decides on the dispute.
Objection to the Information Commission Decision can be submitted through a lawsuit.
The FoI Law states that the filing of that suit is carried out through state administrative courts for information disputes involving state agencies.
Meanwhile, if the person who is sued is another public body then the lawsuit is submitted to general district courts.
Once the decision of the state administrative court or district court cannot also be accepted, the 15 Art.
6 section 3 and Art.
17 of FoI Law.
16 Art.
23 of FoI Law.
17 Art.
47, Art.50 of FoI Law.
objection party has the opportunity to submit a court cassation to the Supreme Court as a final legal remedy.17 The obligation of government institutions to provide information is also regulated by the Law on Public Services (Law No.
25 of 2009).
In addition to managing information, government institutions are also compelled to serve public complaints.
The protection of citizens' rights to information in Indonesia is also increasingly possible with an Open Government policy.
Since 2012, the Government of Indonesia has a biennial Action Plan on Open Government.
One of the contents of such Plan is to instruct relevant ministries or state agencies to make and implement an information transparency policy.
In the environmental sector, the right to information is related to several aspects.
Firstly, it is part of environmental democracy.
The Elucidation of Law 32 of 2009 states that environmental democracy is obtained through access to information, access to participation, access to justice and the strengthening of community rights in the protection and management of the environment.
The right to environmental information is also an elaboration of the principles of good governance in environmental protection and management, where the principles of participation, transparency, and accountability are essential in addition to the principles of efficiency and justice.18 Secondly, the rules regarding environmental information are associated with the obligations of the central and regional governments to establish an environmental information system.
This system aims to support the implementation 18 The Elucidation of Art.
1 m of Environmental Law.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 240 | Safitri Right to Information, Judicial Activism and the Rule of Law... and development of environmental policies.
According to Article 39 of the Environmental Law, the government and regional governments are also compelled to announce each application and decision on environmental permits.
The announcement must be done in a way that is easily known by the public.
It is then stated in Article 62 paragraph (2) of Law 32 of 2009 that the environmental information system must be published.
The third is in terms of implementing the right to a good and healthy environment.
To achieve this right, Indonesian Environmental Law guarantees the right of citizens to access environmental information.
Art.
65 section 2 of Law no.
32/2009 states: Everybody shall be entitled to an environmental education, information access, participation access and justice access in fulfilling the right to a good and healthy environment.
Indonesian Environmental Law also requires those who run businesses or activities to provide information related to the protection and management of the environment in a correct, accurate, open and timely manner.
They are prohibited from giving false information, misleading, removing information, damaging information, or giving false information.
Criminal sanctions are given for violations of this prohibition.19 More operational provisions regarding the right to information in the protection and management of the environment are regulated in a Government Regulation concerning Environmental Permits 19 Art.
68 a and Art.
69 j of Law 32/2009.
20 EIA must be conducted by every business or activity that will have a substantial impact on the environment.
Those substantial impacts are measured based on: the number of population to be affected by the business and/or activity plan; the (Regulation No.
27 of 2012).
Business or activity proponents who will prepare documents for Environmental Impact Assessment (EIA)20 must involve the community through announcements of its business plans and/or activities and the holding of public consultations.
Within ten working days, after the announcement is given, the community has the right to submit suggestions, opinions, and responses to the planned business and/or activities.
There are three groups of people who need to be involved in this matter.
They are those who will be directly affected, environmental groups and the community who will be indirectly affected by the government's decision to approve the EIA document and environmental permit.
To regulate the procedure for the announcement and public consultation, the Minister of Environment makes a Ministerial Regulation concerning guidelines for community involvement in the process of environmental impact analysis and environmental permits enactment (Ministerial Regulation Number 17 of 2012).
The implementation of the announcement according to that Regulation is carried out by the initiator of the activity through a compulsory and supporting media announcement.
Mandatory media are national or regional newspapers or notice boards that are easily accessible to affected communities.
The announcement must also use supporting media in the form of brochures, flyers, or banners; electronic media such as television, websites, social networks, text message and/or radio, bulletin boards in size of area of impact; intensity and duration of Impact; environmental components to be affected; cumulative characteristic of impact; reversibility of impacts, other criteria determined by science and technology (Art.
22 section 2 of Law 32/2009).
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 241 environmental agencies and agencies in charge of businesses and/or activities at the central, provincial and/or district levels.
The announcements are made in Bahasa Indonesia and can be translated into local languages.
Meanwhile, the public consultation can be carried out through various forms of meetings such as workshops; seminar; focus group discussion; village meeting; hearing forum; interactive dialogue; and other two-way communication methods.
Looking at the above explanation seems that since 2002, the Government of Indonesia has conducted efforts to the protection and fulfillment of citizens' right to information.
Legal and institutional instruments are adequately available.
Nevertheless, for Indonesian CSOs, this Law has not been effectively implemented.
After the enactment of FoI Law, Indonesian CSOs in 2013 initiated a regional commitment to strengthen the right to information.
That commitment was named the Jakarta Declaration for Strengthening the Right to Environmental Information for People and the Environment.
The Declaration states that public participation must be guaranteed in terms of policy making, formulation of standards for release of air and water pollutants, environmental planning, application for permission for development, grant and renewal of permits, environmental impact assessment processes, enforcement and reporting of violations and environmental disclosure program such as Pollutant Release and Transfer Registers.21 In addition to this, an Indonesian NGO has 21 For a complete report regarding the implementation of the right to environmental information in Indonesian CSOs' eyes see Indonesian Center for Environmental Law (ICEL), Strengthening the right to information for people and environment; Case study from Indonesia (2013).
Jakarta: ICEL.
initiated to create a smart application called 'Open Mining' to assist the public to know the types and locations of oil, gas, mineral and coal mining throughout Indonesia.22 3.
The Judicial Interpretation This paper believes that judiciary is an important safeguard institution on the rule of law.
As earlier stated, the safeguard institution for the protection of the right to environmental information in Indonesia is not only a court but is also run by the Information Commission.
There are several environmental information disputes handled by this Commission, both at the national or regional level.
Similarly, there are a number of court cases related to the right to information in the environmental field.
This article limits the discussion to three court cases on mining information rights.
They are the Constitutional Court Ruling regarding the examination of provisions for the determination of mining zones in Law on Mineral and Coal Mining (Law No.
4 of 2009), the Supreme Court Ruling that relates to the procedure for announcing environmental permit for mining activities and an Information Commission Decision that was confirmed by the court regarding the interpretation on mining information that is excluded from public access.
The court cases selected are publicinterest litigation where the aim of one party is to protect the group and environmental rights.
This article follows the notion of public interest dispute of Nicholson who said that those disputes exist when environmentally damaging or polluting 22 Rini, Rizky Ananda Wulan Sapta, Open Mining: From Extractive Data Disclosure to Citizen Empowerment (2016), https://www.opengovpartnership.org/stories/open -mining-extractive-data-disclosure-citizenempowerment accessed 16-10-2018.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 242 | Safitri Right to Information, Judicial Activism and the Rule of Law... activities have impacted on the public interest in environmental preservation.23 Public-interest litigation is an appropriate judicial proceeding to examine the achievement of the highest substantive element of the rule of law (see Tamanaha and Bedner again in the previous section).
A.
The Constitutional Court Ruling The Constitutional Court in Indonesia has the authority to examine the consistency of Law to the Constitution.
The 2009 Law on Mineral and Coal Mining is one of the Laws that had been tested.24 In 2010 a number of individuals and non-governmental organizations requested four Articles of that Mining Law to be constitutionally reviewed.
They are related to the determination of mining zones and penal articles concerning people’s blockade of mining activities.
The Constitutional Court then decided on those legal matters through Ruling number 32/2010.
Before describing this Court Ruling, I begin the discussion of this sub-section by explaining the mining zone.
A mining zone (wilayah pertambangan) is an area that determines where mining activities can be carried out.
The zone is determined by the Government upon coordination with the regional governments 23 Nicholson, David, 2009.
Environmental Dispute Resolution in Indonesia.
Leiden: KITLV Press.
Pp.3 24 For an overview of Indonesian current mining regulatory framework see Pricewaterhouse Cooper Indonesia, Mining in Indonesia: Investment and Taxation Guide (2018).
Jakarta: PwC.
25 Art.
6. e and Art.
9 section 2 of Law 4/2009.
26 Art.
28C (2) of the 1945 Constitution: Every person shall have the right to improve him/herself through the collective struggle for his/her rights to develop his/her society, nation and state.
27 Art.
28D (1) of the Constitution: Every person shall have the right of recognition, guarantees, protection, and certainty before a just law, and of equal treatment before the law.
and consultations with the House of Representatives of the Republic of Indonesia.25 Art.
10 of Law 4/2009 obliges the mining zones determination to be transparent, participatory, and responsible.
The zones must be integrated with due regard to the opinions of the relevant government agencies and the public.
They must also consider ecological, economic, and sociocultural aspects as well as environmental soundness.
Lastly, it must reflect regional aspirations.
The petitioners of this Constitutional Court case believed that the determination of mining zone is against Indonesian Constitution provided it is not understood as an obligation to protect, respect, and fulfill the interests of the people whose territories and land will be included in the mining zone as well as the community who will be affected.
The petitioners stated that Article 10 (2) of Mining Law is contrary to citizens' right to choose their domicile26, right to the due process of law27, right to the freedom of expression28, right to the protection from fear29, right to a good and healthy environment.
and the protection of property right30.
For this reason, they called for the opinion of the community in terms of 28 Art.
28E (3) of the Constitution Every person shall have the right to the freedom to associate, to assemble and to express opinions.
29 Art.
28G (1) of the Constitution: Every person shall have the right to protection of his/herself, family, honor, dignity, and property, and shall have the right to feel secure against and receive protection from the threat of fear to do or not do something that is a human right.
30 Art.
28H (1) of the Constitution states that Every person shall have the right to live in physical and spiritual prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care; Art.
28H (4) mentions Every person shall have the right to own personal property, and such property may not be unjustly held possession of by any party.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 243 determining the mining zone must be conducted in writing.
The petitioners, interestingly, did not include the Constitution’s Article on the right to information.
As explained in the previous section, Art.
28F of the Indonesian Constitution states that citizens have the right to communicate and obtain information for their life development and social environment.
In addition to this, they have the right to seek, possess, store, and convey information by employing all available types of channels.
The petitioners also called for the annulment of penal provisions concerning communities’ blockade of mining activities.
This was declared contrary to the constitutional right to express opinions (Art.
28E section 3 of the Constitution), and collective rights to advancing life (Art.
28C section 2).
Article 136 of Mining Law states that Mining Permit holders, before carrying out production operations activities, must settle all land claims.
The land settlement may be conducted in stages as needed by the Mining Permit holders.
Then, Art.
162 of Law 4/2019 mentions that activities that disturb mining activities belonging to Mining Permit holders who have settled land claims shall be sentenced to imprisonment of at least 1 (one) year or a fine of most IDR 100,000 million or USD 6,708.
This article has been frequently used to criminalize people who are facing land conflicts with mining permits.
The Constitutional Court agreed to the petitioners’ argument concerning provisions on mining zone.
This is what is discussed in this sub-section.
In the Decision of the Indonesian Constitutional Court Number 32 / PUU-VIII / 2010, the judges said that the phrase "paying attention to the opinion of the public" in determining a mining zone (Art.
10 section 2 of Law 4/2009) must be interpreted as an obligation to protect, respect and realize the interests of the community whose territory or land will be included in the mining zone and those that will be affected.
Legal reasoning delivered by the judges begins by explaining the relationship between the people and the state in terms of natural resources tenure.
The people, according to the judges, have given their mandate to the state through the government to conduct policy and regulatory making, resource management and supervision of natural resources management.
The state through the Government is obliged to take action in order to respect, protect and fulfill citizens’ economic and social rights.
Thus, the determination of the mining zone must be interpreted as the Government’s obligation to realize those economic and social rights.
The Government cannot act arbitrarily so that it must first coordinate with local governments, consult with the parliament, and consider to the opinions of the community.
The mechanism for determining mining zones as stipulated in Article 10 paragraph 2 of Law 4/2009 has the potential to violate the constitutional rights of citizens if solely conducted to accomplish formal-procedural provisions and obscure the main purpose of respecting, protecting, and fulfilling economic and social rights of citizens.
The Constitutional judges stated that the opinion of the people in determining mining zones is a form of people's control over the Government.
That control must be directly done by the community will be affected.
As such there must be direct involvement of the community, facilitated by the government, in giving their opinions.
The judges disagreed with the request of the petitioners to use written agreements as a form of expressing public opinion.
Written approval according to the judges is only formal-procedural but does not reflect substantive opinion.
Then Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 244 | Safitri Right to Information, Judicial Activism and the Rule of Law... direct public opinion is more required in establishing mining zones.
B.
The Supreme Court Ruling31 The decision of the Supreme Court which is discussed in this sub-section concerns legal provisions for submitting announcements of environmental permits.
The case examined in this court is an administrative dispute on the issuance of an environmental permit in Central Java Province.
In 2012, the Governor of Central Java issued an environmental permit for a stateowned cement company that plans to do karst mining in the Kendeng Mountains.
The Mountains, in fact, are one of water catchment areas in Java and the area to maintain food security.
The Mountains are surrounded by fertile rice fields managed by indigenous peoples known as the Samin People.32 The plan to build a cement factory in the Kendeng Mountains was opposed by the community.
A number of protests were performed.
Legal remedies are carried out through administrative claims against the environmental permit.
According to farmers, the environmental permit issued for the cement factory in Kendeng are made without adequate information and consultation with the community.
Meanwhile, the provincial government of Central Java and the cement company viewed that information has been provided and consultation has been carried out through meetings held in the village.
For 31 This sub-section has been partially included in my paper titled: Social Movement in Indonesian Mining Law Enforcement: The case of peasantsscholars nexus in karst mining dispute in Java, presented in International Conference on International Conference on Energy and Mining Law 2018, Jakarta 18 September 2018.
32 Further readings concerning the history of Samin People see Harry J. Benda, and Lance Castle, “The the community, this cannot be accepted because the consultation is only formalprocedural and does not really aim to capture people's opinions.
The announcement of environmental permits is the implementation of Article 39 of Indonesian Environmental Law.
It has been explained in the previous section that the provision requires Minister, and local government to announce every application and environmental permit decision.
That announcement must be accomplished by easily understood means.
The Supreme Court through Ruling Number 99/2016 cancels the Central Java Governor's decree on the environmental permit.
The Supreme Judges argued that the announcement of the permit in the Kendeng Mountains could not be accepted because it did not include any information regarding potential pollution or environmental damage of the enacted Environmental Permit.
The formal justice procedural socialization model does not provide protection to the rights of the people.
The announcement of environmental permits must deliver the information effectively to all groups of people, either directly or indirectly through representation, and "in accordance with the language and level of their social stratification".33 C. The Commission of Information Decision In sub-sections A and B, we have discussed the judicial activism contained in Samin movement”, Bijdragen tot de Taal -, Land en Volkenkunde, 125. no: 2, Leiden, Pp.
207-240 and Sartono Kartodirdjo.
Agrarian Radicalism in Java: Its Setting and Development.
In C. Holt (Ed.
), Culture and Politics in Indonesia (1972), Pp.
71-125.
Jakarta and Kuala Lumpur: Equinox Publisher.
33 Supreme Court Ruling Number 99/2016, Pp.
111.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 245 the Constitutional Court and the Indonesian Supreme Court in terms of obtaining public opinion and submitting information about environmental permits.
This section discusses another safeguard institution's role that is the Information Commission Decision.
As repeatedly explained, the Information Commission is responsible for handling information disputes.
In this section, the dispute discussed is related to an information request for mining business licenses in Kutai Kartanegara District in the Province of East Kalimantan.
This district is known as an area that is rich in mining, especially coal.
There are 625 mining permits in Kutai Kartanegara or 45% of all mining permits in East Kalimantan.
With this figure, the Kutai Kartanegara Government is also listed as the largest mining permit issuer in Indonesia.34 In 2014, the Information Commission of East Kalimantan Province through the Decision Number 00031REG-PSIIIIT/2014 decided to agree for the request of a citizen to open all mining permits granted by the Mining and Energy Services of Kutai Kartanegara.
Rejecting this ruling, the Mining Services filed a lawsuit before the State Administrative Court in the City of Samarinda, the capital of East Kalimantan.
The court upheld the decision of the Information Commission.35 The Mining Services then appealed to the Supreme Court.
Yet, the Supreme Court, through its Ruling number 614 K/TUN/2015, confirmed the decision of the Information Commission and the State Administrative Court.
One interesting legal issue, in this case, relates to the understanding of legal 34 https://kaltim.antaranews.com/berita/38664/kutaikartanegara-miliki-izin-pertambangan-terbanyak, http://kaltim.tribunnews.com/2017/04/13/beginiprotection priorities related to public information.
The local government, in this case, is the Mining and Energy Services, believed that mining licenses cannot be handed over to the public because they are classified as ‘excluded public information'.
As discussed in section III, Indonesian FoI Law states that some information is exempt from the public's right to know it.
Included in this group, according to Article 6 paragraph (3) and Article 17 of FoI Law, are information that can endanger the state security, information relating to business protection from unfair competition, information relating to personal rights, information relating to office secret; and information that has not been mastered or documented by the public bodies.
Using the provisions of these two Articles, the Kutai Mining Services stated that the mining licenses requested contained information regarding personal rights of permit holders.
Therefore it is not publicly accessible.
In accordance with Population Administration Law number 24 of 2013, the security of personal data is protected by law.
Then it was also stated that disseminating information regarding mining permits also has the potential to disrupt business protection efforts from unfair competition.
On the contrary, the East Kalimantan Information Commission interpreted that the reason of Kutai Mining and Energy Services for excluding information on mining permits from public information that must be available at any time is unacceptable.
The reason was that this permit concerns the interests of many people.
Nonetheless, the Commission was aware that the permit information may include the personal data of wajah-pertambangan-batu-bara-di-kabupatenterkaya, retrieved 1 October 2018.
35 State Administrative Court of Samarinda Ruling number 17/G/2015/PTUN-SMD.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 246 | Safitri Right to Information, Judicial Activism and the Rule of Law... the holder.
Therefore, in order to protect those data, information regarding the identity of the permit holder must be obscured.
Other information regarding the permit, however, could be accessible.
The Provincial Information Commission further argued that the Right to Know of the Applicant is a Basic Right that is protected by the law.
Any state agency must be transparent and accountable in granting permits and policies.
Therefore, the information regarding mining business licenses must be open to the public.
The East Kalimantan Information Commission only based its considerations on the FoI Law.
Interestingly, the Supreme Court had broader their interpretation.
Besides using the FoI Law, the Supreme Judges used Article 67 of Environmental Law that states the obligation of every citizen to participate in maintaining and preserving a healthy environment.
Similarly, Article 65 of the same Law states that every citizen has the right to a healthy environment.
Both the Decision of the Information Commission and the Supreme Court Ruling have emphasized the protection of the rights of community groups above the protection and freedom of individual rights.
In the rule of law scheme presented by Tamanaha or Bedner, this judges' consideration shows partiality to the fulfillment of the highest substantive aspect of the rule of law where the basic principles of justice must be guaranteed through the discharge of group rights rather than the rights of individuals.
IV.
CONCLUSION AND SUGGESTION This article finds that Indonesia has relatively complete legal instruments that relate to the right to information in the environmental sector.
This, however, does not necessarily make the right to environmental information easily met.
Various public interest litigations in the mining sector indicate that the right to information is still difficult to attain.
One of the reasons is the tendency of public bodies to prioritize formal-procedural aspects in providing information and setting up the public consultation.
Improvements to this situation, interestingly, occurred in the courtroom.
The judicial activism has led to the emergence of a progressive legal interpretation of the procedure for public participation to determine mining zones and how to announce environmental permits.
The court's decisions state that information and consultation with the public must be substantive in terms of the material and in a way that is easily understood.
The efforts of environmental defenders to obtain mining information are also facilitated when the judge decides that the mining business permit is open information.
The excuse of certain public bodies to hide permit information on the basis of protection of citizens' personal data is rejected by the judges.
The court stated that the information must be open considering that there are collective rights of other citizens towards a good and healthy environment that must be fulfilled from their right to obtain mining information.
The cases studied also indicated that the courts protect group rights higher than individual rights.
This causes the highest substantive aspects of the rule of law to be simply obtained.
Obviously, the three cases discussed show better progress in the formation of the rule of law in Indonesia Nevertheless, more efforts are needed to maintain it.
The author suggests that progressive court decisions be informed to all levels of the judiciary in Indonesia.
There is a tendency for first-level courts to be more conservative in interpreting the law than the Supreme Court.
Another suggestion is to improve the legal empowerment of environmental defenders so Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Safitri Right to Information, Judicial Activism and the Rule of Law... | 247 that they are more willing to fight for environmental information, especially in the mining sector.
REFERENCES Book Kartodirdjo, Sartono, ‘Agrarian Radicalism in Java: Its Setting and Development’.
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Nicholson, David, Environmental Dispute Resolution in Indonesia (2009).
Leiden: KITLV Press.
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Brian Z, On the Rule of Law; History, Politics, Theory (2004).
Cambridge: Cambridge University Press.
Journal Article Bedner, Adriaan An Elementary Approach to the Rule of Law (2010).
Hague Journal on the Rule of Law, 2 : 48–74.
Benda, Harry J. and Lance Castle, ‘The Samin Movement’, Bijdragen tot de Taal -, Land en Volkenkunde, 125. no: 2, Leiden, pp.
207-240 Faiz, Pan Mohammad, Judicial Restraints vs.
Judicial Activism (2017).
Majalah Konstitusi 130:8-9.
Madrid, Juliana Zuluaga, Access to Environmental Information from Private Entities: A Rights-Based Approach (2017).
Review of European Community and International Environmental Law 26 (1): 38-53.
Niyati, Mahajan, Judicial Activism for Environmental Protection in India (2015).
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Vol 4(4): 7-14.
Partridge, Jodie.
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Access to Information: A fundamental right, a universal standard (2006).
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Indonesian Center for Environmental Law (ICEL), Strengthening the right to information for people and environment; Case study from Indonesia (2013).
Jakarta: ICEL.
Prayitno, Dessy Eko et al., Penafsiran atas Pengecualian dalam Hak atas Informasi: Pengalaman di Indonesia dan Negara Lain (2012): Jakarta: Indonesian Center for Environmental Law, pp.7-8.
Pricewaterhouse Cooper (PwC) Indonesia, Mining in Indonesia: Investment and Taxation Guide (2018).
Jakarta: PwC.
World Justice Project, Rule of Law Index 2017-2018 (2018).
Washington DC: World Justice Project.
Internet Gediminas Mesonis, Judicial Activism in the context of the jurisprudence of the constitutional court’ http://www.satv.tiesa.gov.lv/en/wpcontent/uploads/sites/2/2017/06/Book _Judicial-activism-of-theConstitutional-Court-in-a-DemocraticState_part_2_ENG.pdf retrieved 18 September 2018.
Rini, Rizky Ananda Wulan Sapta, Open Mining: From Extractive Data Disclosure to Citizen Empowerment (2016), https://www.opengovpartnership.org/s tories/open-mining-extractive-datadisclosure-citizen-empowerment accessed 16-10-2018. http://www.satv.tiesa.gov.lv/en/wp-content/uploads/sites/2/2017/06/Book_Judicial-activism-of-the-Constitutional-Court-in-a-Democratic-State_part_2_ENG.pdf%20retrieved%2018%20September%202018 http://www.satv.tiesa.gov.lv/en/wp-content/uploads/sites/2/2017/06/Book_Judicial-activism-of-the-Constitutional-Court-in-a-Democratic-State_part_2_ENG.pdf%20retrieved%2018%20September%202018 http://www.satv.tiesa.gov.lv/en/wp-content/uploads/sites/2/2017/06/Book_Judicial-activism-of-the-Constitutional-Court-in-a-Democratic-State_part_2_ENG.pdf%20retrieved%2018%20September%202018 http://www.satv.tiesa.gov.lv/en/wp-content/uploads/sites/2/2017/06/Book_Judicial-activism-of-the-Constitutional-Court-in-a-Democratic-State_part_2_ENG.pdf%20retrieved%2018%20September%202018 http://www.satv.tiesa.gov.lv/en/wp-content/uploads/sites/2/2017/06/Book_Judicial-activism-of-the-Constitutional-Court-in-a-Democratic-State_part_2_ENG.pdf%20retrieved%2018%20September%202018 http://www.satv.tiesa.gov.lv/en/wp-content/uploads/sites/2/2017/06/Book_Judicial-activism-of-the-Constitutional-Court-in-a-Democratic-State_part_2_ENG.pdf%20retrieved%2018%20September%202018 https://www.opengovpartnership.org/people/rizky-ananda-wulan-sapta-rini https://www.opengovpartnership.org/stories/open-mining-extractive-data-disclosure-citizen-empowerment https://www.opengovpartnership.org/stories/open-mining-extractive-data-disclosure-citizen-empowerment https://www.opengovpartnership.org/stories/open-mining-extractive-data-disclosure-citizen-empowerment Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 248 | Safitri Right to Information, Judicial Activism and the Rule of Law... Conference Presentation Safitri, Myrna A.
‘Social Movement in Indonesian Mining Law Enforcement: The case of peasants-scholars nexus in karst mining dispute in Java’ (2018).
A paper presented in International Conference on International Conference on Energy and Mining Law 2018, Jakarta 18 September 2018.
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.02.06 | 217 State Control over Natural Resources Oil and Gas in Indonesia Sabungan Sibarani1 1Faculty of Law, Borobudur University Email: ssibarani01@gmail.com Submitted : 2018-10-01 | Accepted : 2018-10-26 Abstract: Most gas-producing companies are the same foreign companies as oilproducing companies.
Investment to produce gas is funded by government banks in industrialized countries.
Thus, the exploration and exploitation of natural gas is intended to meet export needs to industrialized countries.
Article 33 of the 1945 Indonesian Constitution envisages that the use of natural resources should be prioritized to the maximum extent possible to meet domestic needs and the greatest prosperity of the people.
This implies state control over the use of natural resources.
It is argued that mining business arrangements, especially Oil and Gas, can be considered as a part of the implementation of state control over natural oil and gas resources.
This means that the authority in controlling natural resources of Oil and Gas is only controlled by the State and carried out by the Government as the executor of Oil and Gas business activities.
Such arrangement is in accordance with the provisions of Article 4 paragraph (1) and (2) Law No .
22 of 2001 concerning Oil and Natural Gas.
This paper analyses the State control over the use of oil and gas as natural resources.
The analyses was carried out through the study of the Decision of the Constitutional Court of the Republic of Indonesia Number: 002 / PUU-I / 2003.
Using normative juridical approach, this paper argues that the Indonesian Laws on oil and gas are incontrary with the 1945 Indonesian Constitution.
Keywords: state control, state sovereignty, oil and gas laws, Indonesian constitutiion, natural resources I.
INTRODUCTION Oil and gas is one of natural resources vital support the national economy.
Gas as a branch of production of an important for the country and dominate countless lives statecontrolled, according to mandate of the constitution.1 (Journal of Law, Policy and Globalization, 2014).
Oil and Gas natural 1 Asror Nawawi, ‘Sharing Revenue of Oil and Gas Industry between Center and Local Government resource energy plays an important role in the global and national economy.
This is very meaningful for national economic growth, because of its linkages with state revenues, oil and gas exports and the entire balance of payments.
The linkages can actually be seen significantly and empirically from the events of the global economic crisis in the past few from Legal Perspective’ (2014) 26 Journal of Law, Policy and Globalization mailto:ssibarani01@gmail.com Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 218 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia years and continue to this day, due to the world energy crisis.2 Management of oil and gas in Indonesia has undergone several changes.
Recent development shows that in order to fulfill the principles of democracy and public transparency by the public, a Supervisory and Regulatory Body was established in the upstream and downstream fields of Oil and Gas.3 Furthermore, the enactment of Law No.
22 Year 2001 concerning Oil and Gas marks the beginning era of authority from an independent State Agency, namely the Oil and Gas Implementing Agency (BP Migas) which carried out upstream and downstream activities, as well as government authorization in the Oil and Gas business sector coordinated by the Director General of Oil and Gas acting for and on behalf of the Minister of Energy and Mineral Resources, which technically represent the state in carrying out the mandate of the Constitution are reflected in Article 33 of the 1945 Constitution of the Republic of Indonesia.4 Although there are a number of institutions related to Oil and Gas Law, this research finds that it is uneasy for the government to control such natural resources.
The main difficulty is an opportunity from the Oil and Gas law, its relationship to the work area, which can be followed by any national or international private legal entity.
The working area for a long time, to be vulnerable to state losses on natural oil and gas resources, is associated with possible damage.
In the future, we must get attention with new models that are more 2 Syaiful Bakhri, Hukum Migas Telaah Penggunaan Hukum Pidana Dalam Perundang-Undangan, (Yogyakarta: Total Media, 2012), p. 14.
3 Ibid, 12 4 Ibid, 13 5 Ibid, 13-14 6 Adrian Sutedi, Hukum Pertambangan, (Jakarta: Sinar Grafika, 2011), 1-2 flexible in terms of long-term mastery of the work area.5 Based on these various obstacles, the government temporarily still allows foreign capital to develop in Indonesia, even though state administrators have quite diverse views on the existence of foreign capital in Indonesia.6 Unfortunately regulation oil and gas under the constitution that Law No.
22 of 2001 on Oil and Gas derogate meaning of such authorization.
Law quo becomes the liberalization of the business of oil and gas to the detriment of Indonesia and vice versa profitable for capitalists.
This Act has been review several times to the Constitutional Court and several times canceled clauses in it.7 Efforts to take over foreign-owned Oil and Gas companies and oil mines controlled by these companies have actually been going on for a long time, since Indonesia proclaimed its independence.
Nonetheless, the effort to take over all Oil and Gas companies and their wells is not an easy job, even it can be said that the business has never been successful until now.
The foreignowned oil and gas companies remain firmly linked in Indonesia.
The government can only give and replace the regulations that must be considered as long as the foreign oil and gas companies operate in the territory of Indonesia, that too by taking a complicated process with various long and tiring negotiations.8 And Opinion of the Court gained legitimacies in the philosophical level based on the theory of social contract.
In this 7 Mochamad Adib Zain, ‘Politics of Law on the State Contro; of oil and Gas in Indonesia: Gas Liberalization and the Hesistancy of Constituonal Court’ (2016) 1 (1) Journal of Indonesian Legal Status.
8 Ibid, 5 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 219 concept, people do form a state social contract.
In the contract the people give part of their rights to the state to care for.
The consensus in the social contract embodied in the Constitution as the supreme agreement of all citizens.9 It is a surprising fact that while oil and gas potential can be contribute to national economic development, unfortunately, the poverty rate in Indonesia, especially local people around the mining area is remain.10 Research shows that Indonesia is ranked as the seventh largest gas exporter in the world from the 10 largest gas producing countries in the world after Australia.11 However, what has been done by the authorities at this time has not produced a great hope for the people of Indonesia.
As a result, foreign companies dominate much of Indonesia's land and natural resources, while the Indonesian people are marginalized and become spectators of foreign business activities in extracting Indonesia's natural wealth.
The direction and purpose of the state must be returned to the ideals of the founders of the state as embodied in the Pancasila and the 1945 Constitution of the Republic of Indonesia.
On this basis, Indonesia can turn towards the direction of Indonesia that is socially just and fair and civilized.12 Even though it has a lot of natural wealth and is very complete, the Indonesian government is considered not optimal in using it for the national interest and its own people.
Most of the Oil and Gas wealth is controlled by foreign companies.
More than 85% of Indonesia's crude oil production is controlled by foreign companies from the United States, China, Japan and countries in 9 M. Laica Marzuki, ‘Konstitusi dan Konstitusionalisme’, Jurnal Konstitusi, Vol.
7, No.
4, Agustus 2010 10 M. Hatta Taliwang and Salamuddin Daeng, Indonesiaku Tergadai, (Jakarta: Institute Ekonomi Politik Soekarno Hatta, 2011), p. 3 Europe.
Furthermore, the Indonesian government buys oil from foreign companies at market price levels.
Moreover, the Indonesian government must issue cost recovery to replace all operational costs incurred by foreign companies during oil and gas exploration and exploitation.
Some of Indonesia's oil products are also exported abroad, such as to Singapore to be processed by oil refineries there.
Indonesia then reimported Fuel Oil (BBM) processed by Singapore oil refineries.
Singapore has multiplied profits from the surplus generated from the processing of Indonesia's oil wealth.
Because Indonesian people must buy their own oil at an expensive market price level.13 Similarly, the wealth of natural gas.
Most gas-producing companies are the same foreign companies as oil-producing companies.
Investment to produce gas is financed by government banks in industrialized countries.
So that the exploration and exploitation of natural gas is intended to meet export needs to industrialized countries.
For example, natural gas exploration and exploitation activities by British Petroleum (BP) Indonesia operating in Tangguh Field, Papua Province.
The plan is for BP production to focus on the exports of the four countries, namely the United States, China, South Korea and Japan.
The four buyers include Fujian China LNG of 2.6 million tons per year, Korea's K-Power of 0.6 million tons per year, POSCO Korea of 0.55 million tons per year, and Sempra Energy Mexico of 3.6 million tons per year.
In addition, BP has agreed to the principles of gas sale and purchase agreements with Tohoku Japan.
With a purchase contract from 11 Ibid, 16 12 Ibid, 4-5 13 Ibid, 17 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 220 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia Tohoku Japan, the number of requests reached the Tangguh LNG plant capacity for two trains, which is an average of 7,6 million tons per year.
The entire contract relates to a funding commitment of USD 2,6 billion from 9 financial institutions whose agreement was signed in August 2006.14 The low income of natural resources actually occurs in the midst of the increasing rate of exploitation of natural resources from year to year.
In addition, the vast contract of Oil and Gas works, mining work contracts , coal work contracts , and mining rights are increasing, as investment increases in these sectors.15 One of the various facilities provided by the government is the enactment of Law Number 25 of 2007 concerning Investment (UUPM).
The Act provides extraordinary facilities to investors, namely in the fields of land, taxation and finance.
The facility helped reduce state revenues, while the government continued to strive to boost state revenues from the tax sector.16 From the explanation of the background above, the author argues that there is a problem that questions the sovereignty of the State over the natural resources of Oil and Natural Gas based on the 1945 Constitution of the Republic of Indonesia.
Therefore, according to all the explanations from the above background, the authors are interested in discussing and analyzing concerning the control of the State over natural resources of Oil and Gas based on the 1945 Constitution of the Republic of Indonesia through the study of the Decision of the Constitutional Court of the Republic of Indonesia Number: 002 / PUU-I / 2003.
14 Ibid, 18 15 Ibid, 39-40 II.
LEGAL MATERIALS AND METHOD This research adopted normative juridical method which examine relevant laws regarding the management of natural resources, especially oil and gas.
Such examination is based on the 1945 Indonesian Constitution to discuss how the role of state in managing its natural resources for its people’s prosperity.
Legal materials used in this research include the 1945 Indonesian Constitution, Indonesian Act Law Number 44 Prp of 1960 concerning Oil and Gas Mining, Indonesian Act Number 8 of 1971 concerning the State Oil and Gas Mining Company and Indonesian Act Number 22 Year 2011 regarding Oil and Gas.
Relevant journals and books are also used to support academic arguments of this research.
III.
RESULTS AND DISCUSSIONS Sovereignty of the State for Oil and Gas Natural Resources Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia states that "Earth and water and the natural resources contained therein are controlled by the State and used for the greatest prosperity of the people".
Controlled by the state interpreting the State's Right to Control the assets of natural wealth.
An absolute sovereign state over the wealth of natural resources.
Used as much as possible the prosperity of the people interpreted as the right of ownership of natural wealth is the people of Indonesia.
Both of these meanings are one entity.
The meaning of "controlled by the State" is an instrument, while "the greatest prosperity of the people" is the ultimate goal of managing natural wealth.17 16 Ibid, 40 17 Adrian Sutedi, above n.5 Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 221 The natural wealth of the Indonesian people that is authorized to the state is mandated to be managed properly in order to achieve the goals of the Indonesian state.
The government as a representation of the state is given the right to manage the wealth of natural resources to be enjoyed by the people in a fair and equitable manner.
The prosperity of the people is the spirit and ideals of the end of the welfare state (welfare state) that must be realized by the Indonesian state and government.
Natural resource management is one of the instruments to achieve it.
In terms of the utilization of natural resources, in a state administration, there are three forms of state involvement in the management of natural resources, namely regulation (regulation), business management (management), and supervision.
The regulatory aspect is the absolute right of the state which cannot be left to the private sector and is the most important aspect played by the state among other aspects.
Said the state to fully control the meaning of the state, through the government, has the authority to determine the use, use, and rights to natural resources within the scope of regulating, managing, managing, and supervising the management, and utilization of natural resources.18 In the consideration of Law No.
44 of Prp of 1960 concerning Oil and Gas Mining, stated "that oil and natural gas has a very important function for the development of a just and prosperous society, compared to other minerals, that oil and gas production The earth is a production branch that is important for the State and controls the livelihood of many people, whether directly or indirectly, that oil and gas have a special meaning for national defense.
State control over the management of Oil and Gas natural 18 Ibid resources, Article 4 paragraph (1) of Law Number 22 Year 2001 concerning Oil and Natural Gas states that "Oil and Gas as strategic non-renewable natural resources contained in the Mining Law Area Indonesia is a national wealth controlled by the state ".
National wealth sentences controlled by the state mean that natural wealth is national wealth controlled by the state, through regulation, company, management, supervision, and utilization of Oil and Gas natural resources for the prosperity of the people.
Because of the unique characteristics of natural resources, the exploitation cannot all be carried out by the state.
State business in the scope of exploitation (concession rights) can be delegated to private legal entities or individuals within the Indonesian mining jurisdiction with a Mining Authority (KP), Contract of Work (KK), or Cooperation Agreement.
However, the devolution does not mean that the private sector is the owner of the mining material being cultivated.
The state remains sovereign over mining (natural resources).
In the case of transfer of tenure rights, the state cannot transfer beyond what is controlled.
The nature of transfer of tenure rights is the right to operate in the form of mining concessions to holders of the Mining Authority.
The Mining Authority is not the right to own mining material but a permit to conduct a mining business.
The Contract of Work is not a mechanism for transferring state rights, but only a means or instrument that allows private parties to participate in mining businesses.
Allowing the private sector to have monopoly rights in controlling, commercializing, and distributing the production of mining business in the case of Oil and Gas is a violation of the state Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 222 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia constitution and can harm the interests of the community as a whole.
The state representative in carrying out the agreement is the Government.
The Contract of Work and the Mining Authority are not the transfer of the absolute power of the mining material from the state to the contractor, but rather the cooperation between the state and the contractor in the matter of exploiting mining materials.
The position of the state in this relationship is in the capacity as the owner of the mine material (principal), and the contract opponent as the executor of mining (contractor).
Mining business arrangements, especially Oil and Gas, are part of the implementation of state control over natural oil and gas resources.
This arrangement is carried out by the government with the aim that the exploitation of Oil and Gas provides benefits for the country and for the greatest prosperity of the people.
With the decentralization policy, Regional Governments (Districts and Cities) are given the authority to regulate the Oil and Gas mining business in their regions in a responsible and proportionate manner.
Responsibly interpreted the use is aimed at the greatest Regulation on Oil and Gas in Indonesia Before the enactment of Law No.
22 of 2001 concerning Oil and Natural Gas On the consideration of Law No.
44 Prp of 1960 concerning Oil and Gas Mining, stated, "That oil and gas has a very important function for the development of a just and prosperous society, compared to other minerals, that oil and gas production The earth is a production branch that is important for the State and controls the livelihood of many people, whether directly or indirectly, that oil and natural gas have a special meaning for national defense ".
Then at the consideration of Law Number 8 of 1971 concerning the State Oil and Gas Mining Company stated, "That oil and gas is a strategic excavation material, both for the economy of the country and for the interests of national defense and security".
Mastery of the State over Oil and Gas Article 2 of Law No.
44 Prp Year 1960 states that "All oil and gas extracts that are within the Indonesian mining jurisdiction are national assets controlled by the State".
This confirms that Oil and Gas are national assets controlled by the State for the greatest benefit of the people.
In the case of the implementation of Oil and Gas business activities carried out by the State Company, PERTAMINA.
This is regulated in the provisions of Article 3 paragraph (2) of Law No.
44 Prp of 1960 concerning Oil and Gas Mining which reads "Oil and gas mining business is carried out by a solely State Company".
Oil and Gas Business Activities Based on the provisions of Article 4 of Law No.
44 Prp of 1960 concerning Oil and Gas Mining, Oil and Gas mining business activities are integrated in one unit, covering exploration, exploitation, refining and processing, transportation and sales activities.
And all business activities are carried out entirely by PERTAMINA in accordance with the provisions of Article 6 paragraph (1) of Law No.
8 of 1971 concerning the State Oil and Gas Mining Company, which reads "The Company is engaged in the operation of oil and gas which includes exploration, exploitation, refining and processing, transportation and sales".
Then based on the provisions of Article 7 paragraph (1) of Law No.
8 of 1971 concerning the State Oil and Gas Mining Company, which reads "Corporate Capital is Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 223 State assets that are separated from the State Budget of Revenue and Expenditure as large as those planted in PN PERTAMINA until the time of dissolution, the amount of which is listed in the Opening Balance Sheet which will be ratified by the Minister of Finance " In this case, PERTAMINA's capital and wealth are separate from the State's wealth.
PERTAMINA in carrying out its Oil and Gas business activities can cooperate with contractors through Production Sharing Contracts, as stipulated in Article 12 paragraph (1) of Law No.
8 of 1971 concerning the State Oil and Gas Mining Company.
The Minister may appoint another party as a contractor for a State Company if necessary to carry out work that has not been or cannot be carried out by the State Company itself as the holder of the mining authority, in accordance with the provisions of Article 6 paragraph (1) of Law No.
44 Prp of 1960 concerning Oil and Gas Mining.
In other sides, It is true there have been corruption, collusion and and nepotism in Pertamina.
But accuse matter of business monopoly as the only cause is misguided thought unforgivable.
The root of corruption in Pertamina is wrong management controlled by the military at Pertamina.
Lack of accountability within the management of Pertamina been allowed by the government because the government enjoyed also the flow of funds from the corruption of the government enjoyed also the flow of funds from the corruption of it.
There were no report of financial book keeping there are no report on business operations so that Pertamina is like a state within a state.19 (Journal of Modern Asian Studies, 2006) and (Journal of Pacific Affair, Winter, 19751976) 19 Harold Crouch, ’General and Business in Indonesia’, (1975-1976) 48 (4) Pacific Affairs; Rajeswary Ampalavanar Brown, ‘Indonesia State Revenue for Oil and Gas Business The holder of the mining authority pays to the State the defined contribution, exploration and / or exploration contribution and / or other payments related to the granting of mining authority.
The details and size of the State levies are regulated by Government Regulation.
In implementing oil and gas mining operations in accordance with the provisions contained in this Law, the Company must deposit the State Treasury, the following amounts: 1.
60% of net operating income (net operating income) on the results of the Company's own operations; 2.
60% of the net operating income (net operating income) of the Production Sharing Contract before being divided between the Company and the Contractor; 3.
All results obtained from the Work Agreement referred to in Act Number 14 of 1963; 4.
60% of the Company's bonus receipts obtained from the Production Sharing Contract.
After the enactment of Law No.
22 of 2001 concerning Oil and Natural Gas Since the enactment of Law No.
22 of 2001 concerning Oil and Natural Gas, then Act Number 44 Prp of 1960 concerning Oil and Gas Mining, Law Number 15 of 1962 concerning the Stipulation of Government Regulation in Lieu of Law Number 2 of 1962 concerning Obligations of Oil Companies to Meet Needs Domestic, Law Number 8 of 1971 concerning Pertamina jo.
Law Number 10 of 1974 Concerning Amendment to Law Number 8 of 1971 concerning Pertamina is Corporations, Cronyism, and Corruption’ (2006) 40 (4) Modern Asian Studies Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 224 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia no longer valid, but the implementing regulations of the four laws remain in force as long as they do not conflict or have not been replaced with new regulations based on Law No.
22 of 2001 concerning Oil and Natural Gas.
Mastery of the State over Oil and Gas In accordance with the provisions of Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia, Oil and Gas are controlled by the state.
The purpose of state control is that national wealth can be utilized for the greatest prosperity of the Indonesian people.
Thus, both the interests of individuals, communities, and businesses, do not have the right to control or even have Oil and Gas contained therein.
On the consideration of Law No.
22 of 2001 concerning Oil and Gas, states "that oil and natural gas are strategic non-renewable natural resources controlled by the state and are vital commodities that control the livelihood of many people and have an important role in the national economy so that management must be maximized provide prosperity and prosperity for the people ".
Article 4 paragraph (1) Law No.
22 of 2001 concerning Oil and Gas, which reads "Oil and Gas as a strategic non-renewable natural resource contained in the Indonesian Mining Law Area is a national wealth controlled by the state", has also affirmed the control of the state over Oil and Gas in Indonesia .
The state control is held by the Government as the holder of the mining authority, in accordance with the provisions of Article 4 paragraph (2) of Law No.
22 of 2001 concerning Oil and Gas which states that "The control by the state as referred to in paragraph (1) is held by the Government as the holder of the Mining Authority".
Mining Authority is the authority given by the state to the government to conduct Oil and Gas business activities.
Oil and Gas Business Activities Based on the provisions of Article 5 of Law No.
22 of 2001 concerning Oil and Gas, Oil and Gas business activities are divided into two types, namely Upstream Business Activities and Downstream Business Activities.
Upstream Business Activities Upstream Business Activities are regulated in Article 1 number 7, Article 5 to Article 6, and Article 9 through Article 22 of Law No.
22 of 2001 concerning Oil and Natural Gas.
Upstream Business Activities are business activities that focus on Exploration and Exploitation business activities.
Upstream Business Activities are carried out and controlled through Cooperation Contracts (KKS).
Cooperation contracts are production sharing contracts or other forms of cooperation contracts in exploration activities benefit the country and the results are utilized for the welfare of the people.
In accordance with the provisions of Article 22 paragraph 1 of Law No.
22 of 2001 concerning Oil and Gas, Business Entities or Permanent Establishments must submit a maximum of 25% (twenty five percent) of their shares from the production of Petroleum and / or Natural Gas to meet domestic needs.
Downstream Business Activities Downstream Business Activities are regulated in Article 1 number 10, Article 5, Article 7, Article 23 to Article 25 of Law No.
22 of 2001 concerning Oil and Natural Gas.
Downstream business activities are carried out through a fair, healthy and transparent Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 225 business competition mechanism.
Downstream business activities are carried out with a business license.
A business license is a permit granted to a business entity or permanent establishment to carry out processing, transportation, storage and / or trading in order to obtain profits and / or profits.
A new business entity can carry out its activities after obtaining a business license from the government.
Business licenses needed for Oil and Gas business activities are distinguished by: 1.
Processing business license, 2.
Transportation business license, 3.
Storage business license, 4.
Commercial business license Every business entity can be given more than one business license as long as it does not conflict with the provisions of the prevailing laws and regulations.
Business license must at least contain: 1.
Organizer name 2.
Type of business provided 3.
Obligations in the operation of business 4.
Terms Every business license that has been granted can only be used according to its purpose.
The government may submit written reprimands, suspend activities, freeze activities or revoke business licenses based on: 1.
Violation of one of the requirements stated in the business license.
2.
Repetition of violations of business permit requirements.
3.
Does not meet the requirements stipulated under this law.
Before carrying out the revocation of a business license, the government first provides an opportunity for a certain period of time to the Business Entity to eliminate the violations that have been committed or fulfillment of the stipulated requirements.
Downstream business activities can be carried out by: 1.
State-Owned Enterprises (BUMN) 2.
Regional Owned Enterprises (BUMD) 3.
Cooperatives, small businesses, and, 4.
Private Enterprise.
The four types of business entities can submit applications to obtain business licenses in carrying out downstream business activities.
Position of Implementing Agency and Regulatory Body in Upstream and Downstream Business Activities The legal provisions governing the Executing Agency are Article 1 number 23, Article 44 to Article 45 of Law No.
22 of 2001 concerning Oil and Natural Gas.
The Implementing Agency is an agency established to control upstream business activities in the Oil and Gas sector.
The position of the Executing Agency is a StateOwned Legal Entity.
The State Owned Legal Entity has the status as a subject of civil law and is an institution that does not seek profit and is managed professionally.
The function of the Executing Agency is to supervise upstream business activities so that the extraction of state-owned natural oil and gas resources can provide maximum benefits and state revenues for the state for the greatest prosperity of the people.
The task of the Executing Agency is regulated in Article 44 paragraph (3) of Law No.
22 of 2001 concerning Oil and Natural Gas Jo.
Article 11 Government Regulation Number 42 of 2002 concerning the Implementing Agency for Upstream Oil and Gas Business Activities.
Implementing Agency tasks, namely: Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 226 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia 1.
Giving consideration to the minister discretion in terms of preparation and work areas as well as offer employment contract together.
2.
Carry out work contracts together.
3. Review and submit a field development plan which will first be produced in a working area to the minister to get approval.
4.
Approving the field development plan, other than those listed in number 3 above.
5.
Approve work plan and budget.
6.
Exercise supervision and report to the minister on the implementation of the employment contract together.
7.
Appoint the state Oil and Gas seller who can provide the maximum profit for the country.
The Regulatory Body is regulated in Article 1 number 24, Article 8 or (4), Article 46 to Article 49 of Law No.
22 of 2001 concerning Oil and Natural Gas.
The Regulatory Body is an agency established to regulate and supervise the supply and distribution of Oil and Gas fuels in downstream business activities.
The functions of the Regulatory Agency are as follows: 1.
Supervise the implementation of the supply and distribution of Petroleum fuels and the transport of natural gas through pipelines.
This provision is intended to protect the interests of the consumer community towards the continuity of the supply and distribution of fuel oil in all parts of Indonesia.
Supervision of the transport of natural gas through pipelines is carried out to optimize and prevent the monopolization of the use of transmission, distribution and storage pipeline facilities by certain business entities.
2.
Make arrangements so that the availability and distribution of Oil and Gas fuels set by the government can be guaranteed throughout the territory of the Republic of Indonesia.
3.
Increase the utilization of natural gas in the country.
The government is responsible for availability and service to avoid the scarcity of fuel oil throughout Indonesia.
The duties of the Regulatory Agency include the arrangement and stipulation regarding: 1.
Availability and distribution of fuel oil 2.
National oil fuel reserves 3.
Utilization of Oil fuel transportation and storage facilities, utilization of Oil fuel transportation and storage facilities are primarily intended for certain areas or remote areas where the market mechanism has not been able to work so that the existing transportation and storage facilities need to be regulated to be utilized so that optimal conditions are achieved and achieved the lowest possible price.
4.
Tariff for transporting natural gas through pipes.
5.
Natural gas prices for households and small customers, households are every consumer who uses natural gas for household use.
6.
The operation of natural gas transmission and distribution, the operation of natural gas transmission and distribution are regulated by the regulatory body relating to the business aspects of the natural gas transmission and distribution activities.
7.
Supervision in fields in numbers 1 to 6.
The structure of the Regulatory Body consists of the Committee and the Field.
The Committee consists of: Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 227 1.
One chairman concurrently a member, and 2.
Eight members from professionals.
The Chair and Committee members of the Regulatory Body are appointed and dismissed by the President after obtaining approval from the House of Representatives of the Republic of Indonesia (DPR RI).
The Regulatory Body in carrying out supervision and regulation is responsible to the President.
The establishment of a Regulatory Body is stipulated by a Presidential Decree.
The budget for operational costs of the Regulatory Body is based on the State Budget of Revenue and Expenditure and contributions from the Business Entity which are regulated in accordance with the prevailing laws and regulations.
State Revenue for Oil and Gas Business Arrangements regarding state revenues for Oil and Gas businesses are regulated in Article 31 to Article 32 of Law No.
22 of 2001 concerning Oil and Natural Gas.
Business Entities or Permanent Establishments that carry out Upstream Business Activities as referred to in Article 11 paragraph (1) are obliged to pay state revenues in the form of taxes and Non-Tax State Revenues.
The state revenue in the form of taxes such as the following : 1.
Taxes; 2.
Import duties, and other levies on imports and excise; 3.
Local taxes and regional retribution.
Non-tax state revenues include the following: 1.
State section; 20 Charles E Davis, ‘Shaping State Fracking Policies in the United States: An Analysis of Who, What, and How’, (2017) Sage Journal 2.
State levies in the form of permanent contributions and Exploration and Exploitation contributions; 3.
Bonuses.
Provisions concerning the determination of the amount of the state, state levies, and bonuses as referred to in paragraph (3), as well as the procedures for depositing, are further regulated by Government Regulation.
In the meaning that, the state and local governments have regulated oil and gas over the past decade following the expanded industry use of new technologies like hydraulic fracturing (fracking) and horizontal drilling.
A consequence of fracking was a substantial increase in energy production accompanied by the emergence of policy concerns about how resource development and jobs could be balanced with efforts to maintain environmental quality20 Resume of Decision of the Constitutional Court of the Republic of Indonesia Based on quotations from the results of the Decision of the Constitutional Court of the Republic of Indonesia Number: 002 / PUU-I / 2003 which granted the Petitioners' petition for material review in part; Declare: 1.
Article 12 paragraph (3) insofar as the words "are authorized", 2.
Article 22 paragraph (1) as long as the words "most" are said, 3.
Article 28 paragraphs (2) and (3) which reads "(2) The price of fuel oil and natural gas prices are left to a fair and fair business competition mechanism; (3) The implementation of price policy as referred to in paragraph (2) does not Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 228 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia reduce the Government's social responsibility towards certain groups of people ".
Law Number 22 of 2001 concerning Oil and Natural Gas (State Gazette of the Republic of Indonesia of 2001 Number 136, Supplement to the State Gazette of the Republic of Indonesia Number 4152) "contradicts the 1945 Constitution of the Republic of Indonesia".
Stating Article 12 paragraph (3) insofar as the words "empowered", Article 22 paragraph (1) as far as the words "most", and Article 28 paragraph (2) and (3) Law Number 22 Year 2001 concerning Oil and Gas (State Gazette of the Republic of Indonesia of 2001 Number 136, Supplement to the State Gazette of the Republic of Indonesia Number 4152) does not have binding legal force.
The argument of the Petitioners in the Decision of the Constitutional Court of the Republic of Indonesia Number 002 / PUU-I / 2003, including: First, Article 12 paragraph (3) of Law Number 22 Year 2001 contradicts Article 33 of the 1945 Constitution by arguing that foreign companies will dominate the national oil and gas industry, in addition to reducing the authority of the President and accumulating power over oil and gas resources in the hands of the Minister of Energy and Mineral Resources.
Article 12 paragraph (3) Law Number 22 Year 2001 states, "The Minister determines a Business Entity or Permanent Establishment that is authorized to carry out Exploration and Exploitation business activities in the Work Area as referred to in paragraph (2)" Against this matter, the Court does not agree with the Petitioners who consider that the provision causes a huge accumulation of power in the ESDM Minister, because it is an internal matter of the Government that is not relevant in the a quo case .
However, the Court assesses the provisions referred to are not in accordance with Article 4 paragraph (2) of the a quo law which states that the control by the state is held by the Government as the holder of the Mining Authority.
Juridically, the authority to control the state only exists with the Government, which cannot be given to a business entity as stated in Article 1 number 5 of the a quo law.
Meanwhile, Business Entities and Permanent Establishments only carry out these activities based on cooperation contracts with limited economic rights, namely the division of part of the benefits of oil and gas as stipulated in Article 6 paragraph (2).
In the field of state administrative law, the notion of delegation of authority is the transfer of power from the giver of authority, namely the state, so that by the inclusion of the word "given authority to the Business Entity and Permanent Establishment" the state control is lost.
Therefore, the words "empowered" are not in line with the meaning of Article 33 paragraph (3) of the 1945 Constitution, in which the working area of the upstream sector includes the earth, water, and natural resources contained therein, one of which is oil and natural gas, which is the right of the state to master through the implementation of the functions of regulating (regelen), roling (bestuuren), managing (beheeren), and supervising (toezichthouden).
Therefore, the words "given authority" in Article 12 paragraph (3) referred to are contradictory to the 1945 Constitution.
Secondly, Article 22 paragraph (1) of the a quo law which reads "Business Entities or Permanent Establishments must submit at most 25% (twenty five percent) of their shares from the production of Petroleum and / or Natural Gas to meet domestic needs.
"As Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 229 contradictory to the 1945 Constitution.
From the sound of the article that a Business Entity or Permanent Establishment is obliged to submit a maximum of 25% (twenty five percent) of its share of oil and gas production to meet domestic needs, it may cause the Business Entity or Permanent Establishment not carry out its responsibilities to participate in meeting domestic fuel needs as mandated in Article 1 number 19 in the context of the elaboration of Article 33 paragraph (3), namely the principle of the greatest prosperity of the people by prioritizing domestic needs.
The Court considers that the principle of the greatest prosperity of the people in the oil and gas production branch implies not only the low price and good quality, but also the guarantee of the availability of fuel and supply for all levels of society.
With the provision of Article 22 paragraph (1) of the a quo law which states the words "most" then there is only a ceiling above (the highest percentage benchmark) without giving the lowest ceiling limit, this can be used by business actors as a juridical reason for only submit the portion as low as possible (for example up to 0.1%).
Therefore, the Court considers the words "at most" in the clause "... must submit at most 25% (twenty five percent) ... "must be abolished because it contradicts Article 33 paragraph (3) of the 1945 Constitution.
Furthermore, the regulation concerning the implementation of the 25% of the intended portion is set forth in the Government Regulation as stipulated in Article 22 paragraph (2) a quo law ; Third, Article 28 paragraph (2) of the a quo law, in addition will cause price differences between regions / islands which, according to the Petitioners, can trigger national disintegration and social jealousy, also contrary to the practice of fuel price policy in each country where The government also regulates the price of fuel in accordance with the national energy and economic policies of each country, because the fuel commodity is not included in the WTO agenda.
With regard to the arguments of the Petitioners referred to, the Court is of the opinion that the Government's intervention in the pricing policy must be the authority prioritized for production branches that are important and / or control the livelihood of many people.
The government can consider many things in determining the price policy including the prices offered by the market mechanism.
Article 28 paragraphs (2) and (3) the a quo law prioritizes competition mechanisms and only then does the Government's intervention involve certain groups of people, so that it does not guarantee the meaning of the principles of economic democracy as stipulated in Article 33 paragraph (4) of the 1945 Constitution, for prevent the emergence of strong practices that eat the weak.
According to the Court, the price of domestic fuel oil and natural gas prices should be determined by the government by taking into account the interests of certain groups of people and considering the mechanism of fair and fair business competition.
Therefore Article 28 paragraphs (2) and (3) must be declared contradictory to the 1945 Constitution.
Analysis on Indonesian Constitutional Court Decision Based on the resume of the Republic of Indonesian Constitutional Court Decision Number 002 / PUU-I / 2003 above, the author agrees with the decision of the Republic of Indonesia's Constitutional Court which invalidates the provisions of Article 12 paragraph (3), 22 paragraph (1), and 28 paragraph (2) and (3 ) Law No.
22 of 2001 concerning Oil and Natural Gas.
The following are some opinions of the authors Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 230 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia through various analyzes related to the decision of the Republic of Indonesia Constitutional Court, including the following: First, Article 12 paragraph (3) of Law No.
22 of 2001 concerning Oil and Natural Gas, which reads "The Minister determines a Business Entity or Permanent Establishment that is authorized to carry out Exploration and Exploitation business activities in the Working Area as referred to in paragraph (2)".
In the article there are words "empowered", which can be interpreted as devolution of authority from the giver of authority, namely the state, so that by the inclusion of the word "given authority to Business Entities and Permanent Establishments" the state control becomes reduced, and turns to parties investor.
In this case it can be said that there has been privatization of the Oil and Gas natural resources sector, where the private sector has more control over Oil and Gas business than the State.
Constitutionally, all natural wealth and production branches that control the livelihood of the public are controlled by the State and used to the greatest prosperity of the people, in accordance with the provisions of Article 33 paragraph (2) and (3) of the 1945 Constitution of the Republic of Indonesia.
Juridically, the authority in controlling natural resources of Oil and Gas is only controlled by the State and carried out by the Government as the executor of Oil and Gas business activities, in accordance with the provisions of Article 4 paragraph (1) and (2) Law No.
22 of 2001 concerning Oil and Natural Gas.
The author argues that the provisions of Article 12 paragraph (3) of Law No.
22 of 2001 concerning Oil and Natural Gas is contrary to Article 33 paragraphs (2) and (3) of the 1945 Constitution of the Republic of Indonesia, which reads "(2) Production branches that are important to the state and which affect the livelihood of many people are controlled by the state.
(3) Earth and water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people ".
Also contrary to the provisions of Article 4 paragraph (1) and (2) of Law No.
22 of 2001 concerning Oil and Gas, which reads "Oil and Gas as a non-renewable strategic natural resource contained in the Indonesian Mining Law Area are national assets controlled by the state.
(2) The control by the state as referred to in paragraph (1) shall be held by the Government as the holder of the Mining Authority.
Therefore, the provisions of Article 12 paragraph (3) of Law No.
22 of 2001 concerning Oil and Gas does not have binding legal force.
Second, Article 22 paragraph (1) of Law No.
22 of 2001 concerning Oil and Natural Gas which reads "Business Entities or Permanent Establishments must submit at most 25% (twenty five percent) of their shares from the production of Petroleum and / or Natural Gas to meet domestic needs".
The words "at most 25%" can result in the Business Entity and Permanent Establishment not carrying out their responsibilities in the effort to fulfill domestic Oil and Gas needs.
Because if the words "at most 25%" are stated, Business Entities and Permanent Establishments can only give their share of the Oil and Gas production below the specified percentage, which is 25%.
Or even Business Entities and Permanent Establishments can provide their share of the proceeds of Oil and Gas production in the Indonesian jurisdiction of 0.1% of the percentage specified in Article 22 paragraph (1) of Law No.
22 of 2001 concerning Oil and Natural Gas.
If the provisions of the article are not canceled by the Constitutional Court, Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development Sibarani State Control over Natural Resources Oil and Gas in Indonesia | 231 it will have an impact on the scarcity of fuel in the country, because most of the oil and gas production is owned by business entities and permanent establishments, or even exported abroad by business entities and Permanent Establishment.
But the author does not agree with the opinion of the Constitutional Court of the Republic of Indonesia which argues that the words "at most 25%" are changed to "at least 25%".
The author argues that even though the words "at most 25%" are changed to "at least 25%", still not able to meet domestic fuel needs.
Because business entities and permanent establishments may only provide a percentage of their share of oil and gas production in the Indonesian jurisdiction of 25%.
The author believes that 25% has not been able to meet domestic fuel needs.
This has resulted in the author arguing that Article 22 paragraph (1) of Law No.
22 of 2001 concerning Oil and Natural Gas is contrary to Article 33 paragraph (3) of the 1945 Constitution of the Republic of Indonesia which reads "Earth and water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people".
The results of Oil and Gas production in the Indonesian jurisdiction should be prioritized to the maximum extent possible for the fulfillment of domestic needs and the greatest prosperity of the people.
Third, Article 28 paragraph (2) and (3) Law No.
22 of 2001 concerning Oil and Natural Gas which reads "(2) The price of fuel oil and the price of natural gas is left to a fair and fair business competition mechanism.
(3) The implementation of price policy as referred to in paragraph (2) does not reduce the Government's social responsibility towards certain groups of people ".
The author agrees with the opinion of the Constitutional Court of the Republic of Indonesia which cancels the article, because the fuel price must be set by the Government to adjust the ability or purchasing power of the Indonesian people.
Determination of fuel prices should not be left to the business competition mechanism, which means liberalizing oil and gas business activities in Indonesia.
If the determination of fuel prices is left to the business competition mechanism, it will have an impact on high fuel prices and are difficult to reach by the ability or purchasing power of the Indonesian people.
The author argues that Article 22 paragraph (2) and (3) of Law No.
22 of 2001 concerning Oil and Natural Gas is contrary to Article 33 paragraph (2) of the 1945 Constitution of the Republic of Indonesia which reads "Branches of production which are important to the state and which control the livelihood of many people are controlled by the State".
That the determination of fuel prices must be under the control of the Government as the executor of the State as the ruler of the production branches that control the livelihood of many people.
IV.
CONCLUSIONS AND SUGGESTIONS Based on the previous description, how many conclusions can be drawn are as follows: It is submitted that to fulfill Article 33 of the 1945 Indonesian Constitution, the management of natural resourcesa, especially iol and gas should be controlled by State.
The role of State in this regard is very crucial as envisaged in the 1945 Indonesian Constitution.
This research finds that while the regulation on Oil and Gas business in Indonesia has experienced various changes, it is argued that the substance of the regulation in Law No.
22 of 2001 concerning Oil and Gas is contrary to Article 33 of the 1945 Constitution of the Republic of Indonesia.
Brawijaya Law Journal Vol.5 No 2 (2018) The Role of State in Contemporary Legal Development 232 | Sibarani State Control over Natural Resources Oil and Gas in Indonesia This is reinforced by the Decision of the Constitutional Court of the Republic of Indonesia Number: 002 / PUU-I / 2003, which has canceled Article 12 paragraph (3), 22 paragraph ( 1), and 28 paragraphs (2) and (3) Law No.
22 of 2001 concerning Oil and Gas, because the substance of the legislation was judged to have liberalized business activities of the National Oil and Natural Gas, and decided to have violated Article 33 of the Constitution of Republic of Indonesia Year 1945.
Another case as at the time of the enactment of Law No.
44 Prp of 1960 concerning Oil and Gas Mining and Law No.
8 of 1971 concerning the State Oil and Gas Mining Company in accordance with the mandate of Article 33 of the 1945 Constitution of the Republic of Indonesia.
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Taliwang, M. Hatta, and Salamuddin Daeng, Indonesiaku Tergadai, (Jakarta: Institute Ekonomi Politik Soekarno Hatta, 2011).
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22 of 2001 concerning Oil and Natural Gas
76 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.06 Legal Status of Cryptocurrency in Indonesia and Legal Analysis of the Business Activities in Terms of Cryptocurrency Soonpeel Edgar Changa aAttorney at New York Bar, Korindo Group.
Bachelor of Law (LL.B) from Sungkyunkwan University, Master of Law (LL.M) from New York University and National University of Singapore, and Master of Accounting and Finance (Macc.)
from Sogang University.
Email : soonpeel.chang@gmail.com Submitted : 2018-11-15 | Accepted : 2019-02-08 Abstract: Indonesia’s recent development in legal policy toward cryptocurrency is pertinent to ask whether this new investment market has any more risk to throw over Indonesia than how to protect the existing variable parties by overall structural formation.
This tendency has prevented the government to implement the machinery of more fundamental keynote of policy.
Against this backdrops, this research first analyzes the existing laws and regulations to examine the current legal status of virtual currency in Indonesia with the method of conceptual analysis.
Despite the Government’s skeptical stance about economic soundness that cryptocurrency market leads, however, how to protect the various parties in the existing market is a different issue which still needs an urgent attention from policy makers, legal practitioners, judiciary and academic researchers.
Therefore, this paper further studies the relevant laws and regulations governing the actual operation of cryptocurrency exchange in Indonesia to discuss the more practical aspects by interviewing an Indonesian cryptocurrency exchange and professional lawyers at Dentons HPRP.
Subsequently, the most worrisome legal risks in the industry are diagnosed by interviewing a global cryptocurrency exchanges.
This study concludes that BAPPEBTI Regulation No.
5 of 2019 cannot be the good answer to minimize the risk and will only harm bona fide market participants without a good-standing authority.
Keywords: virtual currency; cryptocurrency; digital currency; bitcoin; fintech.
I.
INTRODUCTION On 8 February 2019, the Indonesian Future Trading Regulatory Agency (“Bappebti”) under the Ministry of Trade issued BAPPEBTI Regulation No.5 of 2019 to directly govern the cryptocurrency ecology whereby Indonesia finally joined the global trends to set the national legal landscape with direct regulations and enforcement ordinances.
It was roughly eleven years after the creator of the first cryptocurrency over the world who used a pseudonym of Satoshi Nakamoto defined it Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 77 as “a chain of digital signatures” in 2008.1 and around two years after the Indonesian central bank (“Bank Indonesia”) named it “virtual currency” and defined it as “digital money issued by a party other than the monetary authority obtained by way of mining, purchase or transfer of reward and includes Bitcoin, Blackoin, Dash Dogecoin, Litecoin, Nxt, Peercoin, Primecoin, Ripple, and Ven.” (Official Elucidation of each of Art.
34 Item.
(a) of BI Reg.
18/69/ PBi/2016 and Article 8 of BI Reg.19/12/PBI/2017).
This definition is not only deviated from the accepted definition in other jurisdictions, 2 but also clearly misleading.
For instance, notwithstanding its definition as digital “money”, it is not legally recognized as a valid payment instrument in Indonesia (Article 8 of BI Reg.19/12/PBI/2017).
Nor is it recognized as a legal currency despite its name of virtual “currency” because Rupiah is the only national currency in Indonesia (BI Reg.
No.7/2011).
In other words, the term “digital money” or “virtual currency” does not help to grasp what it is.
However, the biggest problem laying in virtual currencies’ ecosystem in Indonesia is not the misleading definition, but a lack of clear keynote in national policy regarding how to specifically regulate the 1 “We define an electronic coin as a chain of digital signatures.” See Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, (2008) <www.bitcoin.org> 2.
2 For instance, New York Codes, Rules and Regulations, Title 23 sec.
200.4~200.20; Regulation of the Conduct of Virtual Currency Businesses, 37 N.Y. Reg.
June 24, 2015, Art.
200.2(p); Financial Crimes Enforcement Network, Application of Fin CEN’s Regulations to Persons Administering, Exchanging or Using Virtual Currencies (18 March 2013) FIN-2013-G001; FATF, Virtual Currencies – Key Definitions and Potential AML/ CFT Risks (2014) 6 Financial Action Task Force Report, 4. cryptocurrency market and legally protect the variable parties.
A series of Indonesian policies toward cryptocurrency so far seem to be skeptical whether the cryptocurrencies’ ecosystem can contribute to national financial stability and sound economic growth.
First, the BI Regulation Number 19/12/PBI/2017 prohibiting fintech firms from processing payment transactions that use virtual currency strike hard at the entire virtual currencies’ ecosystem in Indonesia.
Following this ban, Indonesian bitcoin payment platforms including Toko Bitcoin and Bitbayar have closed down voluntarily in October 2017 and other surviving virtual currency exchanges such as ArtaBit, Luno and Indodax was gripped by desperation with the concerns over the government taking a more aggressive move to wipe out the entire virtual currencies’ industry in Indonesia.3 Second, when the market price of Bitcoin reached its peak from December 2017 to January 2018, the Government’s concerns also reached a new high.
Each of Bank Indonesia, the Indonesian Ministry of Finance, and the Indonesian Financial Transaction Reports and Analysis Center (Pusat Pelaporan dan Analisis Transaksi Keuangan or PPATK) issued a press lease to warn the public against the use or investment to virtual currency.
4 At the same time, the 3 See Sri Rahayu and Indriana Pramestri, Fintech 2018 Indonesia (21 May 2018) International Comparative Legal Guides, <https://iclg.com/practice-areas/fintech-laws-andregulations/indonesia> assessed on 10 August 2018.
4 Communication Department of Bank Indonesia, Bank Indonesia Warns All Parties Not to Sell, Buy, or Trade Virtual Currency, 13 January 2018; Indonesian Ministry of Finance, Warning Against the Use of Virtual Currency in Indonesia, 22 January 2018, and ; PPATK, Beware of the Use of Virtual Currency, 12 February 2018.
These reports note in common that (i) virtual currency is not a currency; (ii) the exchange rate of a virtual currency can easily fluctuate and therefore http://www.bitcoin.org/ https://iclg.com/practice-areas/fintech-laws-and-regulations/indonesia https://iclg.com/practice-areas/fintech-laws-and-regulations/indonesia Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 78 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... Financial Supervisory Services Authority (OJK) and Bank Indonesia officially urged the public to refrain from owning, acquiring or trading cryptocurrency following a prelaunch event of cryptocurrency-based investment products by Aladin Capital, a global financial group based in the Unites States and Switzerland.5 As the price of Bitcoin has significantly withered since then, there has been no particular attempt from the Government to adopt any regulation in order to govern activities with virtual currencies as a part of fintech industry until Bappebti announced its sign on a decree to allow cryptocurrency trading on futures exchanges as a commodity.
Soon after, the Ministry of Trade permitted the Crypto Asset Future Trading by adopting the regulation No.99 of 2018.
Albeit the Investment Watch Task Force under OJK supervises and monitors suspicious activities including the field of cryptocurrency, 6 a broad range of legal application among the different parties in the market (e.g., investor, owner, seller, purchaser, developer, exchange business holder, secured creditor, various parties in initial public offering, or any interest holder) has remained significantly ambiguous.
Not surprisingly, during this period of time, the lack of any exploration taken by the judiciary, academic explications, or theoretical developments in the field with its own originality and rigors worsened the situation.
Finally, Bappebti announced the Regulation No.
5 of 2019, which virtually prohibit all the existing cryptocurrency exchanges by requiring astronomical amount vulnerable to bubble risks; (iii) there is no authority in responsible for virtual currencies and there is no official administrator; (iv) there is no underlying asset that serves as a basis for the value; and (v) there is a lack of consumer protection.
to do business.
This regulation raised both theoretical and practical problems.
From a theoretical perspective, this measure seems inherently unlawful per se because cryptocurrency itself is not a future commodity but merely a commodity which can be merely a subject matter of future trading (Article 1 of the Ministry of Trade Regulation No.99/2018).
This theoretical flaw over the authority of the issuing body may render the regulation unconstitutional due to the violation of Article 17 Paragraph (3) and Article 18A (1) of Indonesian Constitution of Constitution.
(A detailed explanation is discussed later.)
Indeed, this approach to govern the business of virtual currency exchange as futures trading business in a whole is far from the global trends in regulating the same market.
In other words, at this juncture in its development, Indonesia does not accommodate the tenets of global policies in the fundamental lever, but merely sticks to making piecemeal regulations while evading rigorous work to successfully bring out a clear regulation from this challenging subject.
Even though the Government’s skeptical stance about soundness of the cryptocurrency markets is fully understandable, how to protect the various parties in the existing market is a different issue which needs an urgent attention from policy makers, legal practitioners, judiciary and academic researchers.
It must be studied at least how the existing statutes can protect the variable parties and regulate multifarious activities.
Particularly, given the increasing number of startup companies that scrambled for the seat 5 See Adinda Normala, ‘OJK Warns of New Cryptocurrency-Based Investment’ (26 January 2018) Jakarta Globe.
6 The official full name is “Satuan Tugas Penanganan Dugaan Tindakan Melawan Hyukum Di Bidang Penghimpunan Dana Masyarakat dan Pengelolaan Investasi.”.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 79 in the new market laying for a chance of successful business and the large size of related criminal cases reported in other countries (e.g.
hacking, embezzlement, etc.
), urgency of the related studies cannot be stressed enough.
Against this backdrop, this research firstly examines what the virtual currency is under the current laws and regulations of Indonesia with the method of conceptual analysis.
This will help clarify the legal status of a virtual currency and its holder, and how to protect the related parties using the existing laws and regulations.
More importantly, this would show how BAPPEBTI Regulation No.5 of 2019 fails in successfully conceptualizing the subject matter.
Subsequently, this paper discusses more practical aspects by analyzing each activity of the business of its exchange.
Even if a direct regulation is newly enacted, some of these activities will be still governed by the same laws and regulations.
Lastly, the potential legal problems are selected by interviewing a practitioners and lawyers and subsequently the disastrous issues in the current BAPPEBTI regulation to resolve these problems are discussed.
II.
LEGAL MATERIALS AND METHOD It is a normative legal research using primary and secondary legal materials.
While the primary legal materials consist of all the legal framework related to cryptocurrency both internationally and domestically, secondary ones included the references, including books, journal articles as well as conference papers and other documents 7 A similar approach is used globally.
See Bae Seung Wook, A study on the Establishment of Virtual Currency Legal System, Foreign Language College of Korea, (PhD theses, 2018), 60-62; and having correlation with the issues.
The technique of analysis data used legal interpretation.
Legal frameworks mentioned above include Indonesian Civil Code, Japanese Civil Code, South Korean Civil Code, New York Code Rules and Regulations and other legal documents related to cryptocurrency produced both by the governemnt and by national banking services.
III.
RESULTS AND DISCUSSIONS The Virtual Currency Under The Current Laws and Regulations of Indonesia : Is Virtual Currency A Personal Property Codified In The Book Two Of The Indonesian Civil Code?
a.
Premise The current legal definition of virtual currency is significantly misleading.
To avoid misunderstanding, the original definition from the very creator as a chain of digital signature must be referred.
7 According to Art.
1 Para.
12 of No.11/2018 Electronic Information and Transactions Act, Electronic Signature means “a signature that contains Electronic Information that is attached to, associated or linked with other Electronic Information that is used for means of verification and authentication.” Therefore, even taking into account the different aspect between “a chain of digital signatures” and an “electronic signature”, it is still difficult to reject the nature as an electronic information composed of digitalized signatures in understanding the fundamental concept of virtual currency.
Lee Weon Sam, ‘Understanding and Legal Status of Virtual Currency – Focusing on Bitoin, The Korea Commercial Cases Association’, (2018) 31(2) Commercial Cases Review, 279-307.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 80 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis...
Under the assumption that virtual currency is electronic information made of digitalized signature, this paper goes over the analysis.
This chapter has been discussed at the earlier research “Legal Status of Virtual Currency in Indonesia in the Absence of Specific Regulations” at Indonesia Law Review of University of Indonesia,8 and yet reviewed again by Indonesian lawyers at Dentons HPRP (Hanafiah Ponggawa & Partners) for the purpose of this paper.
b.
The Nature as an Asset and Personal Property Despite the logical difficulty to recognize electronic information itself as a valuable personal property, it seems extremely difficult from a global perspective to deny the nature of virtual currency as an asset and property under either civil or criminal law based on its economic value widely recognized in the market without prohibition of trading.
The Amsterdam Court views that bitcoin as a personal property by stating “[i]n the court's view, it thus shows characteristics of a property right.”9 As Indonesia still uses the Indonesian Civil Code adopted by the Netherlands in colonial period, the Dutch Court’s decisions on the same provision may 8 Soonpeel Edgar Chang, Legal Status of Virtual Currency in Indonesia in the Absence of Specific Regulations, Indonesia Law Review, (2018) 3: 328-348.
9 “Naar het oordeel van de rechtbankvertoont het hiermeekenmerken van eenvermogensrecht.” Rechtbank Amsterdam, ECLI:NL:RBAMS:2018:869.
C/13/642655.
10 See Wilma Woo, Russia: Court Rules Bitcoin is Property in Landmark Bankruptcy Case (8 May 2018) Bitcoinist.
<http://bitcoinist.com/russiancourt-rules-bitcoin-property/> accessed on 14 August 2018.
11 The indictment letter reads “Bit Coin is digital money or called gold of internet in the form of the same digital commodity wherever and can be used to transacted as an online shopping [.]
Bit coin is give an influence over Indonesia’s modern application of the same stipulation In some of those civil-law jurisdictions having no specific regulations, the court came to the same or similar conclusion.
Absent any particular regulation over Bitcoin, the Supreme Court in South Korea decides in 2018Do3619 that Bitcoin can be specified as an intangible property having a valuable asset and thus can be subject to seizure of hidden assets under the criminal procedures.
Furthermore, Russia criminalizing Bitcoin as money substitute as Indonesia does recently classified cryptocurrency as property after a bankruptcy court forced a debtor to include his holdings in his personal wealth.10 Indonesian legal practice is not very different from this global trend.
In a recent Indonesian criminal case (103/PID/2016/PT.DKI), the public prosecutor appears to recognize Bitcoin as a personal property in its indictment which the Court accepted.
In the indictment, the public prosecutor regards Bitcoin as a separate form of commodity independent from an internet server that can be commercially transacted.11 Furthermore, the Ministry of Trade further explicitly announced that crypto currency is a crypto asset and commodities in the Regulation No.99/2018.
Bappebti also declared that crypto currency is a commodity decentralized network that does not have server.
[And Bit coin] is automatically connected between bitcoin software of whatsoever application which is used by user, which is not in the form of conventional currency in general, which has been determined by central banks in all countries.
(Bit Coin adalah uang digital atau disebut emas internet berupa komoditas digital yang sama di mana pun dan dapat digunakan untuk bertransaksi belanja online, bit coin adalah jaringan terdesentralisasi yang tidak memiliki server dan saling terhubung secara otomatis antar software bitcoin apapun aplikasinya yang digunakan oleh pengguna, yang tidak secaranya tadalam bentuk mata uang konvensional pada umumnya, yang sudah ditentukan Bank Central di seluruh Negara)” Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 81 in a digital asset field through Article 1 Paragraph f Item 1 of the Regulation No.3/2019.
Despite the controversial issue whether cryptocurrency satisfies the nature of “commodities” or “asset”, the regulation made this point clear by explicitly determining it as an asset and commodity on its face.
Thus, albeit virtual currency is physically and scientifically a chain of digital signatures, the legal nature of virtual currency as an asset and personal property seems to be undeniable.
It must be noted that this nature is recognized not because of its practical utility or the characteristics of electronic digital signatures but because of its economic nature -the demand and supply in the marketand the absence of contrary laws and regulations.
The issue is then how the existing Indonesian laws and regulations are applied to this new type of asset.
c. Absence of Numerus Quasi-Clausus Theory in Indonesia 12 Francesco Parisi, ‘The Fall and Rise of Functional Property’ (2005) November George Mason Law & Economics Research Paper No.
05-38, 18.
13 For examples of current numerus clausus in civil law jurisdictions, Article 175 of Japan Civil Code (Establishment of Real Rights) “No real rights can be established other than those prescribed by laws including this Code.”; Article 185 of South Korean Civil Code (Kinds of Real Rights) “No real right can be created at will other than ones provided for by law or customary law.”; In German law the numerus clausus principle has a constitutional foundation and limits property rights in their number (Typenzwang) and content (Typenfixierung).
Alexander Peukert, Goods allocation as a legal principle XXII, (Jus Privatum, 2008), p.138.
This is not different in common law jurisdictions nowadays.
“[t]he numerus clausus doctrine is characteristic of the post-feudal civil law systems.
However, the feudal system still is the basis for property law in England and countries with property law systems which are historically based on English law such as the United States.
It will, for that reason, come as no surprise that the numerus clausus doctrine, even the concept of numerus clausus as such, was hardly ever “Numerus clausus” is a legal principle of property law which limits the number of types of rights that the courts will acknowledge as having the character of “property” and has its roots in Roman law.12 Nowadays, many countries either civil-law or common-law jurisdiction apply this principle.13 Because Indonesian Civil Code codified by the Dutch on 5 July 1830 and enacted in 1948 has its roots in Code Civil des Francais or Code Napoleon, which adopts the principle of numerus clausus in Article 544, 14 the same principle should apply in Indonesia as both the Netherlands and France do.
The main reference in Indonesian Civil Code in this line is Art.
499 stating “[t]he law interprets as assets all goods and rights which can be the subject of property.” To regulate new forms of rights in property that are not codified under civil codes, numerus quasi-clausus has been systematically accepted in a few civil-law discussed in English and American legal literature.
This seems to be changing.
In 1993 Gordley pointed out that, at least from an American perspective, the conceptual differences between civil and common property law are no longer fundamental.
In a very interesting, recent, exchange of views, Hansmann and Kraakman have debated with Merrill and Smith whether the numerus clausus doctrine also exists, albeit perhaps implicitly, in American property law.
They all seem to agree that in American common law standardisation has taken place, which in its final result comes close to the civil law numerus clausus.” Sjef van Erp, ‘A Numerus Quasi-Clausus of Property Rights As A Constitutive Element of A Future European Property Law?’ (2003) 7(2 June) Netherlands Comparative Law Association, Nedelandse Vereniging Voor Rechtsvergelijking.
14 See Dr. Irawan Soerdojo, S.H., M.Si, ‘The Development of Indonesian Civil Law’ (2016) 4(IX) Scientific Research Journal, 30; and Dhaniswara K. Harjono, ‘Pengaruh Sistem Hukum Common Law Terhadap Hukum Investasi Dan Pembiayaan Di Indonesia’, (2009) 6 (3) Lex Jurnalica , 180.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 82 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... states, 15 and further asserted for more variable rights in a number of these jurisdictions including the Netherlands.16 In these countries, in an attempt to construe variable rights out of virtual currency which have never existed in history, some argue that digital information or a chain of digital information itself cannot constitute assets under the meaning of civil code because it is easily duplicated, copied, distributed and transmitted and thus cannot be deemed as independently existing, identifiable and controllable, all of them are elements of goods.
Some of them further allege that although virtual currency cannot constitute a traditional asset under the civil code, the rights involved in virtual currency must be protected by widely applying the numerus clausus mutatis mutandis.17 Should the same logic be applicable in Indonesia, the Book Two of the Indonesian Civil Code would be applicable mutatis mutandis to the rights arising out of virtual currency.
Unlike these countries, nonetheless, Indonesia appears to have barely developed the principle of numerus quasi-clausus.
This is not surprising given the current level of legal researches and education in Indonesia lacking any referable collection of academic explications and theoretical development in Civil Code that must be full of rigor and originality from numerous passionate scholars.
d. Direct Application of Numerus Clausus Against these backdrops, it seems much persuasive in Indonesia that the Book 15 For instance, in South Korea and Japan, Numerus Quasi-Clausus (Jun-mul-kwon in Korean and zyunbukken in Japanese) includes fishery right and mining right, both of them are not codified under numerus clausus in civil codes.
16 “I would argue that the strict civil law numerus clausus doctrine should not be applied as strictly as it is done in, e.g., the Netherlands.
It should Two of the Indonesian Civil Code directly covers virtual currency as intangible property.
The referable articles in the Indonesian Civil Code are as follows: Art.
500 “[a]nything that, due to a property right, comprises part of a property, including products, either produced naturally or through labor, to the extent that these are attached to the branch or roots, or attached to the soil, shall be deemed to comprise part of the assets.” Art.
503 “every property is tangible or intangible.” Art.
504 “every property is movable or immovable […].” While the form of intangible property is not specifically identified, the Indonesian Civil Code implicates that an intangible property is what could give the right to enjoy property or have economic value.
Also, in the absence of direct laws and regulations, there is no prevailing reason to limit the direct application of the Book Two to only corporeal or material assets.
Art.
613 requires a record to show the ownership and/or transfer of the intangible property.
Considering that virtual currency can be traded with the electronically recorded ownership, account and open records through the block chain technology, it satisfies Art.
613 as well.
e. Consequences of Directly Applying The Book Two Of The Indonesian Civil Code 1) Measure of Damages develop towards a numerus quasi-clausus: some flexibility is needed to regulate new forms of rights in property, such as the trust and time-share arrangements.
If the legislature does not act, courts should, but with extreme care.” See Sjef van Erp Ibid; In Japan.
17 See Bae Seung Wook, (2018) above n. 7, 42.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 83 If virtual currency is lost or broken, or not properly transacted (i.e., fraud, cybercrime, erroneous transaction, negligent management, etc.
), measure of damages brings out great legal uncertainty and the victim must rely only on terms and conditions.
Because a virtual currency is not securities as explained later, the victim of fraud, cybercrime, erroneous transaction or negligent management cannot be protected under securities regulations to recover the arbitrage.
In order to claim the largest damages, the claimant must be able to bring out the rules, relevant theories and cases applicable under the Book Two of Civil Code that the value of his personal property must be measured by (i) the market value at the time of lose; (ii) the historical value; or (iii) the higher of either (i) or (ii).
For this purpose, the plaintiff could argue both breach of contract and tort.
On the contrary, the business holder of virtual currency exchange must be able to bring out defenses applicable under the Book Two of Civil Code because he is widely exposed to claims regarding a recovery of damages due to erroneous transactions or late measurements.
In some cases, the court may award damages which go beyond a strict measure of compensation.
Example of noncompensatory damages include nominal damages, aggravated damages, restitutionary damages and account of profits.
In Indonesia, this is left to the Judge to a great extent by the principle ex aquoet bono.
If the value of subject matter becomes an issue in Indonesian litigation, it generally needs public appraise or relevant authorities to measure the value.
Nonetheless, at this point, one cannot determine the most appropriate institution for valuation of virtual currency.
2) The Statute of Limitation regarding Personal Property Claim Art.
1967 of Indonesian Civil Code states “[a]ll legal claims, either property as well as individual in nature, expires after thirty years and the individual who invokes the expiration is not be required to submit any title, and an individual cannot object to this expiration if such is based upon bad faith.” 3) Object of Collaterals or Impersonal Security Although a personal property may be used as an object of collaterals or impersonal security by writing a contract between parties, using virtual currency as a collaterals or security brings great legal complexity regarding the precise secured value in virtual currency, tender of possession, foreclosure and execution procedures.
That is thought to be beyond the purpose of exchange business.
Because operators of virtual currency exchange regard the legal uncertainty as harmful to the business, some foreign exchange business holder use terms and conditions to forbid collateralizing the virtual currency traded in its exchange or exempt itself from any consequence of such collateral or security.
In contrary, the terms and conditions which Indodax, the biggest player in Indonesian cryptocurrency market, use at this point does not stipulate in regard to the collaterals or security.
4) Death of Virtual Currency Holder A personal property is subject to inheritance, which is notoriously complex in Indonesia.
This complexity is partially because of Indonesia Civil Code which has never been amended since its codification in the beginning of 19th century and additionally because of mixed practice with Islam law conflicting with the relevant Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 84 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... provisions in Civil Code.
The details of this complexity are beyond the purpose of this paper and thus are not discussed.
5) The Nature of Virtual Currency Exchange As explained later, Indonesian legal experts and financial supervisory service’s opinions are gradually converging to the view that virtual currency is a part of fintech.
If a virtual currency is indeed recognized as a property within fintech sector, virtual currency exchange could constitute an exchange of personal financial properties in the vacuum of a separate regulation.
In Indonesia, there is no umbrella regulation to govern an exchange business of financial products yet.
Is Virtual Currency A Contractual Right Under the Book Three Of The Indonesian Civil Code?
Digital information itself does not constitute a contract and virtual currency is merely an object of mining, purchase and transfer (Official Elucidation of Art.
34 Item (a) of BI Reg.
18/69/PBi/2016).
However, it can be subject to a contract in as much as not used as a payment measure or for criminal activities.
Although not stated among the examples in BI Reg.
18/69/PBI/2016 and BI Reg.19/12/PBI/2017, Ethereum is widely exchanged as one of the virtual currencies at Indonesian virtual currency exchange, Indodax.
It is also globally known as having a nature of so-called “smart contract”.
The smart contract in this context means an encoding function or a computerized protocol that executes designated terms.
Nonetheless, the smart contract is not a 18 See Sri Rahayu above n 3; and Dita Safitri, Bappebti Segera Rilis Aturan Aset Digital (29 April 2018) Dunia Fintech “contract” under the meaning of law.
A contract arises from an agreement, or by law (Art.
1233 of Civil Code) not by encoding function or a computerized protocol.
Is Virtual Currency An Copyrighted Property?
The creators of virtual currency have opened it to the global public for free without registration of intellectual rights.
Some of them have not even revealed their identity at all.
Therefore, it is difficult for Indonesian regime to see it as copyrighted work as far as the creators do not register them as an industrial properties.
Is Virtual Currency A Financial Property?
a.
Is Virtual Currency A Property in Fintech Industry?
Financial Technology or Fintech is “the utilization of technology in financial systems which delivers products, services, technology, and/or a new business model and also has an impact on monetary stability, financial system stability, and/or the efficiency, continuity, security, and reliability of the payment system.” (Art.1 Para.1 of BI Reg.
No.19/12/PBI/2017) Therefore, once a certain product or business is recognized under fintech industry, it is automatically viewed as a part of financial product or business.
For now, in the absence of any explicit stipulation whether virtual currency exchange is categorized under a financial business or not, Indonesian lawyers, news media and government officials nevertheless officially state that virtual currency business is one of Fintech area.18 Certainly, the definition of fintech implicates the possibility to include virtual <https://www.duniafintech.com/bappebti-rilisaturan-aset-digital/> accessed on 14 August 2018. https://www.duniafintech.com/bappebti-rilis-aturan-aset-digital/ https://www.duniafintech.com/bappebti-rilis-aturan-aset-digital/ Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 85 currency exchange.
Furthermore, Indonesia’s official categories of fintech includes “other financial services” that can meet any of the followings “(i) innovation; (ii) ability to have an impact on products, services, technology, and/or on the existing financial business model; (iii) ability to provide benefits for society; (iv) ability to be widely used; and (v) other criteria mandated by Bank of Indonesia.” (BI Reg.
No.19/12/PBI/2017 concerning Implementation of Fintech) That is, there is no bright-line rule to exclude virtual currency from fintech area.
Naturally, as discussed earlier, virtual currency is likely to be construed as intangible assets under the Book Two of the Indonesian Civil Code and likely to constitute a financial product given the government’s current stance.
As a consequence, the exchange business is subject to the regulatory compliance issued and supervised by OJK and Bank Indonesia including financial consumer protection, privacy and data protection, anti-money laundering and counter-terrorist financing, know your customer rule, prudential banking, etc.
Indeed, OJK made an Investment Watch Task Force to this end which specifically supervises and monitors any investment which has suspicious activities including the cryptocurrency trading sector.19 The more conclusive legal consequences depend on what type of 19 OJK, Press Release: Investment Alert Task Force Suspends 14 Business Activities to Protect Public (23 Oct 2017) <https://www.ojk.go.id/en/beritadan-kegiatan/siaran-pers/Pages/Press-ReleaseInvestment-Alert-Task-Force-Suspends-14Business-Activities-to-Protect-Public.aspx> assessed on 7 August 2018.
20 Securities means promissory notes, commercial paper, shares, bonds, evidence of indebtedness, Participation Units of collective investment contracts, futures contracts related to Securities, and all derivatives of Securities Art.1 Para.5 of the Act No.8/1995.
financial product it is.
The detailed are discussed below.
b.
Is Virtual Currency Securities?
Virtual currency does not constitute a securities under Art.1 Para.5 of No.8/1995 Capital Markets Act and its official elucidation.20 Either virtual currency is a securities or not, some foreign jurisdictions such as United States, United Kingdom and Switzerland apply securities regulations to initial coin offering.21 Initial coin offering or ICO (also purported as token sale, initial token offering, ITO, or crowd sale) offers existing virtual currency, newly developing virtual currency, or token of certain rights involved in the project in order to solicit funds from the general public.
The details about ICO are discussed at later part of this paper.
Some jurisdictions such as South Korea and China explicitly prohibits ICO as of now.
The Indonesian regulatory regime does not explicitly prohibits ICO as they do.
The widely-accepted legal opinion in Indonesian market so far seems to be that Indonesia makes it virtually impossible to carry out ICO by banning the use of virtual currencies as payment instruments.
(Article 8 of BI Reg.19/12/PBI/2017).22 Therefore, those regulations concerning securities or capital market do not 21 United States (SEC, “Release No.81207; Report of Investigation Pursuant to Section 21(a) of the Securities Exchange Act of 1934: The DAO”, July 25, 2017); Switzerland (FINMA, “Regulatory treatment of initial coin offerings”, FINMA Guidance 04/2017, 2017.9.29), and United Kingdom (FCA, “Initial Coin Offerings”, Statements, 2017.9.12.
22 “Similar to a virtual currency, the ICO is not yet specifically regulated under the prevailing laws and regulations in Indonesia.
At this stage, a definition of or coverage of an ICO is also not available under this existing regulations…… Taking a conservative approach, it would not https://www.ojk.go.id/en/berita-dan-kegiatan/siaran-pers/Pages/Press-Release-Investment-Alert-Task-Force-Suspends-14-Business-Activities-to-Protect-Public.aspx https://www.ojk.go.id/en/berita-dan-kegiatan/siaran-pers/Pages/Press-Release-Investment-Alert-Task-Force-Suspends-14-Business-Activities-to-Protect-Public.aspx https://www.ojk.go.id/en/berita-dan-kegiatan/siaran-pers/Pages/Press-Release-Investment-Alert-Task-Force-Suspends-14-Business-Activities-to-Protect-Public.aspx https://www.ojk.go.id/en/berita-dan-kegiatan/siaran-pers/Pages/Press-Release-Investment-Alert-Task-Force-Suspends-14-Business-Activities-to-Protect-Public.aspx Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 86 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... govern virtual currency or its exchange business.
c. Is Virtual Currency A Future Commodity?
In earlier days, it was not legally impossible to view some types of cryptocurrency as a “Future Commodity” under Indonesian Future Commodity Act,23 because trading certain types of cryptocurrency (e.g., Bitcoin) practically required an unguaranteed time gap an order and encashment.
Nevertheless, this is no longer the case nowadays.
The recent types of virtual currencies such as Ripple allow prompted and real-time sales.
In other words, defining all the virtual currencies as commodities in future market is legally incorrect.
Furthermore, trading cryptocurrency in one exchange does not necessitate a time interval as a future market does.
This triggers a constitutional problem in the recent enactment of BAPPEBTI Regulation.
This problem is discussed in a separate chapter.
d. Is Virtual Currency a Currency?
As discussed earlier, virtual currency cannot be used a currency in Indonesia.
Notwithstanding its definition as digital “money”, it is not legally recognized as a appear that an ICO can be deemed a public offering under Indonesian law.” Fahrul S Yusuf and Harry Kuswara, ‘Weighing the future’, (16 July 2018) International Financial Law Review.
23 “A Commodity means any goods, service, right or other interest… subject of a Future Contract […]” and “Future Contract means a form of standard contract for a sale or purchase of a Commodity with a future settlement stipulated in the contract, which is tradable on the Futures Market.” Art.1 Para.
2 and 5 of Law No.19/2011 (amendment of Law No.32/1997 concerning Future Commodity).
24 BI Reg.
No.
18/40/PBI/2016 concerning the Implementation of Payment Transaction Processing.
valid payment instrument in Indonesia (Article 8 of BI Reg.19/12/PBI/2017).
Nor is it recognized as a legal currency despite its name of virtual “currency” because Rupiah is the only national currency in Indonesia (BI Reg.
No.7/2011).
e. Is Virtual Currency Electronic Money?
Electronic money or E-money is used for payment system and governed by a separate regulation.24 The business holder of E-money is required to have a Payment System License as electronic money operators issued by Bank Indonesia.
25 In contrary, virtual currency cannot be used for payment system.
f. Is Virtual Currency A New Type Of Financial Property?
As seen in the above discussion, virtual currency does not suitably belong to any existing financial product while the Indonesian government officials mention it as a financial technology and the Indonesia criminal court recognizes it as a property.
Thus, it must constitute a new financial property that can be commercially used or transacted as far as it is not used as payment method and the way of use does not violate laws and regulations.
The OJK expressed the same opinion.26 25 There are 29 license holders as of July 27th 2018.
See Bank Indonesia, List of Electronic Money Operators Licensed by Bank Indonesia Bank and Non Bank Institutions, (27 July 2018) <https://www.bi.go.id/en/sistempembayaran/informasi-perizinan/uangelektronik/penyelenggaraberizin/Pages/default.aspx> accessed on 14 August 2018.
26 “Sampai sekarang belum ada yang cocok ‘dudukannya’.
Ini asset baru dunia digital.
Disebut komoditas mereka ngga cocok, Bitcoin ini aset digital yang ada di server.
Apakah ini uang?
Tidak.
Ketiga, apakahproduk yang ada di area investasi?
Kami tanyake expert, underlying tidakada.
Jadi, susah memasuk anke dalam tiga https://www.bi.go.id/en/sistem-pembayaran/informasi-perizinan/uang-elektronik/penyelenggara-berizin/Pages/default.aspx https://www.bi.go.id/en/sistem-pembayaran/informasi-perizinan/uang-elektronik/penyelenggara-berizin/Pages/default.aspx https://www.bi.go.id/en/sistem-pembayaran/informasi-perizinan/uang-elektronik/penyelenggara-berizin/Pages/default.aspx https://www.bi.go.id/en/sistem-pembayaran/informasi-perizinan/uang-elektronik/penyelenggara-berizin/Pages/default.aspx Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 87 Flaws in Recent Regulation of Indonesia a. Cryptocurrency Regulations od Other Countries Before discussing the problems in the recent Indonesian regulation over the virtual currency, the global trend in making laws and regulations over the same subject matter must be examined to maintain a balanced view.
In 2018, the Library Congress, the largest library in the worlds and the main research arm of the U.S. Congress and the home of the U.S.
Copyright Office, reported its survey of the legal and policy landscape surrounding cryptocurrencies around the world covering 130 countries and some regional organizations that have issued laws or policies on the subject.27 According to this research, one of the most common actions identified across the surveyed jurisdictions is government-issued notices about the pitfalls of investing in the cryptocurrency markets.
Such warnings, mostly issued by central banks, are largely designed to educate the citizenry about the difference between actual currencies, which are issued and guaranteed by the state, and cryptocurrencies, which are not.
Most government warnings note the added risk resulting from the high volatility associated with cryptocurrencies and the fact that many of the organizations that facilitate such transactions are unregulated.
Most also note that citizens who invest in cryptocurrencies do so at their own personal risk and that no legal recourse is available to them in the event of loss.
Many of the warnings issued by various countries also note the opportunities jenis tadi,” Said Fithri Hadi Direktur Inovasi Keuangan Digital OJK.
See Nanda Narendra Putra, Risiko Jual-Beli Bitcoin Tidak Dijamin Otoritas Manapun, (13 Jan 2018) Hukum Online.
27 The Law Library of Congress, Global Legal Research Center, Regulation of Cryptocurrency that cryptocurrencies create for illegal activities, such as money laundering and terrorism.
Some of the countries surveyed go beyond simply warning the public and have expanded their laws on money laundering, counterterrorism, and organized crimes to include cryptocurrency markets, and require banks and other financial institutions that facilitate such markets to conduct all the due diligence requirements imposed under such laws.
For instance, Australia, Canada, and the Isle of Man recently enacted laws to bring cryptocurrency transactions and institutions that facilitate them under the ambit of money laundering and counter-terrorist financing laws.
Bank Indonesia statement on January 13, 2018, Bank Indonesia Regulation No.18/40/PBI/2016 on Implementation of Payment Transaction Processing and Bank Indonesia Regulation No.
19/12/PBI/2017 on Implementation of Financial Technology are also covered in this line.28 Some jurisdictions have gone even further and imposed restrictions on investments in cryptocurrencies, the extent of which varies from one jurisdiction to another.
Some (Algeria, Bolivia, Morocco, Nepal, Pakistan, and Vietnam) ban any and all activities involving cryptocurrencies.
Qatar and Bahrain have a slightly different approach in that they bar their citizens from engaging in any kind of activities involving cryptocurrencies locally, but allow citizens to do so outside their borders.
There are also countries that, while not banning their citizens from investing in cryptocurrencies, impose indirect restrictions by barring financial institutions within their borders Around the World, June 2018.
< https://www.loc.gov/law/help/cryptocurrency/wor ld-survey.php> 28 Ibid, 109-110.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 88 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... from facilitating transactions involving cryptocurrencies (Bangladesh, Iran, Thailand, Lithuania, Lesotho, China, and Colombia).
Not all countries see the advent of blockchain technology and cryptocurrencies as a threat, albeit for different reasons.
Some of the jurisdiction, while not recognizing cryptocurrencies as legal tender, see a potential in the technology behind it and are developing a cryptocurrency-friendly regulatory regime as a means to attract investment in technology companies that excel in this sector.
In this class are countries like Spain, Belarus, the Cayman Islands, and Luxemburg.
Some jurisdictions are seeking to go even further and develop their own system of cryptocurrencies.
This category includes a diverse list of countries, such as the Marshall Islands, Venezuela, the Eastern Caribbean Central Bank (ECCB) member states, and Lithuania.
In addition, some countries that have issued warnings to the public about the pitfalls of investments in cryptocurrencies have also determined that the size of the cryptocurrency market is too small to be cause for sufficient concern to warrant regulation and/or a ban at this juncture (Belgium, South Africa, and the United Kingdom).
One of the many questions that arise from allowing investments in and the use of cryptocurrencies is the issue of taxation.
In this regard the challenge appears to be how to categorize cryptocurrencies and the specific activities involving them for purposes of taxation.
This matters primarily because whether gains made from mining or selling cryptocurrencies are categorized as income or capital gains invariably determines the applicable tax bracket.
29 Peraturan Menteri Perdagangan No.99/2018 tentang Kebijakan Umum Penyelenggaraan Perdagangan Berjangka Aset Kripto Despite the global tendency of skepticism, no jurisdiction surveyed in this report defines the cryptocurrency service or business as future trading industry.
b.
Ministry of Trade Regulation No.
99 of 2018 After Bappebti announced its plan to adopt a new regulation to govern cryptocurrency transactions in 2018, the Ministry of Trade introduced the regulation No.99/2018 on 20 September 2018 to permit a trade of Crypto Asset.
29 This short regulation has only the three articles: (1) Crypto Asset is designated as a commodity which can be a subject of future contract traded at the Future Exchange (emphasis added); (2) Any further regulation, guidance, supervision and development regarding the establishment of Crypto Assets as a commodity that can be the subject of Future Contract traded at the Future Exchange shall be determined by the Head of the Trade Supervisory Board of the Future Commodity; and (3) This Ministry Regulation is valid from the signing date.
As discussed earlier, cryptocurrency does not constitute a future commodity, either legal or physical nature.
The recent types of virtual currencies such as Ripple allow prompted and real-time sales.
Besides, trading cryptocurrency in one exchange does not necessitate a time interval as a future market does.
In other words, either crypto asset, cryptocurrency, digital currency or whatever name we coin, defining all the related business as a future business would be significantly misleading.
Thus, the regulation No.99/2018 must be thought to regulate only where virtual currency is traded as future products, rather Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 89 than to view the exchange of virtual currency itself as a future trading.
In other words, the regulation No.99/2018 would be legitimate and lawful only where this interpretation is applied.
c. Bappebti Regulation No.5 of 2019 1) Theoretical Problem: Incorrect Authority Bappebti recently issued the Regulation of Supervisor Agency of Future Commodity Trading No.
5 of 2019 concerning Technical Provision for Performing the Physical Market of Crypto Asset in Futures Exchanges.
BAPPEBTI Regulation No.5 of 2019 is different with Ministry of Trade Regulation No.99 of 2018 in that it clearly aims to govern the whole business service and entities of cryptocurrency by specifying crypto asset service (Article 1 Paragraph 9) and clearing (Article 1 Paragraph 5).
Nonetheless, virtual currency exchange is not a future trade in its nature as discussed earlier.
Figuratively speaking, rice or pineapple may be traded through a forward agreement but purchasing rice or pineapple at convenient store is not a forward trade.
Similarly, virtually currency can be traded through a future agreement but purchasing a virtual asset is not a future agreement.
Indeed, Article 1 of the Ministry of Trade Regulation No.99/2018 does not define Crypto Asset as a future commodity but “a commodity can be a subject of future contract (Komodity yang dapat dijadikan Subjek Kontrak Berjangka yang diperdagangkan di Bursa Berjangka).” According to Art 1.
Para.
4 of Commodity Futures Trading Act No.32/1997 amended by Act No.10/2011) defines the futures contract as “a standardized contract form to purchase or sell Commodities in quantity, quality, time, place and type of submission at a later date that has been set, and includes in the notion of the contract.” Trading cryptocurrency in one exchange does not necessitate a time interval as a future market does.
Further, a number of cryptocurrencies do not necessitate time interval for trade at all.
Naturally, there is a constitutional question on the BAPPEBTI Regulation No.5 of 2019 which has been issued under the assumption that Bappebti has the due authority to govern the business of cryptocurrency exchange.
That is, due authority of relevant field is a constitutional question based on Article 17 Paragraph (3) and Article 18A (1) of Indonesian Constitution.
An irrelevant legislation without due authority can nullify the entire regulation.
And that would be disastrous to the market participants as it already is to the Indonesia’s legal system and legal certainty.
2) Practical Problem: a Lack of Protection for Bona Fide Participants According to BAPPEBTI Regulation No.5 of 2019, futures exchanges and clearing houses dealing with crypto assets must have paid-up capital of at least 1.5 trillion Indonesian rupiah (USD 106 million) and must maintain a closing capital balance of at least 1.2 trillion Indonesian rupiah (USD 85 million).
Further, traders of crypto assets must maintain minimum paid-up capital of 1 trillion Indonesian rupiahs (USD 71 million) and a minimum closing balance of 800 billion Indonesian rupiah (USD 57 million).
This unrealistic figures out of nowhere drew harsh criticism from the market and critics since even the largest exchange of the Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 90 | Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... country cannot follow the regulation.
3031 To the market participant’s view, BAPPEBTI Regulation No.5 of 2019 seems simply way out of bounds.32.
Following the announcement of the regulation, Bappebti invited some cryptocurrency exchange business holders within Indonesian Blockchain Association to the meeting on 19 February 2019 and suggested two options for votes: 33 (i) working capital to be fixed to 80% of paid-up capital; or (ii) working capital to comply with a debt to equity ratio of 1:2.
Because this suggestion is too rough to address the issues potentially making other loopholes, the discussion is still ongoing amongst the market participants and Bappebti.
Unfortunately, BAPPEBTI Regulation No.5 of 2019 does not have any enabling clause to protect market participants.
In other words, the Indonesia’s regulation merely restrict the business of cryptocurrency exchange and services without protection of regular users who already put their money into the market.
A legal authority must understand that any sudden prohibition of financial market can lead to frightening consequences to bona fide participants in the market, particularly where they could not see it coming.
As mentioned in the earlier study, 34 regular crypto-asset service users are exposed to certain risks including malware, hacking, malfunction, congestion, 30 Krystle M, New Crypto Futures Rules by Indonesia’s BAPPEBTI Poorly Received by Traders (Bitcoin Exchange Guide, February 14, 2019) 31 Indrasari Wisnu Wardhan, Head of BAPPEBTI, is already aware of this problem according to the speech in the meeting with Indonesian Blockchain Association.
32 Krystle M, above n 30.
33 Attendees: BAPPEBTI, Indonesian Blockchain Association, Indodax, Luno, Coinone, Triv, embezzlement, etc.
Some of these problems are caused by the user’s own negligence (e.g., leaving public computers without logging out, leaking his/her pin codes, etc.)
or willful conducts (e.g., joint offender of hacking).
Not to mention, in some cases, the cryptocurrency exchange cannot have a control over each of individual customers’ node and each customer has the better position to protect him/herself from session hijacking35 or spoofing.36 However, that does not mean that the governmental policy and regulations can simply leave these risks or burdens to the general public.
They must be protected.
IV.
CONCLUSIONS AND SUGGESTIONS There is no such thing as a legal vacuum or a regulation-free zone, as some defenders of virtual currency might want to think.
Certainly, Indonesia’s recent development in legal policy toward cryptocurrency is pertinent to ask whether this new investment market has any more risk to throw over Indonesia than how to protect the existing variable parties by overall structural formation.
This study contend that any effective implementation of this new ecosystem requires the machinery of more fundamental concepts and keynote of policy acceptable to Indonesia for the protection of related parties.
Nonetheless, most importantly, BAPPEBTI Regulation No.
5 of Bitocto, Bido, Udax, Pintu, Digital Exchange, KoinX, Rekeningku, Tokocrypto and Nuchex.
34 Soonpeel Edgar Chang, above n. 8, 343.
35 In computer science, session hijacking, also known as cookie hijacking, means the exploitation of a valid computer session to gain unauthorized access to information such as ID and password.
36 In the context of network security, a spoofing attack is a situation in which a person or program successfully masquerades as another by falsifying data, to gain personal information such as ID or Email address.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Chang Legal Status of Cryptocurrency in Indonesia and Legal Analysis... | 91 2019 cannot be the good answer to this challenge and will only harm bona fide market participants without a good-standing authority.
Of course, there are a number of challenges when it comes to enacting a direct regulation.
It is first necessary to characterize virtual currency in order to apply a set of predetermined rules; that is already challenging enough given the diverging voices and visions toward the future of cryptocurrency over the world.
Even if the legal concept and regulatory frame is structured, the execution and enforcement would be challenging: once the relevant rules are determined, the conflict of laws and jurisdictions question kicks in.
37 These challenges must be promptly overcome under the clear direction of national policy.
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Harjono, Dhaniswara K., ‘Pengaruh Sistem Hukum Common Law Terhadap Hukum Investasi Dan Pembiayaan Di Indonesia’ (2009) 6(3, Agustus) Lex Jurnalica, 180.
37 See Iris Barsan, above n. 35, 54-65.
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54 | DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.05 In Search of Remotely Piloted Aircraft Regulations State Practices and International Law Perspective What Indonesia can Learn?
Atip Latipulhayat Uweh1, Neni Ruhaeni2 1Faculty of Law – Padjadjaran University E-mail : atip.latipulhayat@unpad.ac.id 2Bandung Islamic University E-mail: nenihayat@gmail.com Submitted : 2017-10-18 | Accepted : 2018-04-11 Abstract: Remotely Piloted Aircraft (RPA) has been used for different purposes, from hobby to military purposes.
The rapid development of RPA’s technology has made RPA regulations in most countries become more quickly obsolete.
It is exacerbated by the fact that there is no agreed internationally RPA regulation so far, except an amendment of Annex 2 of the Chicago Convention 1944, which broadens the notion of aircraft to include RPA.
This article identifies legal issues and models of RPA regulation in several countries and what Indonesia can learn and to look for an adequate and appropriate model to make the Indonesian RPA regulation, legally acceptable and technologically adaptable.
This paper argues that the Chicago Convention, the model of RPA regulations in several countries, and the special interests of Indonesia as an archipelagic state are the three important elements that should be taken into account in the establishment of an appropriate and adequate Indonesian RPA regulation.
This paper used normative method whcih analysing existing legal framework in RPA Keywords: RPA, regulations, Chicago Convention, Indonesia, aircraft.
I.
INTRODUCTION Drone or Remotely Piloted Aircraft (hereafter referred to RPA) represents a new development in aviation technology used for a variety of purposes, from hobby to military purposes.
Unlike aircrafts used for civil aviation purposes, which is governed by comprehensive rules, RPA operations is still based on a number of ad hoc rules in both international as well as domestic levels.
It is exacerbated by the fact that there is no agreed internationally RPA regulation so far, except an amendment of Annex 2 of the Chicago Convention 1944 (hereafter referred to as the Convention), which broadens the notion of aircraft to include RPA.
One of the important consequences of that is the creation of decentralized RPA regulation models, which give more space for states to establish their national RPA regulations.
mailto:atip.latipulhayat@unpad.ac.id mailto:nenihayat@gmail.com Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 55 The rapid development of RPA’s technology and its multi-purpose uses has made RPA regulations in most countries become more quickly obsolete.
In addition, RPA operations produce not only legal, but also social, and ethical implications.
Social implications generally involve opportunities and threats of using RPA for society.
While ethical issues pertain to the use of certain types of RPA that potentially violate moral values or the use of RPA that requires application of certain moral values as well.
The legal issues are mostly related to the urgent need to make legal frameworks about what actions (operations) are allowed and what should be allowed.1 This article identifies legal issues and models of RPA regulation in several countries and what Indonesia can learn and to look for an adequate and appropriate model to make the existing Indonesian RPA regulation, legally acceptable and technologically adaptable.
The article begins with the explanation of the term RPA and its status and legal position under the Convention.
The next discussion is to identify the model of RPA regulations in several countries including the existing Indonesian RPA regulations.
Finally, this article will propose an appropriate RPA regulation model for Indonesia.
II.
LEGAL MATERIALS AND METHODS While the primary legal materials consist of all the international agreement related to the development of technology both directly and indirectly, secondary ones included the references, including books, 1 Burt Custer, “Drones Here, There and Everywhere: Introduction and Overview” in Burt Custers (Ed.
), The Future of Drone Use: Opportunities and Threats From Ethical and Legal Perspectives, Springer, 8 journal articles as well as conference papers and other documents having correlation with the issues.
The technique of analysis data used legal interpretation.
Specifically, the international agreements as primary legal materials include: Act No.
74 of 1962 (as amended up to 1991), Namibian Civil Aviation Regulations, 2001, Amendment No.
6 to the International Standards and Recommended Practices, Aircraft Nationality and Registration Marks (Annex 7 to the Convention on International Civil Aviation), adopted by the Council of ICAO on 7 March 2012, Amandement No.
43 to International Standards Rules of the Air, Annex 2 The Convention on International Civil Aviation Organization, 7 March 2012, Amendment No.
43 of Annex 2 of 2012, Law No.15 of 2002 of the State of Qatar, Permenhub No.PM 47/2016, Permenhub No.
PM 90/2015, Permenhub No.PM 90/2015, Permenhub No.PM 180/2015, South African Civil Aviation Authority, Technical Guidance Material for RPAS—Part 101, § 6, 30 Sept 2015 and The Chicago Convention 1944.
III.
RESULTS AND DISCUSSIONS Remotely Piloted Aircraft Drone is a popular name for Unmanned Aircraft (UA) or Remotely Piloted Aircraft (RPA), which was often officially used by governments in pre-Gulf War times (19901991).2 In the official vocabulary of the US Army, drone is defined as a land, sea or air vehicle that is remotely or automatically 2 Mark Edward Peterson, ‘The UAV and the current and future regulatory construct for integration into the national airspace system’, (2010) 71 3 Journal of Air Law and Commerce, 528.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 56 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... controlled.3 This definition shows that drone does not only include UA, but also aerial vehicle that can be controlled either from a distance by human operators (remote control) or automatically controlled.
There may be as many different kinds as there are families of weapons: terrestrial drones, marine drones, submarine drones, even ‘subterranean drones’ imagined in the form of fat mechanical moles.
Provided there is no longer any human crew aboard, any kind of vehicle or piloted engine can be “dronized”.4 Drone can be controlled either remotely by human operators (remote control) or autonomously by robotic means (automatic piloting).
In practice, modern drones mostly combine those two modes of control.
In addition to the three families of drone, the popular term generally refers to aerial vehicle known as Unmanned Aerial Vehicles (UAVs) or Unmanned Combat Aerial Vehicles (UCAVs), depending on whether the contraption carries weapons.
5 This can be seen for example in the definition of UAV from the US Department of Defense as follows:6 ….a powered, aerial vehicle that does not carry a human operator, uses aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, can be expendable or recoverable, and can carry a lethal or non-lethal payload.
Since UAVs may carry lethal weapons such as missiles or bombs, these can be used for military purposes.
3 Gregoire Chamayou, A Theory of The Drone, (The New Press, New York, London, 2015) 11.
4 Ibid.
5 Ibid.
6 Joint Publication 1-20, Department of Defense Dictionary of Military and Associated Terms, March 23, 1994, as amended through April 15, 1998, pp.
138, 369, and 459.
However, since drone is becoming politically unpopular, governmental and nongovernmental entities now often avoid using this term.7 The term ‘drone’ is not recognised or used, for instance, by the Federal Aviation Administration (FAA).
With the move away from the term ‘drone’, Unmanned Aerial Vehicle (UAV) or Unmanned Aircraft Systems (UAS) are often popularly used, especially among the media.
There are various names referring to UAV in Indonesian language, such as Pesawat Udara Nir Awak (Unmmanned Aircraft), Drone, or Pesawat Udara Tanpa Awak (Unmanned Aircraft).
In the English literatures there are various terms that also refer to unmanned aircraft such as, Unmanned Aircraft Systems (UAS), Unmanned Aerial Vehicles (UAV), Remotely Piloted Aircraft System (RPAS), and Drone.
Unmanned Aircraft System (UAS) can be defined as aerodynamic flying systems that can be piloted remotely via a joystick or digital interface supported by different levels of automatic control.
8 UAS is automatically controlled through a designed computer program, or remote control of pilots or operators on the ground or elsewhere instead aboard.
In short, it can be concluded that UAS is an aircraft, which is not operated by pilot aboard.
ICAO (International Civil Aviation Organization) uses the term RPA as an aircraft that is controlled from remote pilot station.9 According to ICAO, RPA shall be operated in such a manner as to minimize hazards to persons, property or other aircraft 7 Peterson, above n. 2 8 Ales Zavrsnik, “Situating Drones in Surveillance Societies” in Ales Zavrsnik (Ed), Drones and Unmanned Aerial Systems: Legal and Social Implications for Security and Surveillance, (Springer, London) 1.
9 Amendment No.
6 to the International Standards and Recommended Practices, Aircraft Nationality and Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 57 and in accordance with the specific conditions.10 For that reason, ICAO emphasizes RPA regulations to licenses, frequency usage, supervision and communication in the operation of RPA.
Indonesia has issued the Regulation of the Ministry of Transportation of the Republic of Indonesia No.
90 of 2015 on Unmanned Aircraft (UA) Operated in the Indonesian air space, which defines UA as aircraft that operates with remote control by pilots or is able to control itself using aerodynamic rules.11 Although there has no agreed definition of unmanned aircraft so far, it has a common or specific characteristic, the absence of pilot aboard to control the aircraft.
This characteristic depicts the nature of an unmanned aircraft and confirming the term RPA as used by ICAO.
For that reason, this paper uses the term RPA to refers to all kind and forms of unmanned aircraft.
Legal Status of RPA Is RPA an aircraft under the Convention?
This is an important question as this Convention does apply only to civil aircraft.12 The Convention defines aircraft as follows: Any machines that can derive support in the atmosphere, from the reactions of the air other than the reactions of the air against the earth’s surface.13 This definition reveals that the winged or helicopter vehicle, which is capable of Registration Marks (Annex 7 to the Convention on International Civil Aviation), adopted by the Council of ICAO on 7 March 2012, p. 3.
10 Chapter 3 Amandement No.
43 to International Standards Rules of the Air, Annex 2 The Convention on International Civil Aviation Organization, 7 March 2012.
11 Article 1.2.2 Permenhub No.
PM 90/2015.
achieving lift constitutes an aircraft.
Since most RPAs use winged and helicopter technologies, they can be categorized aircraft as prescribed under the Convention.
ICAO subsequently broadened this definition by amending Annex 2 of the Convention and inserting the term RPA into the definition of aircraft.14 Thus, ICAO explicitly recognizes RPA as an aircraft and confirms that the term aircraft includes aerial vehicle, which is controlled from remote pilot station.
The recognition RPA as an aircraft is not only a response to technological development of unmanned aircraft, but also justifies the use of the phrase ‘aircraft without pilot’ under the Convention in modern aviation.
The Convention states as follows:15 No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.
Each contracting State undertakes to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil aircraft.
Historically, the phrase "aircraft without a pilot" referred to an unmanned balloon during World War II that used to carry bombs and spying activities into the enemy’s territory.16 This was intended as an aircraft for military purposes.
The amendment to 12 Article 3 of the Chicago Convention states as follows: “This Convention shall be applicable only to civil aircraft, and shall not be applicable to state aircraft”.
13 Annexes 2, 6 & 8 of the Chicago Convention.
14 Amendment No.
43 of Annex 2 of 2012.
15 Article 8 of the Chicago Convention.
16 D.M.
Marshal, ‘International Regulation of Unmanned Aircraft Operations in Offshore and Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 58 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... Annex 2 of the Convention by inserting the term RPA into the definition of aircraft seemed to be a contextualisation the phrase “aircraft without pilot” in Article 8 of the Convention, which is no longer limited to military, but also non-military purposes.
Presently, however, the use of RPA especially by developed countries such as the United States appears to confirm the basic idea of Article 8 of the Convention, which is more focused on using RPA for military purposes.
It is therefore not surprising if the US Department of Defense defines RPA as follows:17 a powered aerial vehicle that uses aerodynamic forces to provide vehicle lifts, can fly autonomously or be piloted remotely, can be expendable or recoverable, and carry a lethal or nonlethal payload.
RPA and Chicago Convention of 1944 The Convention stipulates that every state has complete and exclusive sovereignty over the air space above its territory, which gives the states the right to exercise its sovereignty in absolute terms.18 The Convention provides further that no aircraft including state aircraft of a contracting state fly over the territory of another state without authorization by that state and in accordance with the terms of such authorization.19 Since RPA meets the criteria of an aircraft as prescribed under the Convention, there are two important questions needs for further discuss.
First, does the principle of state sovereignty in air space apply to RPA?
International Airspace’,(2012) 87 8 Issues in Aviation Law and Policy, 93.
17 Ruwantissa Abeyratne, Convention on International Civil Aviation: A Commentary, (Springer, London, 2014), 121.
18 E.M.Giemulla and L.Weber, International and EU Aviation Law: Selected Issues, (Kluwer Law International, Dordrecht, 2011), 6.
Secondly, does the Convention apply also to state aircraft?
There are two different ways to answer the questions, restrictive and inclusive approaches.
The restrictive approach holds that the principle of sovereignty applies only to civil aircraft.
Their argument mainly based on the text of Article I of the Convention, which states as follows: The contracting States recognize that every State has complete and exclusive sovereignty over the air space above its territory.
The article should be read in parallel with the provision of Article 3 (a) of the Convention, which states explicitly that the Convention is applicable only to civil aircraft, and shall not be applicable to state aircraft.
More importantly, the spirit of the Convention as it is stated in its preamble is to govern the civil aviation and for that reason this Convention applies only to civil aircraft.
The preamble of the Convention states as follows: ……the future development of international civil aviation can greatly help to create and preserve friendship and understanding among the nations and peoples of the world, yet its abuse can become a threat to the general security (emphasize added).
They also specifically refer to Article 3 (c) of the Convention, which does not allow state aircrafts to fly over the territory of another state or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.
20 This 19 Article 1, 3 (c), 8 of the Chicago Convention.
20 Article 3 (c) of the Chicago Convention: No state aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 59 provision is originally adopted from the Paris Convention of 1919 that governs the same object.
In other words, this provision reaffirms that the state aircraft is not civil aircraft, which is subject to the provisions of the Convention.
In this regard Lissitzyn states as follows:21 Is the omission in the Chicago Convention of the rules on the privileges of foreign military and other state aircraft contained in Articles 32 and 33 of the Paris Convention intended to imply some change of law?
Or is it merely due to a feeling that provisions dealing with jurisdiction over military aircraft are out of place in a civil aviation prevention?
The publish records of the Chicago Convention give no clue to the answer, but the second explanation seems to be the likely one.
By referring to Article 8 of the Convention they argue that this is a lex specialis provision as this specifically governs the operation of RPA.
Article 8 states as follows: No aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a contracting State without special authorization by that State and in accordance with the terms of such authorization.
Each contracting State undertakes to insure that the flight of such aircraft without a pilot in regions open to civil aircraft shall be so controlled as to obviate danger to civil 21 O.J.
Lissitzyn, ‘The Treatment of Aerial Intruders in Recent Practice and International Law’, (1953) 47 The American Journal of International Law, 563. aircraft.
This Article provides that RPA is not permitted to fly over the territory of another countries without special authorization of that state.
More specifically, this provision is not applicable to RPA that falls under state aircraft category, as this Article should be read in line with the provisions of Article 3 (a) of the Convention, which clearly states that the provisions of the Convention including Article 8 applies only to civil aircraft as well as to RPA for civil aviation purposes.22 Unlike the restrictive, the inclusive approach contends that the principle of state sovereignty in the Convention applies also to state aircraft.
Interestingly, while they refer to the same provisions of the Convention as used by the first approach, they have different interpretations.
They argue that the complete and exclusive sovereignty of state above its territory should be read in general meaning in the sense that this is not applicable only to civil, but also state aircraft.
It gives the state the right to use its airspace for all types of aircraft.
More importantly, Article 1 of the Convention, which establishes the principle of state sovereignty over the airspace and it constitutes the spirit of the Convention, does not use the term ‘civil or state air craft’.
This clearly shows that the principle of state sovereignty over the airspace should be interpreted in a broad sense; it is not exclusively for civil aircraft.
In this regard, Giemulla and Webber neatly state as follows:23 This statement has to be understood in the context that article 1 of the 22 K.Dalamakidis, K.P.Valanis, and L.A.Piegl, ‘Current Status and Future Perspectives for Unmanned Aircraft System Operations in the US’, (2008) 52 Journal of Intelligent and Robotic System, 313.
23 Giemulla and Webber, above n 18, 52 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 60 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... Chicago Convention emphasizes the general international principle of sovereignty of the air as a principle that claims universal application and therefore also – but not exclusively – is a basic precondition for the Convention and its interpretation.
Placing it in front of the description of the area of application of the Convention thus not only is an editorial question, but also serve to show that this principle shall apply to all possible cases.
That is not only for civil aircraft and thereby for the application area of Convention, but also for State aircraft.
With regard to the term "state aircraft" as used in Article 3 (c) and 8, they hold that these are intended to ascertain that the principle of state sovereignty as set forth in Article 1 of the Convention applies to all types of aircraft, including RPA and state aircraft.
However, some have argued that the word "state aircraft", which is explicitly stated in Article 3 of the Convention appears to be regarded as a deceptive term.
This may lead to a distorted conclusion that the Convention only applies to civil aircraft.
Bourbonniere and Haeck argue that the crux of Article 3 is governing the international flight for civil and military purposes.24 This means that Article 3 (c) does not only govern the state aircraft that fly over the airspace of another state, but also the obligation of the state to observe the safety of its navigation.25 Thus, Article 3 (c) should be read as follows: “…no state aircraft of a contracting State 24 M. Bourbonnierre and L. Haeck, “Military Aircraft and International Law: Chicago Opus3”, (2001) 66 Journal of Air Law and Commerce, 894. shall fly over the territory of another state…without its permission”.
The last but not the least is that Article 8 is intended to reiterate the principle of state sovereignty in Article 1, which essentially confirms that this principle applies also to RPA.
Some have argued that Article 8 applies also to RPA for military purposes or state RPA for two reasons.
First, the words of Article 8 which is read as follows"... no aircraft capable of being flown without a pilot" indicates that this Article also recognizes all types of RPA, for civil or military purposes.
The key word is on the word "no", which means all types of aircraft, either civil, state, or military aircraft.
Secondly it is relating to the formulation of Article 8, especially the words "aircraft capable of being flown without a pilot" that historically was intended as a hot air balloon for the purpose of transporting bombs and other weapons (unmanned ballons) in War II.
In other words, it is RPA for military purposes.
RPA Model Regulations The absence of internationally agreed RPA regulations is the main reason for the establishment various national RPA regulations.
The ammendment Annex 2 of the Convention, which incorporates RPA into the term aircraft, makes the convention provisions apply to RPA operations.
However, it is not completely able to answer the legal issues arising from RPA operations, because there are specific issues which rules are not found in the Convention.
This leads the states to set up their national RPA regulations with different approaches that reflect their specific interests in RPA 25 Ibid.
See aslo Article 3 (d) of the Chicago Convention.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 61 operations.
There are at least three approaches used by states in setting up their national RPA regulations, namely, consent and segmented approach, segmented approach, and risk-based approach.26 Consent and Segmented Approach Consent and segmented aircraft-based approach governs RPAs operation by way of issuing government permission and stipulating RPA segmented by weight as the main provisions.
The state sovereignty over the air space is the main legal basis for establishing government-based permission regulations.
This approach, therefore, is also known as a restrictive approach.
The RPAbased segmented by weight regulation is mostly based on safety and security considerations for RPA operations.
Most countries in Africa and Asia apply the consent and segmented aircraft-based regulation models.
RPA has widely been used in many countries in Africa for various objectives that range from the United Nations peacekeeping missions to diamond mining to antipoaching, conservation, and wildlife protection efforts.
However, there are few African countries that have RPA regulations, which among others, Kenya, Morocco, Nigeria, Namibia and South Africa.
27 The content of the regulations are varies, for example, Morocco bans the import of RPA and remote-controlled flying objects.
Kenya and Nigeria require government permision 26 Timothy Ravich, “A Comparative Global Analysis of Drone Laws: Best Practices and Policies” in Burt Custers (Ed.
), 304-317.
27 Ibid.
p. 305 28 Ibid.
29 See Act No.
74 of 1962 (as amended up to 1991), Namibian Civil Aviation Regulations, 2001, Part 101, Rules of the Air and General Operating Rules: Operation of Unmanned Free Balloons, Kites, Rockets and Remotely Piloted Aircraft, § 47.00.2.
See also Ravich, p. 306 for RPA operations.
Namibia and South Africa have relatively more comprehensive regulations that could become guidance for RPA operators.28 For example, the Namibian Civil Aviation Regulation, provides rules of air and general operating rules for remotely piloted aircraft, stating that, “no person shall, without the prior approval of the Director and under such conditions which the Director may determine, operate a kite or remotely piloted aircraft: (a) higher than 150 ft above the surface; (b) within a published controlled zone, air traffic zone or air traffic area; and (c) closer than five nautical miles from the boundary of an aerodrome.” In addition, the regulation imposes requirements for maintenance and aircraft registration with respect to remotely piloted aircraft.29 South Africa issued RPA regulation entitled “Eighth Amendment of the Civil Aviation Regulations, 2015”.
This regulation distinguishes RPA from toy aircraft and recreational aircraft, and classifying RPA by mass, impact velocity, height above ground, and flight rules.30 The rule governs about RPA maintenance, sale and resale, and aircraft registration.31 The rules also provide for commercial, corporate, non-profit, and private operations and disallow RPA owners from operating in weather conditions that obstruct the ability to view the drone; using a public road as a landing or takeoff point; operating in controlled airspace; or carrying dangerous goods as cargo on a RPA.32 The rules require drone pilots to be 18 years or 30 South African Civil Aviation Authority, Technical Guidance Material for RPAS—Part 101, § 6, 30 Sept 2015.
31 Ibid.
32 South Africa Civil Aviation Regulations Committee 2015.
Proposed amendment of the civil aviation regulations, 2011, proposal for the insertion of part 101 of the civil aviation regulations.
www.defenceweb.co.za/_pdf/SA_CAA_101DECEMBER_2014_publication.pdf.
Accessed 13 Februray 2018. http://www.defenceweb.co.za/_pdf/SA_CAA_101-DECEMBER_2014_publication.pdf http://www.defenceweb.co.za/_pdf/SA_CAA_101-DECEMBER_2014_publication.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 62 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... older and to pass a theoretical knowledge examination and possess a valid remote pilot license.33 Most Asian countries have used RPA for different purposes and interests and apply consent and segmented aircraft approach to govern such operations.
Japan has been using RPA since 1980s and in 2015 established “Robot Revolution Realization Committee” to review existing radio and civil aeronautics laws toward the end of establishing industryrun best practices for RPA.
At the same time Japanese regulators drafted a bill that would ban RPA operations above residential areas and prohibit RPA flight “except during daytime.”34 This would lead Japan in the same position with a number of other Asian jurisdictions that are restrictive of RPA operations.
Other Asian countries like Bhutan, Brunei, and India also apply a restrictive approach to RPA operations.
They essentially outlaw civil RPA operations.
Bhutan for example, do not allow for unauthorised RPA, irrespective of size or weight to fly in Bhutanese airspace.
RPA operations in Brunei are illegal, punishable by a maximum fine of $50,000 and a fiveyear prison sentence.
Brunei has justified its RPA ban in terms of safety, as has the Republic of Azerbaijan, which requires RPA meet at least the same safety and operational standards as manned aircraft.”35 For the 33 South African Civil Aviation Authority, Technical Guidance Material for Part 101 Personal Licensing, Advisory Circular, 19 June 2015. http://www.caa.co.za/RPAS%20 TGM/TGM%20for%20Personnel%20Licensing%2 0Part%20101%20(Sub-part%203).pdf.
Accessed 13 February 2018.
34 Sharp A, Takahashi M, “Japan to bolster laws after drone lands on Abe’s office roof, Bloomberg Business”, 22 Apr 2015. http://www.bloomberg.com/news/articles/201504-22/ drone-lands-on-roof-of-japanese-primeminister-s-office-in-tokyo as cited by Ravich, above n. 26, 307. reason of protecting against terrorist attact and safeguarding privacy rights, Cambodia also has prohibited civil RPA operations.
Civil RPA operations in India are still not allowed until the civil aviation authority revises the existing policies.36 Other countries also require government approval for RPA operations.
The Civil Aviation Authority of Sri Lanka for instance states that operation of RPA of weight 3 kg or more requires approval from the Civil Aviation Authority of Sri Lanka.”37 The Ministry of National Defense of Vietnam shall grant flight permission to Vietnamese and foreign military aircraft operating in flights in Vietnam and to unmanned aircraft.”38 Malaysia has prohibited small aircraft weighing less than 20 kg from flying in “controlled airspace or within an aerodrome traffic zone, unless in either case the permission of the air traffic control unit has been obtained.”39 Other countries requires governmen license such as China.
RPA heavier than 7 kg must obtain a license from China’s Civil Aviation Administration.40 For an aircraft that is heavier than 116 kg and operating in the integrated airspace, where manned aircraft also fly, the operator must have both a license and operating certificate.41 Although Hongkong and Philippines are regarded as the Asian countries that apply a more liberal approach of RPA regulations, 35 Ravich, ibid.
36 Ravich, ibid, p. 308.
37 Ibid.
38 Ibid.
39 Ibid.
40 http://www.cad.gov.hk/ english/model_aircraft.html.
Accessed 13 February 2018 41 Orzea E, “China’s UAS regulation: an interesting precedent, November 2014, UAS VISION.
http://www.suasnews.com/2014/11/32433/chinasuas-regulation-an-interestingprecedent/.
Accessed 13 February 2018. http://www.suasnews.com/2014/11/32433/chinas-uas-regulation-an-interesting-%20precedent/ http://www.suasnews.com/2014/11/32433/chinas-uas-regulation-an-interesting-%20precedent/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 63 their contents have similarities with other Asian countries.
Hongkong provides that any person intending to operate RPA (regardless of size and weight), for nonrecreational purposes within Hong Kong must assent to certain operational limitations in advance of the intended date of operation, i.e., flight within 5 km of any aerodrome or over or within 50 m of any person, vessel, vehicle, or structure.42 Philippines have also come forward with detailed registration and operational requirements for RPA activities.
Enforceable through fines and penalties, the Philippines regulations apply to both large and small and require owners and operators to register their equipment and secure a certification to operate.43 The RPA regulations of most Asian countries seem to be more restrictive model.
However, it represents, borrowing the words of Ravich as an intermediate position where RPA operators can fly, but only after satisfying a burden of making a safety and qualification case to central authorities.44 Risk-based approach The European Aviation Safety Agency (EASA) established RPAs regulations in 2017 and proposed three categories of operations in a single regulatory regime: Open, Specific, and Certified.
More specifically, EASA introduced a risk-based approach to the regulation of unmanned aircraft through a “Concept of Operation.” This has been developed to address two main goals: (1) to achieve the integration and acceptance of RPA into the existing aviation 42 http://www.cad.gov.hk/english/Unmanned_Aircra ft_Systems.html.
Accessed 13 February 2018.
43 Ravich, above n. 26, 309.
44 Ravich, above n. 26, 308.
45 EASA, “European aviation safety agency, concept of operations for drones”, 2015. http:// system in a safe and proportionate manner; and (2) to foster an innovative and competitive European drone industry creating new employment, particularly for small and mid-size enterprises.45 To this end, in August 2016 the EASA proposed the establishment of a Commission Regulation on Unmanned Aircraft Operations.
Despie the facts of the absence of unifying international standards of RPA regulations and the fragmentation of the regulations in Europe, it was the fastest developing area in the World for RPA operations by mid-2015, with 2495 operators of RPA weighing less than 150 kg and 114 RPAs manufacturers.46 Their regulations mostly emphasized on segment aircraft by weight, purpose (e.g.
hobby or recreational) or commercial (revenue generating)), and performance (e.g., altitude restrictions, pilot qualification, registration, and/or licensing).
France, for instance established general rules on the use of RPA (weighing from 2 to 150 kg) for leisure, competition, specific activities, aerial work, etc.
In addition, the rules classified RPA into seven operational categories based on mass.
In this scheme, visual line of site operations are allowed for drones less than 25 kg in mass below 150 m over unpopulated areas and for less than 4 kg of mass over populated areas.
All operations are forbidden in the vicinity of airports, and subject to prior authorization over populated areas.
Illegal RPAs operations carry a maximum sentence of a year in prison, as well as a $90,000 fine.47 www.easa.europa.eu/system/files/dfu/204696_EA SA_concept_drone_brochure_web.pdf.
Accessed 13 February 2018 46 Ravich, above n. 26, 309.
47 Ibid, 309-310.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 64 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices...
Discretion of Authority RPA regulations in the Middle East at the first instance more focused on governing RPA for military purposes.
Recently, however, an emerging regulatory structure has emerged to govern civil RPA operations in several countries such as Bahrain, Egypt, Israel, Lebanon, Qatar, Turkey, and the United Arab Emirates (“UAE”).
They mostly govern RPA operations based upon the discretion of authorities.
Bahrain and Egypt, for example provide that unmanned aircraft may operate in the territory of the States only upon authorization by the Civil Aviations Authority.48 For the same reason, Qatar’s Civil Aviation Law states that unmanned aircraft shall not fly in the territory without authorization from the Civil Aviation Authority.49 Unlike other countries such as Israel, Turkey, UAE, and Lebanon, those countries do not provide explicit direction how operators obtain such permission.
Other countries such as Israel, Turkey, UAE, and Lebanon have a bit different approaches as they use categorization of unmanned aircraft by weight for having permission.
Israel use the U.S. and European models that apply airworthiness standards for creating a regular permitting process for nonmilitary unmanned flight.50 Turkey applies procedures for permitting the flight of unmanned aircraft with a maximum takeoff weight between 4 and 150 kg.51 The UAE use regulatory guidance and licensing rules based 48 Ibid.
p. 311.
49 Fahmy, H eba, “New rules in the works to regulate drone usage in Qatar, Doha News, 26 Mar 2015. http://dohanews.co/new-rules-in-the-works-toregulate-drone-usage-in-qatar/.
Accessed 13 February 2018.
See Article 30 of the Law No.15 of 2002 of the State of Qatar.
50 Ravich, above n. 26, 312.
51 See http://web.shgm.gov.tr/en/s/2222-proceduresfor-certificate-of-special-flight-permit.
Accessed 13 February 2018. on a categorization of unmanned aircraft by weight, e.g., low-capacity drones (not exceeding 25 kg in weight), mid-capacity drones (ranging from 25 to 150 kg), and advanced capacity drones, exceeding 150 kg.52 The last but not the least, Lebanon provides that “no person shall operate a nonpiloted aircraft in flight except in accordance with a special flight operations certificate or an air operator certificate.”53 Segmented Approach Several countries in North America, Latin America, Canada, and Australia apply this approach to govern their RPA operations.
The North American countries have been considered to represent the more robust RPAs policies and rules world-wide, however the content and orientation of RPAs regulations of most countries in that region apply the segmenting aircraft approach, especially segmenting by mass.
For the same reason, since April 2015 Mexico implemented new rules with different weight classes with several classes of RPA permitted to fly only in daylight.54 Canada that follows European model provides that RPA less than 2 kg can be flown for any purposes without permission.
For RPA that weight between 2.1 and 25 kg can be flown if Transport Canada is informed of the type and location of flight.
RPA being used for work or research that weight more than 25 kg or recreational drones weighing over 35 kg can only be flown with a Special 52 United Arab Emirates, General Civil Aviation Authority, Operation of Unmanned Aerial Systems within the United Arab Emirates, CAR Part VII, Subpart 10, https://www.gcaa.gov.ae/ en/Pages/uas.aspx.
Accessed 13 February 2018.
53 Lebanese Aviation Regulation, General Operating and Flight Rules (2002), Republic of Lebanon, Ministry of Public Works and Transport, Directorate General of Civil Aviation.
54 Ravich, above n. 26, 312. http://dohanews.co/new-rules-in-the-works-to-regulate-drone-usage-in-qatar/ http://dohanews.co/new-rules-in-the-works-to-regulate-drone-usage-in-qatar/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 65 Flight Operations Certificate.
All flights must stay below 90 m, within line of site, far from airports, populated areas, and moving vehicles.
“Work or research” RPA operators must have $100,000 liability insurance, and all drones must give rightof-way to manned aircraft.55 In 2016 the U.S established the rules provided that RPA must be less than 55 lbs, operated within visual line of sight at a maximum speed of 87 knots and a maximum altitude 400 ft above ground level.
In addition, the U.S generally allows hobby and recreational RPA operators to fly within particular safety guidelines.
However, commercial RPA is banned from operation unless it is exempted under specific requirements.56 One of the critics to the U.S policy of RPA is that relating to the delay in finalizing regulations for the integration of drones into the national airspace system.
This lead to illegal operation of RPA in the territory of foreign countries as for instance it is explained by the permissible nature of both private and commercial drone operations nearby Canada.57 RPA has widely been used in Latin and South American countries for a variety of purposes ranging from wildlife and rainforest conservation to anti-drug trafficking.
However, most of the countries have not established adequate RPA regulations governing such activities.
Only a few countries, such as Argentina, Brazil, and Chile are featuring some of the most interesting RPA regulations.
In 2015 the Argentine Civil Aviation Authority has proposed a project to regulate RPA together with provisional regulations 55 Ibid, 313.
56 Federal Aviation Administration, Section 333 Frequently Asked Questions, https://www.faa.
for UAV.
The regulations would not permit commercial operations, but would allow the operation of RPA weighing more than 10 kg, provided operators are of legal age and have a special license, among other operational restrictions.
Brazil more focuses on controlling its airspace rather than formally regulating commercial RPA usage.
However, Brazil has proposed final set of rules for RPA weighing less than 25 kg to operate up to 400 ft.
In addition, Brazil has has specifically proposed classifying UAV into three categories: Class III: from 0 to 25 kg, Class II: from 26 to 150 kg, and Class I: over 151 kg.
In 2015, Chile presented the first regulations for civil use in Latin and South America, which do not authorize commercial operations, but rather establish where civil (non-military) RPA can fly subject to fines for violations of the rules of up to 22 million pesos $US 35,000).58 Australia was the pioneer in the region to produce RPA rules, which was established since 2002.
The rules required RPA operators to hold a valid Operator Certificate before operating for commercial purposes especially for all operations not conducted in a “clear designated airspace, aerodromes and populous areas and remains below 400 ft AGL.” However, civilian RPAs do not need to have such approval, but operators must stay at least 30 m away from others, keep their RPAs under 400 ft and within line of sight, and RPAs must not be operated above a large gathering of people or within 5 km of an airport.
New Zealand followed the Australian model to govern RPA operation.
RPA must be flown under 400 ft, must be kept in the line of sight, can only fly during gov/uas/legislative_programs/section_333/333_fa qs/#q3.
Accessed, 13 February 2018.
57 Ravich, above n. 26 58 Ravich, above n. 26, p.315-317.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 66 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... the day, must stay at least 4 km away from aerodromes, and must weigh under 25 kg.
New Zealand permits the commercial usage of RPA as long as other rules are followed.59 Indonesian RPA Regulation Model Like other states, Indonesia set up RPA regulation as a response to various RPA operations, which have not specifically been governed by the Convention.
Indonesia issued the first RPA regulation in 2015, which was then amended twice and the last amendment was in 2016.
Indonesia uses the consent and segmented approach for its RPA regulation, which focuses on government permits and segmented RPA by mass for RPA operations.
Consent and Segmented Approach Indonesia issued the Regulation of the Ministry of Transportation No.PM 90 /2015 on the Control of Operation of Unmanned Aircraft in Airspace Serviced by Indonesia as the first regulation on RPA.
The main reason for the issuance of this regulation is that to ensure the safe operation of the RPA in the Indonesian airspace.
This regulation consists of five chapters: introduction, general provisions on RPA operations, special provisions on RPA operations, restrictions on the use of RPA that carry certain tools, and legal sanctions.
The introductory section provides two things.
First, it is the implementation of the rules, which is actually stating the purpose and the scope of this regulation.
Secondly, it provides a number of definitions relating to RPA operations.
The primary objective of this regulation is to ensure safety and security 59 Ravich, above n. 26, 317.
60 Permenhub No.PM 90/2015, Art.
1.1 61 Ibid.
Art.1.2.2 62 Ibid.
Art.1.2.3 against possible dangers resulted from RPA operations.
The scope of this regulation covers among others the requirements, limitations and permits for the operation of the RPA system in the Indonesian airspace.60 This regulation provides eight legal and technical definitions, which among others, the definition of RPA, prohibited area, restricted area, and controlled airspace.
RPA is defined as a flying machine that works with remote control by pilots or is able to control itself by using aerodynamics laws.61 Prohibited areas are defined as certain airspace above land and / or waters, with the permanent and detailed restrictions for all aircrafts.62 Restricted areas are certain airspace above land and / or waters with nonpermanent restriction and can only be used for state flight operations and when not in use (inactive), this area can be used for civil aviation.63 Controlled airspace is a type of air space equiped with air traffic services such as air traffic control services, flight information services and alerting services.
Other definitions are about Flight plan, Airport Flight Safety Area, uncontrolled airspace, and operators.
64 The general provisions on RPA operations require three conditions.
First, RPA can be operated by individuals, communities, and government agencies.
Secondly, RPA should not be used in prohibited areas, restricted areas, and airport safety zones.
Thirdly, RPA should not be operated in controlled airspace and uncontrolled airspace at the altitudes of more than 500 ft. 65 Special provisions are granted to RPA operations for certain purposes such as country border patrols, maritime patrols, 63 Ibid.
Art.1.2.4 64 Ibid.
Art.1.2.6 65 Ibid.
Art.
2.2.1 – 2.2.3.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 67 weather observations, surveys and mapping.
In addition, RPA can be operated at an altitude of more than 500 ft with the permission granted by the Directorate General of Civil Aviation (DGCV)66 The application for obtaining such a permission must be submitted to DGCV no later than 14 days prior to RPA operations by providing documents, which contains information such as: name and contact of operators, technical specification of airborne systems, ground system technical specifications, purpose of the flight, flight plan, insurance document, and pilot competency.
67 The applicant must also provides information concerning the flight plan which includes, among other things, the identification of the RPA, the equipment carried (eg camera, sprayer, crank), estimated operation time, cruising speed, and flight route.
After having permission from the DGCA, the operator should coordinate with the air navigation service unit responsible for the air space where RPA will operate.68 This regulation also imposes a number of restrictions on RPA that carries certain equipment.
RPA that carries camera is prohibited to operate 500 m from the outer limit of the prohibited areas or restricted areas.
In the case RPA is used for photography, filming and mapping, it must provides a letter of permission from the authorized institution and the local government whose territory will be photographed, filmed or mapped.
For RPAs carrying agricultural equipment only allowed to operate on the agricultural / plantation areas as described in the submitted flight plan.
The operation of RPA in agricultural / 66 Ibid.
Art.
3.3.1.
67 Ibid.
Art.
3.3.1-3.3.4 68 Ibid.
Art.
3.3.5-3.3.6 plantation area is allowed if there is no settlement within 500 m from the outer limit of this area.
RPAs that are used by the government for purposes such as border patrols, marine patrols, weather observations, scheduled and unscheduled surveys and mapping using individual flight plans is allowed to operate.69 The last but not the least, this regulation stipulates that operators who violate the rules and/ or is proven to be negligent shall be imposed sanctions according to the prescribed laws and regulations.
This regulations, however, does not specifically mention the types of such legal sanctions, but it refers to other relevant rules, such as aviation laws.70 The government amended this regulation by issuing Ministerial Regulation No.PM 180/2015.
Although it is not specifically stated, the absence and unclarity of several technical and legal terms in the previous regulation, which are necessary for RPA operations, are the reasons for this amendment.
Unlike the previous one, the new regulation explicitly determines the limits of air space for RPA operations.
However, this new regulation does not define the flight plan, while this term is still used as one of the special requirements to obtain RPAs operating permissions.
If the reason is that because it has already been regulated in the previous regulation, why the same definition appears in the new regulations, so it makes rather superfluous and overlapping rules.
This new regulation provides an additional explanation of the terms prohibited and restricted areas that are the area, which are published in the Indonesian 69 Ibid.
Art.
4.4.1-4.4.5 70 Ibid.
Art.5 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 68 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... Aeronautical Information Publication (AIP) Volume I General & Enroute.71 In addition, it provides the explanation of Airpot Flight Operation Safety Area that is the area with the horizontal and vertical limits as regulated in the relevant and related rules.72 Other additional explanation is that about the term controlled airspace that is an airspace, which is published in the Indonesian Aeronautical Information Publication (AIP) Volume I General & Enroute.
While uncontrolled airspace is defined as the air space outside the Airport Flight Safety, which the function is to serve as Aerodrome Flight Information Service.73 The new regulation also provides specific provisions on RPA volume.
For example, RPA operations with the weighing no more than 55 lbs and used for non-hobby and leisure purposes shall comply with the provisions of Civil Aviation Safety Regulation (CASR) Part 107.
Other provisions stipulate that RPA weighing above 55 lbs for research and development purposes, crew training and market surveys, must register an experimental certificate in accordance with the provisions of CASR Part 21 sub chapter 21.193.74 Due to the lack of procedural rules, particularly on the submission of insurance documents and the imposition of legal sanctions, the government issued the Ministerial Regulation No PM 180 /2015 to amend this regulation.
It provides the provisions concerning the necessity of submitting insurance documents in the application for permits and emphasizing of legal sanctions against negligence and / or breaking the rules of the operation of the 71 Permenhub No.PM 180/2015, Art.
2.2.4 72 Ibid.
Art.2.2.5 73 Ibid.
Art.2.2.3 – 2.2.7 74 Ibid.
Art.
3.3.3 RPAs.
With regard to the insurance documents as a requirement for obatining RPA operating permission, it provides as follows: “ The applicant for permit should provides information concerning RPA system and supporting documents as follows, …insurance documents that also covers the damages or losses of third parties caused by the failure of RPA system”.75 Unlike the previous regulation, the new regulation provides more detail about legal sanctions.
This will be imposed, among others to unauthorized RPA operations or RPA operations that are not comply with the requirements of the granted permission.
In addition, the imposition of the sanctions will take into account the safety interests of airspace users and the protection of buildings and people under the area and airspace used by RPA.76 The DGCA has an authority to impose a legal sanction for the RPA that violating the rules at the Airport Flight Safety Operations, Controlled airspace and uncontrolled airspace at the altitudes of more than 500 ft Above Ground Level, while for the RPA that violating the rules at the prohibited and restricted areas, the Indonesian Armed Forces has responsible to impose such a legal sanctions.
However, this is not a penal, but rather administrative sanction in the form of, warning, suspension of permits, revocation of permits, and administrative penalties.77 Technical Issues The preceding discussion reveals that the existing Indoneian RPAs regulation is mostly related to technical issues.
It can be seen by assessing three specific issues as 75 Permenhub No.PM 47/2016, Art.3.1.1 (k).
76 Ibid.
Art.5.1-5.2.
77 Ibid.Art.5.3-5.4 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 69 follows: (i) the process of establishing the regulation, (ii) the form of regulation, and (iii) the substance (the content).
The processes of establishing the regulations appear to be intended as short-term response to the wide-ranging RPA operations, which is not followed by an adequate regulation.
This is a preliminary response as well as testing the water to see the response of the RPA operators and other stakeholders.
One of the serious consequences of that is the regulations are subject to much revision and legal uncertainties are unavoidable facts.
The revisions that mostly related to technical explanations and other technical requirements confirmed the ad hoc or temporary nature of the regulations.
This can be seen, for example, the technical explanation on the definition of prohibited and restricted areas in Permenhub No PM 180/2015 as these terms are not clearly defined in the previous regulation (Permenhub No.PM 90/2015).
Due to the rapid development of RPA technology and its extensive use, it is likely that the existing regulations will continue to follow those developments and hence the revision of the regulation is necessity.
The existing RPA regulations take the form of the Ministerial Regulation, which the content mostly related to technical procedures.
This is regarded as the most appropriate legal instrument for two reasons.
First, there has been no agreed international regulation governing RPA operation so far.
Secondly, RPA technology is still growing, so it will affect the substance of the regulation.
However, since the substance of the RPA regulations also covers procedures and mechanism to apply the fundamental principles in air (transportation) law such as 78 Benjamyn Scotts, “Key Provisions in Current Aviation Law” in Burt Custers (Ed.
), p. 242 state sovereignty over the airspace and safety, Government Regulation (Peraturan Pemerintah) is more appropriate legal form to govern RPA operations.
In addition, Government Regulation is an interministerial-rule product, which is substantially more comprehensive as well as its making process, thus it ensures greater legal certainties for the operators and other stakeholders.
As a short-term response, the contents of the Indonesian RPA regulation are limited to technical issues such as licensing, prohibited actions, and segmented aircraft by mass.
This uses consent and segmented approach, a variant of RPA regulatory model that is widely used in most Asian and African countries and a number of countries in North and South America.
Thus it can be said that the content of Indonesian RPA regulation not only follows, but also represents an ad hoc nature of RPAs regulation accross the world.
The Proposed RPA Regulation Model The Chicago Convention, the model of RPA regulations in several countries, and the special interests of Indonesia as an archipelagic state are the three important elements that should be taken into account in the establishment of an appropriate and adequate Indonesian RPA regulation.
The recognition of RPA as an aircraft through the amendement Annex 2 of the Convention has brought about specific consequences to the content of the RPA regulations.
The Convention provisions are applicable to RPA, especially for civil RPA that uses for international flight.78 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 70 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices...
Some key provisions of the Convention which must be considered to be the content of the Indonesian RPA regulation includes; the provision on pilotless, registration, nationality, certificate of airworthiness, noise and emission standards, and investigation of accidents.
In addition, there are some provisions other than the Convention, which have the level of urgency to be inserted into the RPA regulation, among others; operators liability, especially liability for the third parties, insurance, and criminal provisions.
RPA regulatory models of most countries accross the World have a number of common elements that can be used as reference for other countries including Indonesia to set up their RPA regulations.
They typically use consent and RPA segmented approach by mass, which essentially they apply the Convention provisions, particularly the principle of state sovereignty over airspace to govern RPA operations.
In addition, this approach is also a response to the interaction between law and technology, which in fact always put the law lags behind the technology.
In this context, Ravich neatly states as follows, “RPA operations demand that aviation authorities around the world re-imagine local, national, and international airspace systems originally designed for manned assets”.
79 Therefore, the establishment of RPA regulations that technologically adaptive is the most rational and factual solution.
RPA has widely been used for different purposes including commercial purposes.
In this context, to set up RPA regulations the government should take into account the interests of tripartite stakeholders namely, government, manufcaturers (producers), and users.
They should not be isolated by their own interests, which are counterproductive 79 Ravich, above n. 26, 317. to RPA operations.
For example, the government provides RPA regulatory schemes that are based on nothing more than a public fear of the unknown.
States practices reveal that private and public stakeholders reflect the conservatism of the RPA laws in their jurisdiction while vigilantly putting together a safety case that accurately assesses the operational risk while emphasizing the civil benefits of unmanned aviation.80 For Indonesia as an archipelagic state with the largest airspace in ASEAN, RPA operations create challenges and opportunities.
This large airspace, however, has not properly been managed due to the fact that the numbers of air force personnels who have a constitutional mandate to uphold the state sovereignty over the airspace are limited.
This is certainly very susceptible for violation to the Indonesian airspace by foreign aircraft, and this is a challenge that has not been fully resolved.
This challenge will certainly be even greater with the operation of RPA in the Indonesian airspace.
Some have observed that RPA operations would facilitate and boost economic activities.
The advanced RPA technology would be a sophisticated answer for geographical obstacles of economic development caused by the vast territory of Indonesia that consist of thousands of islands.
However, at the same time this opportunity will give rise another challenges, because RPA operations will create new air traffic complications in the Indonesian airspace, which potentially hamper to civil aviation activities.
This in turn requires adequate and appropriate regulations to ensure the safety of civil aviation and RPA operations.
The preceding discussion reveals that the content and the form of regulation are the 80 Ibid, 318.
Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... | 71 two important aspects that should be taken into consideration in setting up the Indonesian RPA regulation.
In terms of content, RPA regulation should refer to the Convention provisions, the States practices, and the interests and the needs of Indonesia as an archipelagic State.
With regard to the form of regulation, Government Regulation (Peraturan Pemerintah) is the most appropriate form for two reasons.
First, Government Regulations is an interministerial-rule product, which is substantially more comprehensive that ensures greater legal certainties for the stakeholders of RPA operations.
Secondly, this form of regulation is more adaptive to changes especially that relates to technical and procedural matters, because unlike an Act (Undang-Undang), this law-making process not subject to political considerations.
IV.
CONCLUSIONS AND SUGGESTIONS The use of RPAs can be found in virtually all sectors of society, both public and private sectors, even in military domain.
RPA operations for different purposes give opportunities as well as challenges, and one the challenges is that the absence of internationally agreed RPA regulation.
This eventually makes RPA regulation is decentralized in nature.
The Chicago Convention, the model of RPA regulations in several countries, and the special interests of Indonesia as an archipelagic state are the three important elements that should be taken into account in the establishment of an appropriate and adequate Indonesian RPA regulation.
The recognition of RPA as an aircraft through the amendement of Annex 2 of the Convention has brought about specific consequences to the content of the RPA regulations.
The Convention provisions are applicable to RPA, especially for civil RPA that uses for international flight.
Most countries typically use consent and RPA segmented approach by mass, which essentially they apply the Convention provisions, particularly the principle of state sovereignty over airspace to govern RPA operations.
In addition, this approach is also a response to the interaction between law and technology, which in fact always put the law lags behind the technology.
For Indonesia as an archipelagic state with the largest airspace in ASEAN, RPA operations create challenges and opportunities.
This large airspace, however, has not properly been managed due to the fact that the numbers of air force personnels who have a constitutional mandate to uphold the state sovereignty over the airspace are limited.
This is certainly very susceptible for violation to the Indonesian airspace by foreign aircraft, and this is a challenge that has not been fully resolved.
This challenge will certainly be even greater with the operation of RPA in the Indonesian airspace.
REFERENCES Books Abeyratne, Ruwantissa Convention on International Civil Aviation: A Commentary, (Springer, London, 2014).
Chamayou, Gregoire A Theory of The Drone, (The New Press, New York, London, 2015).
Custer, Burt “Drones Here, There and Everywhere: Introduction and Overview” in Burt Custers (Ed.
), The Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 72 | Uweh, Ruhaeni In Search of Remotely Piloted Aircraft Regulations State Practices... Future of Drone Use: Opportunities and Threats From Ethical and Legal Perspectives, (Springer).
Giemulla E.M. and Weber, L.International and EU Aviation Law: Selected Issues, (Kluwer Law International, Dordrecht, 2011).
Joint Publication 1-20, Department of Defense Dictionary of Military and Associated Terms, March 23, 1994, as amended through April 15, 1998.
Lebanese Aviation Regulation, General Operating and Flight Rules, (Republic of Lebanon, Ministry of Public Works and Transport, Directorate General of Civil Aviation, 2002) Zavrsnik, Ales “Situating Drones in Surveillance Societies” in Ales Zavrsnik (Ed), Drones and Unmanned Aerial Systems: Legal and Social Implications for Security and Surveillance, (Springer, London) Journal Articles Marshal, D.M., ‘International Regulation of Unmanned Aircraft Operations in Offshore and International Airspace’, 87 8, Issues in Aviation Law and Policy.
Dalamakidis, K., Valanis, K.P., and Piegl, L.A., ‘Current Status and Future Perspectives for Unmanned Aircraft System Operations in the US’, (2008) 52 Journal of Intelligent and Robotic System.
Peterson, Mark Edward, ‘The UAV and the current and future regulatory construct for integration into the national airspace system’, 71 3 Journal of Air Law and Commerce.
Bourbonnierre, M., and Haeck, L., ‘Military Aircraft and International Law: Chicago Opus3’, (2001) 66 Journal of Air Law and Commerce.
Lissitzyn, O.J.
, ‘The Treatment of Aerial Intruders in Recent Practice and International Law’, (1953) 47 The American Journal of International Law.
Internet EASA, “European aviation safety agency, concept of operations for drones”, 2015. http://www.cad.gov.hk/english/Unmanned_ Aircraft_Systems.html.
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Orzea E, “China’s UAS regulation: an interesting precedent, November 2014, UAS VISION.
http://www.suasnews.com/2014/11/32 433/chinas-uas-regulation-aninterestingprecedent/.
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Sharp A, Takahashi M, “Japan to bolster laws after drone lands on Abe’s office roof, Bloomberg Business”, 22 Apr 2015. http://www.bloomberg.com/news/artic les/2015-04-22/ drone-lands-on-roofof-japanese-prime-minister-s-officein-tokyo.
South African Civil Aviation Authority, Technical Guidance Material for Part 101 Personal Licensing, Advisory Circular, 19 June 2015. http://www.caa.co.za/RPAS%20 TGM/TGM%20for%20Personnel%20 Licensing%20Part%20101%20(Subpart%203).pdf.
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234 | DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.08 State Regulation on Business Entities Owned by State Universities: Losses and Liability Shinta Hadiyantinaa, Nandaru Ramadhanb a,b Faculty of Law, Universitas Brawijaya Email: shinta_fh@ub.ac.id Submitted : 2019-08-14 | Accepted : 2019-10-30 Abstract : The Act of Higher Education stated that Higher Education Management Autonomy is carried out by the basis and objectives and abilities of tertiary institutions.
This causes not all State Universities to have the same status, one of which is Legal Entity State University.
Legal Entity State University is a state university established by the government which is an autonomous public legal entity.
Implementing regulations related to Legal Entity State University is Government Regulation Number 26 in 2015 on the Form and Mechanism of Legal Entity State University Funding.
The Government Regulation indicates that Legal Entity State University can have a business entity.
The problem is, if the Legal Entity State University carries out a business activity, there will be a possibility that the business will suffer losses.
If there is a loss, how is the liability for the loss of the Legal Entity State University?
Based on the business judgment rule doctrine, not every business loss is classified as a state loss.
If the financial loss is not caused by intentional acts against the law or abuse of authority, then that matter is not classified as a state loss.
If the losses included state losses, then the liability losses caused by the activities of those business entities owned by state universities are carried out in three ways, there are criminal liability, civil liability, and accountability in the state administrative law.
Keywords: legal entity state university; business entities owned by state universities; losses; liability I.
INTRODUCTION Common goals or ideals determine the upholding of the constitution and constitutionalism in a country because it is the shared ideals that at the peak of their abstraction most likely reflect the similarities of interests among fellow citizens who in reality must live aid of diversity or pluralism.
Therefore, in a society, to guarantee togetherness in the framework of state life, it is necessary to formulate common goals or ideals which are also referred to as state philosophy or staatsidee (state ideals) which function as filosofische grondslags and mailto:shinta_fh@ub.ac.id Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 235 common platforms or kalimatun sawa among fellow citizens in the context of state life.1 In Indonesia, the intended philosophical foundations are commonly referred to as Pancasila, which means five precepts or five basic principles for achieving or realizing the four goals of the state.
The five basic principles of Pancasila include principles or (i) Believe in the One and Only God, (ii) Just and Civilized Humanity, (iii) The Unity of Indonesia, (iv) Democratic rule that is guided by the strength of wisdom resulting from Deliberation/Representation, and (v) Social justice for all the people of Indonesia.
These five precepts are used as a philosophical-ideological basis for realizing the four goals or ideals of the ideal of the state, namely: (i) to protect the whole people of Indonesia and the entire homeland of Indonesia, (ii) to advance general prosperity, (iii) to develop the nation’s intellectual life, and (iv) to contribute in the implementation of a world order based on freedom, lasting peace, and social justice.2 The administration of government in Indonesia is essential to fulfilling the mandate contained in the Preamble of the 1945 Constitution of the Republic of Indonesia (hereinafter referred to as the 1945 Constitution), in the fourth paragraph.
The notion of governance can be understood through two meanings: on the one hand in the sense of "governmental function" (governing activities), on the other hand in the sense of "governmental organization" (a set of governmental 1 Jimly Asshiddiqie, Konstitusi Bernegara: Praksis Kenegaraan Bermartabat dan Demokratis, (Malang: Setara Press, 2015), p. 57.
2 Ibid, p. 58.
3 Philipus M. Hadjon dkk., Pengantar Hukum Administrasi Indonesia (Introduction to The Indonesian Administrative Law), (Yogyakarta: Gadjah Mada University Press, 2008), p. 6.
4 Muhammad Rakhmat, 2014, Hukum Administrasi Negara Indonesia, Journal of Majalengka entities).
The function of government (executive) can be formulated negatively as all sorts of activities of the authorities which cannot be mentioned as a regulatory (legislative) or judiciary (judicial) activity.3 This is in line with the residual theory of Van Vollenhoven in his book "Omtrek Van Het Administratief Recht", which divides government power or functions into four functions namely function of governing (bestuur), function of policy (politie), function of adjudicating (justitie), and function of regulating (regelaar).
The function of governing in a modern state has a very broad task, not only limited to the implementation of laws.
The government has interfered in matters of community life in the economic, socio-cultural, and political fields.4 In the conception of the modern state of law (welfare state, verzorgingsstaat), the government has a responsibility to maintain general welfare (bestuurszorg).
On the other words, the task and function of the government is to regulate (regelen) and manage (besturen) the works on administration and to serve public order (Algemeen belang).5 This function of the government is run by the government to carry out the State’s idea, i.e.
to protect the whole of Indonesia and the entire homeland of Indonesia, to improve general welfare, to advance intellectual life, and to participate in the world order.6 Education is one of the government affairs that must be held by the government.
University, accessed on 5 March 2018, from jurnal.unma.ac.id/index.php/RBJ/article/downloa d/531/495, p. 55.
5 Ridwan, Tiga Dimensi Hukum Administrasi dan Peradilan Administrasi, (Yogyakarta: FH UII Press, 2009), p. 37.
6 Paragraph 4 of the Preamble of the Constitution of the Republic of Indonesia in 1945.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 236 | Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities... Education is considered so important that the law requires 20% of the total State Budget (APBN).
To regulate the implementation of education, the government issued Act Number 20 in 2013 on the National Education System (hereinafter referred to as the National Education System Act).
This law is a renewal of the previous National Education System Act, namely Act Number 2 the Year 1989 on the National Education System.
Act Number 2 the Year 1989 on the National Education System is deemed inadequate and needs to be replaced and needs to be refined to conform the mandate amending in the 1945 Constitution of the Republic of Indonesia.
The National Education System Act states that "National education functions to develop capabilities and shape the dignified character and civilization of the nation in the context of educating the life of the nation, aiming at developing the potential of learners to become human beings who believe and have faith in God Almighty, have good morality, be healthy, knowledgeable, competent, creative, independent, and become democratic and responsible citizens”.7 This act also regulates the rights and obligations of citizens, parents, the community and the government in administering the national education system.
These rights and obligations are presented in the Table Rights and Duties of Citizen, Parents, Community, and Government in Organizing National Education System.
Table Rights and Duties of Citizen, Parents, Community, and Government in Organizing National Education System8 Citizen Parent Community Government Right to get a good education Right to get education for the entire of his life Right to special education, for: 1.
Those handicapped in physical, emotional, mental, intellectual, or social 2.
Those in a remote area, as well as that, belong to the indigenous community Right to choose education units, and to obtain information on the development of their children Right to participate in the planning, executing, and monitoring process of the education program.
Right to direct, guide, support, and supervise the organization of education according to the legislation.
7 Article 3 of the Act Number 20 Year 2013 on National Education System.
8 Article 5-11 of the Act Number 20 Year 2013 on National Education System.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 237 K Must attend basic education (age 7-15) Be responsible to ensure the implementation of education.
Responsible to provide basic education to his children according to the age Responsible to provide materials support in the organization of education Responsible to provide service and access, as well as ensure the organization of good education.
Responsible to guarantee the provision of funding for the organization of education source: Primary data, processed, 2019.
The Act of National Education System divides education paths into 3, namely formal education, non-formal education, and informal education.9 The level of formal education consists of elementary education, secondary education, and higher education.10 Basic education is in the form of Elementary School (SD) and Madrasah Ibtidaiyah (MI) or other equivalent forms, as well as Junior High Schools (SMP) and Madrasah Tsanawiyah (MTs), or other equivalent forms.11 According to Act Number 23 in 2014 on Regional Government, basic education is under the authority of the district/cityregional government.
Secondary education consists of general secondary education and vocational secondary education.
Secondary education is in the form of Senior High School (SMA), Madrasah Aliyah (MA), Vocational High School (SMK), and Vocational Aliyah Madrasah (MAK), or other equivalent forms.12 According to Act Number 23 Year 2014 on Regional Government, secondary education is the authority of the provincial regional government.
Higher education is the last level of education, right after secondary education, that includes diploma, 9 Article 13 Paragraph (1) of the Act Number 20 Year 2013 on National Education System.
10 Article 14 of the Act Number 20 in 2013 on National Education System.
11 Article 17 Paragraph (2) of the Act Number 20 in 2013 on National Education System.
12 Article 18 Paragraph (3) of the Act Number 20 in 2013 on National Education System.
13 Article 19-20 of the Act Number 20 in 2013 on National Education System.
undergraduate, master's, specialist, and doctoral education programs organized by tertiary institutions.
Colleges can be in the form of academies, polytechnics, high schools, institutes, or universities.13 The authority to regulate higher education is regulated by the minister.
The existing problem with this Act is Article 53, which regulates the Education Legal Entity.
This article consists of 4 paragraphs, which in essence is mandatory for all formal education providers and/or units established by the Government or the community in the form of educational legal entities.
Article 53 paragraph (4) also mandates that a law related to the Education Legal Body be established.
The intended law was passed in 2009, namely Act Number 9 Year 2009 on Educational Legal Entities (hereinafter referred to as BHP Act).
The rationale for the need to establish Act Number 9 Year 2009 on Legal Entity of Education (BHP Act) is closely related to the principle of broad autonomy in the administration of higher education in Brawijaya Law Journal Vol.
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The rationale in question is as follows14: 1.
To be able to realize the functions and objectives of national education based on the 1945 Constitution of the Republic of Indonesia, implemented based on the autonomy of higher education in a higher educational institution; 2.
The autonomy of higher education can only be realized if the implementation of higher education in the form of legal entity functions to provide fair and good services to students, non-profit principles, and can manage funds independently to advance national education.
Thus the BHP Law was formed.
Furthermore, in the clarification of the BHP Law, it is explained that the regulation of educational legal entities is an implementation of state responsibility and is not intended to reduce or avoid state constitutional obligations in the field of education to burden the community and/or students.15 The content of the lawsuit over the BHP Law was submitted by the judicial review to the Constitutional Court in 5 lawsuits.
The Constitutional Court unanimously declared the BHP Law unconstitutional.
All the contents of this Law are automatically become 'null' and have no binding legal force.
The Constitutional Court considered the BHP Law had removed the duties and responsibilities of the Government in the field of education.
"With the BHP Law, the 14 Serian Wijatno, Pengelolaan Perguruan Tinggi Secara Efisien, Efektif, dan Ekonomis: Untuk Meningkatkan Mutu Penyelenggaraan Pendidikan dan Mutu Lulusan, (Jakarta: Penerbit Salemba Empat, 2009), p. 30.
15 Id.
formal education mission which is the duty of the government in Indonesia will be carried out by the Government’s Educational Legal Entity (BHPP) and the Regional Government’s Educational Legal Entity (BHPPD)."
However, the 1945 Constitutional made clear that the responsibility of organizing education is mainly given to the State.16 The BHP Law makes BHPP and BHPPD a determinant of educational success.
That results in no guarantee of not achieving national education goals while at the same time creating legal uncertainty.
If BHPP and BHPPD are unable to carry out their duties, they can be bankrupt.
If it is already bankrupt, the state will not assume responsibility.
According to the Constitutional Court, the BHP Law makes national education fully submitted to the market mechanism without any protection at all.
For example, Article 57 letter b of the BHP Law allows a BHP to be declared bankrupt.
The BHP bankruptcy proceedings are subject to Act Number 37 Year 2004 on Bankruptcy and Suspension of Debt Payment Obligations.
For the Constitutional Court, it shows the BHP Law does not provide any protection at all from the threat of bankruptcy.17 The principle of non-profit in the BHP Law is also questionable.
The Court revealed, "That there is a difference between nonprofits and affordable education costs where the latter is a problem in our national education."
The principle of non-profit does not automatically make education cheap for students.
According to 16 Dny, MK Batalkan UU Badan Hukum Pendidikan, (31 March 2010, Hukum Online), accessed at http://www.hukumonline.com/berita/baca/lt4bb 37a39de6cc/mk-batalkan-uu-badan-hukumpendidikan on 17 April 2018 17 Id.
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6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 239 the Constitutional Court, whether or not the cost of education is determined by various factors.
The BHP Law limits the portion of funding from students, a maximum of 1/3 of operational costs.
But unfortunately, the definition of operational costs itself is formulated openly and not limited.
As a result, the number of operational costs will be determined by the variable costs used in the education process.18 The Constitutional Court stated that the BHP Law contradicted the constitution and stated that the Act had no binding legal force.
However, the Constitutional Court did not cancel the article on the autonomy of higher education, namely Article 53 of Act Number 20 year 2003 on the National Education System (Law on National Education System).
The Court believes that as long as the educational legal entity is defined as the function of the education provider which means that an educational institution must be managed by a legal entity, article 53 (1) is still by the corridor of the 1945 Constitution.19 This is what distinguishes Educational Legal Entities from Legal Entity State University (also referred to as PTN-BH).
Act Number 12 Year 2012 on Higher Education (the Higher Education Act) continues to provide the principle of autonomy for tertiary institutions, while still considering the ability of tertiary institutions.
So, not all state universities are legal entities.
Article 62, paragraph (1) and 18 Id.
19 Id.
20 Article 62 Paragraph (1) and (2) of the Law Number 12 in 2012 on Higher Education (State Gazette in 2012 Number 158, Appendix to State Gazette of the Republic of Indonesia Number 5336) 21 News from Dikti’s Website, 11 PTN-BH Didorong Meningkatkan Penelitian dan Inovasi, (4 January 2017, Coordination of Private Universities Region XII), accessed at (2) of the Higher Education Law, states that:20 (1) Universities have the autonomy to manage their institutions as a centre for the implementation of Tridharma Perguruan Tinggi.
(2) The autonomy of Higher Education management as referred to in paragraph (1) shall be carried out by the basis and objectives and capabilities of the Higher Education.
Article 62 paragraph (2) of the Higher Education Law states that the Autonomy of Higher Education Management is carried out by the basis and objectives and abilities of tertiary institutions.
This causes not all state universities to be state legal entities.
Until now, there are eleven Universities that become Legal Entity State Universities (PTN-BH), namely the Bandung Institute of Technology, Bogor Institute of Agriculture, Gadjah Mada University, University of Indonesia, Indonesian University of Education, University of North Sumatra, Airlangga University, Padjajaran University, Diponegoro University, Hasanuddin University, and November 10 Technology Institute.21 Legal Entity State Universities (PTNBH) is a state university established by the Government which is an autonomous public legal entity.22 Legal Entity State Universities (PTN-BH) have authority that is not owned by State University in general, including:23 http://www.kopertis12.or.id/2017/01/05/12-ptnbh-didorong-meningkatkan-penelitian-daninovasi.html on 18 April 2018 22 Article 1 Number (3) of the Government Regulation Number 26 year 2015 on the Form and Mechanism of Funding for Legal Entity State University (State Gazette year 2015 Number 110, Appendix to State Gazette of the Republic of Indonesia Number 5699) 23 Article 25 of the Government Regulation Number 4 year 2014 on the Organization of Brawijaya Law Journal Vol.
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Autonomy in the academic field, namely the offering, changing, and closing of study programs; b.
Autonomy in the field of organizational implementation, namely (1) Determination of organizational structure and work procedures, and (2) Internal control and supervision systems; c. Autonomy in finance, namely (1) Short-term and long-term budget planning and management, (2) Determination of tariffs for each type of education service, (3) Receipt, expenditure, and money management, (4) Making short-term and long-term investments , and (5) Short and long term debt and receivables.
d. Autonomy in the power sector, namely (1) Requirements and Procedures for Accepting Human Resources, and (2) Termination of Human Resources e. Autonomy in the field of facilities and infrastructure, namely the ownership of facilities and infrastructure.
Implementing regulations related to Legal Entity State Universities (PTN-BH) made by the government are Government Regulation Number 26 the Year 2015 on the Form and Mechanism of Legal Entity State University Funding.
The Government Regulation indicates that Legal Entity State Universities (PTN-BH) can have a business entity (enterprise).
Article 11 paragraph (1) states that "Legal Entity State University Funding sourced from other than the state budget and income, might be sourced from a) the community; b) tuition fees; c) management of endowments; d) Legal Higher Education and the Management of Universities (State Gazette the year 2014 Number 16, Appendix to State Gazette of the Republic of Indonesia Number 5500) 24 Article 11 paragraph (1) of the Government Regulation Number 26 year 2015 on the Form Entity State University’s enterprise; e) Collaboration of Tridharma Perguruan Tinggi; f) management of Legal Entity State University's assets; g) regional income and expenditure budget; and h) loans.
"24 The following paragraph states that "The Business owned by Legal Entity State Universities (PTN-BH) as referred to in paragraph (1) letter d is a service supporting the Tridharma Perguruan Tinggi.”25 The problem is, if Legal Entity State Universities (PTN-BH) carries out a business activity, there will be a possibility that the business will suffer losses.
No laws and regulations are governing that matter.
From the background above, the authors are interested in examining the associated losses caused by business entities of state universities as legal entities and their responsibilities.
II.
LEGAL MATERIAL AND METHODS This research was compiled based on normative legal research.
Normative legal research is a legal study that focuses on studies of existing laws and regulations, jurisprudence, and legal doctrines.
The focus of this research is related to the state losses caused by the loss of business entities of the Legal Entity State Universities (PTNBH) and the responsibility of the Legal Entity State Universities (PTN-BH) for losses caused by the activities of the Legal Entity State Universities (PTN-BH)’s Business units.
The approach used in this research is the statutory approach and conceptual approach.
Based on its binding strength, and Mechanism of Funding for Legal Entity State University 25 Article 11 paragraph (1) of the Government Regulation Number 26 the year 2015 on the Form and Mechanism of Funding for Legal Entity State University Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 241 legal materials can be grouped into primary legal materials and secondary legal materials.
The legal material used in this study is the legislation related to the liability of the Legal Entity State University for the Losses of its Enterprise.
The legal material used in this study is in the form of all legal publications that do not include official documents, such as textbooks, journals, and opinions of scholars.
The publication is a clue or explanation of primary legal material.
The technique used for the legal material collection was in the form of the study of literature that is looking for or finding, reading, understanding, and gathering legal materials following the problems examined in this study.
To obtain legal materials that are following the quality used in this study, a search is carried out to find legal materials that are relevant to the legal issues being investigated.
The legal materials that have been obtained were then recorded, edited, studied, and then taken its essence in the form of theories, ideas, concepts, proposals of argumentation, and related legal provisions.
Furthermore, the legal materials were collected and compiled and grouped according to the problem to be examined.
Processing of legal materials was preceded by conducting a selection of legal materials that have been collected, both primary and secondary legal materials.
Then the legal materials are selected and sorted according to the needs that will be used to analyze and explain legal problems.
The analysis was prescriptive, i.e.
analyzing the collected legal materials by linking with the objectives of the law, the values of justice, the validity of the rule of law, legal concepts, and existing legal norms.
The use of prescriptive analysis is expected to find out what the law is and what the norms should be.
III.
RESULT AND DISCUSSION Losses of Legal Entity State Universities’ Enterprises as State’s Losses The main mission of Higher Education is to seek, find, disseminate, and uphold the truth.
In order for this mission to be realized, University as the organizer of Higher Education must be free from any influence, pressure, and contamination such as political power and/or economic power, so that the application of Tridharma Perguruan Tinggi, namely education, research, and community service, can be carried out based on academic freedom and scientific autonomy.
Therefore, Higher Education has autonomy or independence, both academically and non-academically.
If Higher Education autonomy is the nature of higher education, the State is responsible for protecting and guaranteeing that nature through the stipulation of various laws and regulations, including Government Regulations on the Form and Mechanism of Institutional Higher Education Funding, namely Government Regulation Number 26 the Year 2015 on Form and Mechanism of Funding for Legal Entity State Universities.
The Government Regulation on the Form and Mechanism of Funding for Legal Entity State University is mandated by Article 89 paragraph (3) of Law Number 12 the Year 2012 on Higher Education, which states that the provisions regarding the form and mechanism of Funding for Legal Entity State Universities are regulated by Government Regulation.
This government regulation regulates several matters, including: 1.
Source of fund funding; 2.
Mechanism of funding; and 3.
Accountability of Legal Entity State Universities.
Brawijaya Law Journal Vol.
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State’s Revenue and Budget (Article 3 paragraph (1)); 2.
Regional Revenue and Budget (Article 3 paragraph (6)); 3.
Other Sources (Article 3 paragraph (2)).
Other sources as mentioned in Article 3 paragraph (2) of the Government Regulation on the Form and Mechanism of Funding for Legal Entity State Universities consist of: 1.
Community; 2.
Tuition Fee; 3.
Management of endowment fund and Legal Entity State Universities’ enterprises; 4.
The collaboration of Tridharma; 5.
Management of State’s treasure which granted by State government and regional government for the development of universities; and/or 6.
Other legal sources.
In a graphic, the source of funding for Legal Entity State Universities is presented in the Figure Funding for Legal Entity State Universities.
26 Eugenio M. Gonzales, Membentuk dan Mengelola Dana Abadi: Pelajaran dari Asia Tenggara, (Jakarta: Institute of Research, Education, and Figure Funding for Legal Entity State Universities One source of funding for Legal Entity State Universities is from the management of endowment fund and the Legal Entity State Universities’ enterprises, which are classified in one of six other sources.
The definition of the endowment fund is not explained in the Government Regulation on the Form and Mechanism of Funding for Legal Entity State Universities and Higher Education Law.
Eugenio M. Gonzales stated that an endowment fund is a collection of funds managed by an institution for social purposes determined by the donor of funds (donors) and administrators of the institution.
These funds are expected to remain intact forever, for a certain period, or until sufficient assets are collected to carry out the specified program.
The purchasing power of the endowment fund is expected to become greater over time and can provide regular income throughout the life of the institution.26 In many cases, an endowment fund is felt to bring great benefits to the institution because it provides a secure income base, which can partially reduce the pressure to find principal capital, reduce dependence on certain sources of funding, and facilitate Consultation on Economy and Social (LP3ES), 2004), p. 5-6 Brawijaya Law Journal Vol.
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Institutionally, an endowment fund can create a strong feeling that strengthens institutions and all stakeholders, increases concentration to achieve long-term program goals, and maintains program flexibility to achieve these goals.27 Although endowment fund can offer a variety of benefits, each institution needs to consider whether an endowment is indeed the right strategy to meet its financial and social mission needs.
Raising endowments may be too expensive for certain institutions and also time-consuming.
This process requires particular attention and expertise that the institution may not have, both on staff and the board.
If given by another institution, the endowment may be subject to various restrictions and rules that must be met by the recipient institution, which may be difficult to follow continuously.
Moreover, endowments may not immediately meet the organization's expectations for revenue.
Sluggish economies or countries with weak philanthropic cultures can make it difficult to raise endowments.
Besides, in certain situations, it may be difficult to convince potential donors, so we should save for tomorrow when there are so many needs today.
The fact that the endowment promises a tempting convenience but also contains problems, makes the experience in raising and managing the endowment becomes very important to be understood further.28 An example of an endowment fundraiser undertaken by a Legal Entity State University is the University of Indonesia Endowment Fund (Dana Abadi UI).
Dana Abadi UI is a fundraising 27 Id.
28 Id.
program, where the funds collected will be managed (invested) optimally by Bank BNI and the investment returns will be utilized to help the development of education and learning that takes place at UI.
Funds collected from donors will be managed by Bank BNI and part of the proceeds will be submitted to UI to finance educational activities and learning processes, including the development of educational facilities (books, libraries, laboratories, computers, etc.
), financing of physical facilities (buildings and facilities others), scholarships (for high-achieving and / or underprivileged students, teaching staff, employees), and partly for entrants / fund owners.29 In addition to the source of funds originating from the management of endowment funds, Legal Entity State Universities can also obtain income from the Legal Entity State Universities’ enterprises.
Establishing a business entity is one of the autonomy owned by a Legal Entity State Universities, as stated in Article 65 paragraph (3) of Law Number 12 the Year 2012 on Higher Education.
The article states that Legal Entity State Universities as referred to in paragraph (1) have: 1.
Initial capital in form of separate State’s treasury other than land; 2.
Independent management and decision-making process; 3.
A unit that runs accountability and transparency function; 4.
Right to manage the fund in an independent, open, and accountable way; 5.
Authority to recruit and dismiss lecturer and other educational staff; 29 https://www.ui.ac.id/beranda-alumni/danaabadi.html accessed on 2 July 2019 at 16.00 https://www.ui.ac.id/beranda-alumni/dana-abadi.html https://www.ui.ac.id/beranda-alumni/dana-abadi.html Brawijaya Law Journal Vol.
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Authority to establish enterprises and develop endowment fund; and 7.
Authority to offer, organize, and close a study program.
This article gives Legal Entity State Universities the authority to establish business entities/enterprises.
Article 11 paragraph (2) Government Regulation on the Form and Mechanism of Funding for Legal Entity State Universities states that the enterprises owned by Legal Entity State Universities as referred to in paragraph (1) letter d is services that support Tridharma Perguruan Tinggi.
According to the elucidation of Article 11 paragraph (2), services that support Tridharma Perguruan Tinggi are the implementation of activities of which produce education, research, and community service for the purpose of improving the quality and service of Legal Entity State Universities, as well as to obtain additional fund for the Legal Entity State Universities.
The ability to obtain funds is one of the requirements that must be met so that University can obtain a position as a Legal Entity State Universities.
This requirement is regulated in Minister of Education and Culture Regulation Number 88 the Year 2014 on the Change of State Universities into Legal Entities State Universities.
These requirements are regulated in Article 2 paragraph (1) of the Minister of Education and Culture Regulation Number 88 the Year 2014 on the Changing of State Universities into Legal Entity State Universities, which states that the Condition to be met by State University to become Legal Entity State Universities include the level and degree of ability of the university to: 1.
Apply aqualified Tri Dharma Perguruan Tinggi activities; 2.
Run the University’s organization based on good organizational management principles; 3.
Meet the minimum standard of financial feasibility; 4.
Perform social responsibility; and 5.
Take part in the development of the economy.
In point c, the minimum standard of financial feasibility is one of the requirements for State universities to become a Legal Entity State Universities.
Financial feasibility is further elaborated in Article 2 paragraph (4) of the Minister of Education and Culture Regulation Number 88 the Year 2014 on the Change of State Universities into Legal Entities State Universities.
Financial feasibility is assessed from: 1.
Management of finance and asset according to the legislations 2.
The finance report is assessed as Normal without Question for 2 (two) ins in a row; and 3.
Able to raise funds other than from tuition fee from the students.
The ability to raise funds must also be demonstrated in the requirements document that must be met by state universities.
There are 4 (four) documents that become the requirements, namely 1) self-evaluation of the university; 2) Long-term Development Plan as Legal Entity State Universities; 3) Draft Statute for Legal Entity State Universities; 4) Transfer Plan into Legal Entity State Universities.
The ability to raise funds must be demonstrated in document number 2, the Long Term Development Plan as Legal Entity State Universities.
Long-term Development Plan of Legal Entity State Universities as Brawijaya Law Journal Vol.
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The Background that states rationale and context in the transformation from state university into Legal Entity State University based on the result of the university’s self-evaluation; 2.
Mandate, Vision, Mission, dan objectives as a Legal Entity State University; 3.
System the Guarantee the Internal Quality as a Legal Entity State University; 4.
Implementation and development in academic fields that cover Tridharma Perguruan Tinggi in the Legal Entity State University, i.e.
Educational Field, Research Field, and Community Service Field; 5.
Implementation and development of non-academic fields in Legal Entity State Universities, i.e.
Organization and Management Field of the Legal Entity State University, Management and Development of Human Resource Field of the Legal Entity State University; 6.
Implementation and development of Student Affair field in the Legal Entity State Universities, i.e.
intra-curricular and extra-curricular units for students’ activity, student organization, and development of students’ talent and interest.
7.
Accountability system for Legal Entity State Universities; 8.
Risk analysis in the transformation process from state university into Legal Entity State University; and 9.
Long-Term Development Plan Phase and Program’s Performance Indicators.
Point 5 of the Legal Entity State Universities’ Long-Term Development Plan is the organization and development of non-academic fields in the Legal Entity State Universities.
The implementation and development of non-academic fields in Legal Entity State Universities consist of 2 parts, namely the organization and governance of Legal Entity State Universities, and the management and development of Legal Entity State Universities’ resources.
The field of management and development of Legal Entity State Universities’ resources consists of human resources, facility and infrastructure resources, financial resources, and information resources.
Financial resources set condition of financial resources that must be met are 1) short-term and long-term budgets; 2) rates for each type of education service; 3) receipts, expenditures, and financial management; 4) short-term and long-term investments; 5) business unit development; 6) agreements with third parties within the scope of Tridharma Perguruan Tinggi; 7) short-term and long-term loans and receivables; and 8) financial recording and reporting system.
Point 5 of financial resources is the development of business units.
Legal Entity State University has the authority to establish business units and develop endowments.
Business units established by Legal Entity State Universities are the same as business units run by other entities, so there is a possibility of loss.
The question is what if the business entity established by Legal Entity State Universities experience loss?
Are these losses can be classified as state’s losses or not?
The next question is, if a loss occurs, what kind of responsibility should be given to the loss?
Question number two will be explained in the second part of this chapter.
Based on Article 1 paragraph (1) of Act Number 17 the Year 2003 on State Brawijaya Law Journal Vol.
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Based on the Law on State Finance, state finance can be viewed from four sides.
Those sides are the object side, the subject side, the process side, and the goal side.
The explanation is as follows30: 1.
On the object side, what is meant by state finance includes all state rights and obligations that can be valued in money, including policies and activities in the fiscal, monetary, and management of separated state assets, as well as everything in the form of money, or in the form of goods that can be claimed as state’s property in connection with the implementation of the above mentioned rights and obligations.
2.
On the subject side, what is meant by state finance is all the objects as mentioned above which are owned by the state, and / or are controlled by the central government, regional governments, state / regional companies, and other bodies related to state finance; 3.
In the process side, state finance covers the entire set of activities related to object management as mentioned above, starting from policy formulation and decision making to accountability; 4.
In the objective side, state finance includes all policies, activities, and legal relations relating to the ownership and / or control of objects as mentioned 30 Ardeno Kurniawan, Korupsi di Indonesia: Keuangan Negara, Birokrasi dan Pengendalian above in the context of the administration of state government.
Article 2 of the Act on State Finances explains the types of state finances.
Types of state finances include31: 1.
The right of the state to collect taxes, issue and circulate money, and enforce loans; 2.
The obligation of the state to carry out public service tasks of the government of the country and pay bills of third parties; 3.
State revenue; 4.
State expenditure; 5.
Regional income; 6.
Regional expenditure.
7.
State assets / regional assets that are managed by themselves or other parties in the form of money, securities, receivables, goods, and other rights that can be valued with money, including state assets that are separated from state / regional companies.
One form of state wealth managed by other parties is in the form of social grants and assistance provided by the government to the community; 8.
A wealth of other parties controlled by the government in the context of carrying out governmental duties and / or public interests.
The wealth of other parties stipulated in this Law does not constitute state money but becomes part of state finances; 9.
A wealth of other parties obtained by using facilities provided by the government.
The other party's wealth in question is including assets managed by other people or entities based on government policy, foundations within the ministry of state/institution, or state Intern.
Mewujudkan Indonesia Bebas Dari Korupsi.
(Yogyakarta: BPFE, 2015), p. 91-92 31 Id., p. 92-93 Brawijaya Law Journal Vol.
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The wealth of the other party referred to in this term does not mean that the other party's wealth is automatically part of the property of the state, but the wealth of other parties obtained using facilities provided by the government must be managed and accounted for based on governance principles state finances.
The definition of state finance in the State Finance Act is different from the definition in Act Number 31 the Year 1999 on Corruption Crimes.
The Corruption Crime Act states that state finances are all state assets in whatever form are separated or are not separated including all forms of state assets and all rights and obligations arising from32: 1.
Being in control, management, and accountability of state agency officials, both at the central and regional levels; 2.
Being in control, management, and accountability of the State-Owned Public Entity / Regional-Owned Public Entity, foundations, legal entities and companies that include state capital, or companies that include third-party capital based on state agreements.
Even though the definition of state finance in the two Laws looks different, actually both have similarities.
These equations include: 1.
Both of these laws regulate the rights and obligations of the state.
The intended state right is in the form of state revenue in the form of the right to collect taxes and the state's obligation to pay third party bills (the Law on State Finance).
The rights and obligations of the state to collect taxes and pay third party bills are 32 Id., p. 94 the rights and obligations that are in the possession, management, and accountability of state agency officials (Corruption Crime Act).
The state’s property which is in the possession, management, and accountability of state agency officials, both at the central and regional levels (the Corruption Act).
State’s assets separated in-state companies / regional companies (Law on State Finance) are state’s assets under the control, management, and accountability of State-Owned Public Bodies and Regionally-Owned Public Bodies (Corruption Crime Act).
2.
State assets managed by other people or bodies based on government policy, foundations within the state ministry/institution (Corruption Crimes Act) which obtained using facilities provided by the government (Law on State Finance).
Article 65 paragraph (3) of Act Number 12 the Year 2012 on Higher Education states that Legal Entity State University as referred to in paragraph (1) possesses: 1.
Initial assets in the form of separated state’s assets other than land; 2.
Independent governance and decision making process; 3.
Units that carry out the functions of accountability and transparency; 4.
The right to manage funds independently, transparently, and accountably; 5.
The authority to appoint and dismiss Lecturers and educational staff by themselves; 6.
The authority to establish a business entity and develop an endowment; and Brawijaya Law Journal Vol.
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Authority to offer, organize, and close Study Programs.
Point an of the article states that the initial assets owned by state legal entities are state separated assets other than land.
Regarding exempted land, it is regulated in Article 19 paragraph (3) Government Regulation Number 26 in 2015 on the Form and Mechanism of Funding for Legal Entity State University, which states that "Assets in the form of land under the control of Legal Entity State University are obtained from the revenue budget and state expenditure is state’s property."
Furthermore, in paragraph (6), it is stated that "The results of asset management as referred to in paragraph (2) are sources of Legal Entity State University’s revenue.” A Legal Entity established by the Government with the status of separated state assets implies that since the separation of part of the State's assets into Legal Entity assets, there has been a juridical transformation of public finances into private finances that are fully subject to civil law.33 State capital participation in a corporation's status is an ordinary investment with the same legal status as an investment by another party.
The purpose of the separation is to make a clear demarcation between public responsibility and corporate responsibility.34 Related to state finances, the Constitutional Court in the Decision of the Constitutional Court Number 48 / PUUXI / 2013 states that State-Owned Legal Entities of Higher Education (the terminology of Legal Entity State University), state-owned enterprises (BUMN), regional owned 33 Arifin P. Soeria Atmadja, Mekanisme Pengelolaan Keuangan Negara Indonesia: Suatu Tinjauan Yuridis, (Jakarta: Gramedia, 1985) in Legal Analysis and Evaluation Team on the Traffic of Foreign Exchange and Exchange enterprises (BUMD), or another name, or more specifically, which carries out constitutional mandate in Article 31, Article 32, and Article 33 of the 1945 Constitution is as an extension of the state in carrying out part of the functions of the state to achieve the objectives of the state, namely to educate the life of the nation, or advance the general welfare.
Therefore, from the perspective of a legal entity's capital, or another similar name, which carries out part of the function of the state, the financial capital which is partly or wholly comes from state finance.
From this perspective and the function of the intended legal entity cannot be fully considered as a private legal entity.
Regarding the constitutional provisions, the Court has interpreted the Court Decision Number 103 / PUU-X / 2012, dated December 12, 2013, in which the Court considered, among others, "According to the Court, although Legal Entity State University is a legal entity, but as reflected in the a quo Law, Legal Entity State University is not entirely the same as a legal entity in the concept of civil law.
If a legal entity in the concept of civil law is a truly autonomous and independent entity that is only subject to the provisions of the Act and its internal regulations, then Legal Entity State University in addition is an autonomous entity, but also a public legal entity that is obliged to carry out its duties and responsibilities responsible for the state in the administration of education in higher education institutions.
This means that Legal Entity State University is a state agency that is still under state’s control in Value System, Report by Legal Analysis and Evaluation Team on the Traffic of Foreign Exchange and Exchange Value System, (Jakarta, National Legal Coaching Agency, 2009), p. 55 34 Id.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 249 terms of funding and financing, even though Legal Entity State University is a legal entity, the state is still required to allocate funds for operations, lecturers, and education personnel, as well as investment, and development, also financial support for the administration of higher education [vide Article 89 paragraph (1) and (2) of Act 12/2012].
As a form of state control over the cost of education borne by students, the Government establishes a standard unit of operational costs for higher education periodically used as a basis by state universities to determine the costs borne by students [vide Article 88 paragraph (1) and paragraph (3) Act 12/2012].” [Vide Court Decision, Number 103 / PUU-X / 2012, dated 12 December 2013, paragraph [3.16], pages 215-217]; However, it should also be considered that the provisions of private law also apply to Legal Entity State University’s business units, so their management must be following the management of business law.
Management of business law is subject to the rules of good business management (good corporate governance) such as the principle of prudence, accountability, transparency, and responsiveness.
Business Managers are equipped with fiduciary duties (caring, ability, and honesty), the duty of care (prudence to avoid negligence), and duties to obey statutory duties.
Other important doctrines are business judgment rulings teaches that the directors (management) of a corporation is not responsible for losses arising from an act of decision making if the action is based on good faith and prudence.35 35 Legal Analysis and Evaluation Team on the Traffic of Foreign Exchange and Exchange Value System, Report by Legal Analysis and Evaluation Team on the Traffic of Foreign State Enterprises (BUMN) or other Legal Entity established for business interests in its operations is subject to the mindset of civil logic.
The civil logic referred to among other things is that business contracts are valid as a law for the parties, good faith is considered to exist among the parties until proven otherwise, and if a promised achievement cannot be fulfilled, it will be subject to default with various alternatives to fulfil it.
Business logic is prudence, partnership, cooperation, and collaboration.
For example, a business partner that has difficulty making payments and is in debt, the settlement can be in the form of delays in debt payment obligations, hair cut (partial repayment), conversion of debt to equity participation, and so on.
If there is a business dispute, the solution is attempted by mediation, and at the most, with arbitration as an alternative dispute resolution that provides a win-win solution.
Criminal solutions in business law are only a last resort (ultimum remedium) that will not be taken if not forced.36 The above explanation does not mean that Legal Entity State University’s business units will be free and immune from criminal liability and prosecution.
Criminal offences still threaten Legal Entity State University that brings losses to the businesses they manage.
But it must be seen if the cause is purely criminal, such as fraud, bribery, acts that exceed the authority, and other corporate crimes or not.
However, if the Legal Entity State University have worked carefully, with careful business considerations (which could be the results deviated from what was expected), good faith, and in the corridor of good merchant Exchange and Exchange Value System, (Jakarta, National Legal Coaching Agency, 2009) 36 Id., p. 58 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 250 | Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities... habits (lex mercantoria), which are not against the law, then basically Legal Entity State University must be protected and have immunity like diplomatic immunity or parliamentary immunity in carrying out its duties.
From the explanation above, it can be concluded that not every business loss that arises (business loss) is classified as a state loss.
If the occurrences of state financial losses are not caused by intentional acts against the law or abuse of authority, then these are not classified as state losses.
Responsibility for Losses Caused by Legal Entity State University‘s Business Unit’s Activity In the previous section, it was concluded that not every arising business loss is classified as a state loss.
If the occurrence of state financial losses that occur are not caused by intentional acts against the law or abuse of authority, then these are not classified as state losses.
The provisions of private law also apply to enterprises owned by Legal Entity State University.
The implication is, the management of Legal Entity State University must be following with the management of business law.
Management of business law is subject to the rules of good business management (good corporate governance) such as the principle of prudence, accountability, transparency, and responsiveness.
Business Managers are equipped with fiduciary duties (caring, ability, and honesty), the duty of care (caution to avoid negligence), and duties to obey statutory duties.
Other important doctrines are business judgment rules.
which teaches that the directors 37 Legal Analysis and Evaluation Team on the Traffic of Foreign Exchange and Exchange Value System, Report by Legal Analysis and (management) of a corporation is not responsible for losses arising from an act of decision making if the action is based on good faith and prudence.37 The business judgment rule doctrine does not apply if a violation of the provisions of Private law is found.
If so, then Legal Entity State University can be held liable for the loss.
About the management of state finances, the injured party, which in this case is the state, can take 3 (three) laws to hold them to account, i.e.
the Criminal, Civil, or State Administration laws.
a.
Criminal Liability Accountability through criminal path must go through a criminal justice process.
Criminal Justice is a process in which several law enforcement agencies and their officials work together.
Criminal justice activity is a gradual activity starting from the investigation, prosecution, examination at the trial, and ends with the implementation of the decision by the judicial institution.
This activity is a series of integrated activities between the Police, Attorney General's Office, the Corruption Eradication Commission, and the Judiciary (Judge), as well as correctional officers, so that this criminal justice can be said to be a system known as the criminal justice system.
This means that liability through criminal path is carried out in an integrated and continuous manner, from the confiscation of assets of the perpetrators, together with the threat of imprisonment, so that if the criminal verdict is severed, all assets belonging to the perpetrator will be confiscated and sold to be reimbursed to the State’s treasury.
Evaluation Team on the Traffic of Foreign Exchange and Exchange Value System, (Jakarta, National Legal Coaching Agency, 2009), p. Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 251 Based on the provisions of Article 2 paragraph (1) and Article 3 of Act Number 31 of 1999 juncto Act Article 20 of 2001, those included in the elements of criminal acts of corruption include: 1.
Everyone, including corporations; 2.
Committing acts against the law; 3.
Enrich him/herself; and 4.
Detrimental to the country's finances.
Article 2 paragraph (1) of Act Number 31 the Year 1999 juncto Act Number 20 the Year 2001 states that: "Everyone who unlawfully commits acts of enriching oneself or another person or a corporation that can harm the country's finances or the country's economy ..." Article 3 of Act Number 31 the Year 1999 juncto Act Number 20 the Year 2001 states that: "Anyone who aims to benefit himself or someone else or a corporation, misuse the authority, opportunity, or means available to him because of his position or authority that can harm the country's finances or the country's economy ..." The legal sanctions that can be imposed on perpetrators of corruption are in the form of imprisonment and fines (regulated in Article 5, Article 6, Article 7, Article 8, Article 9, Article 10, Article 11, Article 12A, Article 12B, and Article 12C of Act Number 31 the Year 1991 in conjunction with Act Number 20 the Year 2001).38 b.
Civil Liability Indonesian BW (Burgerlijk Wetboek / Code of Civil Law) insists that every act 38 Aziz Syamsuddin, Tindak Pidana Khusus (Jakarta: Sinar Grafika, 2011), p. 17 that violates the law, which brings harm to others, obliges the person who because of his mistake that issue the loss, compensates for the loss (Article 1365).
Everyone is responsible not only for losses caused by his actions but also for losses caused by negligence or carelessness (Article 1366).
This "Acts against the Law" is intended, of course, not only to individuals but also Legal Entities, so that individuals and Legal Entities can be held accountable by the State when carrying out activities or actions in the management of state finances which are detrimental to the state.
The state as the injured party can file a claim for compensation through a civil suit to the District Court.
The lawsuit that applies, in this case, is the same as the lawsuit in general.
The state is filing a lawsuit is represented by the State Attorney.
Law Number 31 the Year 1999 in conjunction with Act Number 20 the Year 2001 on Eradication of Corruption Acts regulates strictly the use of civil instruments, among others, in Articles 32, 33, 34, of Act Number31 the Year 1999, and Article 38 C of Act Number 20 the Year 2001.
Civil case, that arises related to corruption cases with the use of civil instruments as regulated in Article 32 paragraph (1) of Act Number 31 the Year 1999, is that if an investigator handles a case that has clearly had a state financial loss, but there is not enough evidence to prove the criminal elements of corruption, then the investigator stops the investigation.
In this case, the investigator submits the case file of the results of his investigation to the State Attorney or the aggrieved agency, to make a civil suit against the former suspect who Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 252 | Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities... has harmed the state's finances.
Some reasons for the use of civil law instruments in-state losses are first, following Article 33 and Article 34 of Act Number 31 the Year 1999 wherein the investigation of corruption cases there is a possibility of the death of the suspect, whereas there has been a state financial loss.
The investigation had to be stopped and the investigator handed over the results of his investigation to the State Attorney or the aggrieved agency, to make a civil suit against the heirs of the suspect.
If the Defendant dies during an examination at a court hearing, while the loss in the state’s finance is real, then the public prosecutor submits a copy of the minutes of proceedings to the State Attorney or the injured institution for a civil suit against the defendant's heir.
Second, Article 38 C of Law Number 20 of 2001 that after the court's decision obtained permanent legal force, it is known that there are still assets belonging to corrupt convicts who have not been subject to seizure (while in court the defendant cannot prove that the assets were obtained not by mean of corruption), then the state can make a civil suit against the convicted and/or his/her heirs.
In this case, the aggrieved agency may authorize the State Attorney or its legal counsel to represent it.
The use of civil law instruments, in fact, has not been carried out this much because of many obstacles, such as the settlement time to completely solve the case by a court decision that has legal force can take quite a long time (years).
For this reason, the Law on Corruption requires that the examination of corruption crimes cases be given priority, while civil lawsuits relating to corruption cases are not so 39 Hendra Karianga, Pertanggungjawaban Kerugian Negara dalam Pengelolaan Keuangan prioritized.
Another obstacle is that there is a possibility that the defendant will sue the state and there is a possibility that the State will lose so that the State must compensate the plaintiff if the State loses.39 c. Accountability in State Administrative One element of the existence of a criminal act of corruption committed by an individual or legal entity is that the committed act can be detrimental to the State's finances or the State's economy (Article 2 paragraph (1) juncto Article 3 of Law Number 20 of 2001), whereas what is meant by State’s financial loss is the amount of losses that can be calculated based on the findings of the authorized agency, which can come from the Supreme Audit Agency (BPK), the National Audit and Development Inspection Agency (BPKP), and the Inspectorate at the central or regional level, or a designated public accountant.
The occurrence of state losses in this case certainly gives authority to the State to be able to hold accountable not to the perpetrators of corruption directly, but from the official in charge of managing finances.
The Act Number 17 the Year 2003 on State Finance, in its explanation, states that those who are authorized to receive, keep, and paid or hand over money, valued letters, or State property are personally responsible for all deficiencies that occur in their administration.
In connection with this responsibility in finances, Law Number 1 the Year 2004 on the State Treasury regulates the issue in Article 53 paragraphs 1 to 4 and Article 54 paragraphs 1 and 2.
Daerah, (Jurnal Pendidikan, Volume 16, No 1, January 2018), p. 40-41 Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities...| 253 Therefore, the responsibility for returning the compensation of state finances as determined is to avoid the occurrence of state losses due to unlawful acts, either on purpose or due to negligence of an official, so that the guilty party who has caused state financial losses must replace them to ensure the state finances recover from the loss caused by the abuse of power.
As a result of the abuse of power or authority (exes depavoir) which causes acts of corruption, the loss to state finances is significant.
That is why the Law requires that leaders of State ministries or institutions and heads of regional work units immediately make claims for state compensation after knowing that their institutions have been disadvantaged through two means.
The first is Compensation Claims (TGR) to Civil Servants rather than to treasurers/other officials who for committing acts against the law, both intentionally or negligently, resulting in State losses, not in the form of a lack of treasury, and the competency of burdening lies with the Minister or Head of the concerned Institution.
Second, the Treasury Claims (TP) imposed on the Treasurer as a result of unlawful acts, both by intentional or negligent, that have resulted in treasury deficiencies, where the competence of burdening the compensation lies on the BPK.40 IV.
CONCLUSION AND SUGGESTION The loss experienced by business entities owned by Legal Entity State University can be categorized as state losses if the losses occur due to intentional or unlawful acts.
If the loss is caused purely by 40 Id., p. 41-43. a business loss, it cannot be categorized as a state loss.
In the other hand, liability for damages caused by the activities of the Legal Entity State University’s business unit can be carried out in three ways, namely criminal liability, civil liability, and accountability in the state administration.
REFERENCES Book Ardeno Kurniawan, Korupsi di Indonesia: Keuangan Negara, Birokrasi dan Pengendalian Intern.
Mewujudkan Indonesia Bebas Dari Korupsi (Yogyakarta: BPFE, 2015) Arifin P. Soeria Atmadja, Mekanisme Pengelolaan Keuangan Negara Indonesia: Suatu Tinjauan Yuridis (Jakarta: Gramedia, 1985) Aziz Syamsuddin, Tindak Pidana Khusus (Jakarta: Sinar Grafika, 2011) Eugenio M. Gonzales, Membentuk dan Mengelola Dana Abadi: Pelajaran dari Asia Tenggara (Jakarta: Lembaga Penelitian, Pendidikan, dan Penerangan Ekonomi dan Sosial (LP3ES), 2004) Jimly Asshiddiqie, Konstitusi Bernegara: Praksis Kenegaraan Bermartabat dan Demokratis (Malang: Setara Press, 2015) Mohammad Faisal Amir, Manajemen Kinerja Perguruan Tinggi (Jakarta: Mitra Wacana Media, 2016) Philipus M. Hadjon dkk., Pengantar Hukum Administrasi Indonesia (Introduction to The Indonesian Administrative Law) (Yogyakarta: Gadjah Mada University Press, 2008) Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 254 | Hadiyantina, Ramadhan State Regulation on Business Entities Owned by State Universities... Ridwan, Tiga Dimensi Hukum Administrasi dan Peradilan Administrasi, (Yogyakarta: FH UII Press, 2009) Serian Wijatno, Pengelolaan Perguruan Tinggi Secara Efisien, Efektif, dan Ekonomis: Untuk Meningkatkan Mutu Penyelenggaraan Pendidikan dan Mutu Lulusan (Jakarta: Penerbit Salemba Empat, 2009) Tim Analisa dan Evaluasi Hukum tentang Lalulintas Devisa dan Sistem Nilai Tukar, Laporan Tim Analisa dan Evaluasi Hukum tentang Lalulintas Devisa dan Sistem Nilai Tukar (Jakarta: Badan Pembinaan Hukum Nasional, 2009) Journal Hendra Karianga, Pertanggungjawaban Kerugian Negara dalam Pengelolaan Keuangan Daerah, Jurnal Pendidikan, Volume 16, No 1, Januri 2018 Muhammad Rakhmat, 2014, Hukum Administrasi Negara Indonesia, Jurnal Universitas Majalengka, dari jurnal.unma.ac.id/index.php/RBJ/arti cle/download/531/495 Acts Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 Undang-Undang Nomor 20 Tahun 2013 tentang Sistem Pendidikan Nasional (Lembaran Negara Tahun 2013 Nomor 132, Tambahan Lembaran Negara Republik Indonesia Nomor 4301) Undang-Undang Nomor 12 Tahun 2012 tentang Pendidikan Tinggi (Lembaran Negara Tahun 2012 Nomor 158, Tambahan Lembaran Negara Republik Indonesia Nomor 5336) Peraturan Pemerintah Nomor 26 Tahun 2015 tentang Bentuk dan Mekanisme Pendanaan Perguruan Tinggi Negeri Badan Hukum (Lembaran Negara Tahun 2015 Nomor 110, Tambahan Lembaran Negara Republik Indonesia Nomor 5699) Peraturan Pemerintah Nomor 4 Tahun 2014 tentang Penyelenggaraan Pendidikan Tinggi dan Pengelolaan Perguruan Tinggi (Lembaran Negara Tahun 2014 Nomor 16, Tambahan Lembaran Negara Republik Indonesia Nomor 5500) Internet Materials Berita Web Dikti, 11 PTN-BH Didorong Meningkatkan Penelitian dan Inovasi, Koordinasi Perguruan Tinggi Swasta Wilayah XII (4 Januari 2017) <http://www.kopertis12.or.id/2017/0 1/05/12-ptn-bh-didorongmeningkatkan-penelitian-daninovasi.html> Dny, MK Batalkan UU Badan Hukum Pendidikan, Hukum Online (31 Maret 2010) <http://www.hukumonline.com/berit a/baca/lt4bb37a39de6cc/mkbatalkan-uu-badan-hukumpendidikan> Universitas Indonesia, Dana Abadi <https://www.ui.ac.id/berandaalumni/dana-abadi.html> http://www.hukumonline.com/berita/baca/lt4bb37a39de6cc/mk-batalkan-uu-badan-hukum-pendidikan http://www.hukumonline.com/berita/baca/lt4bb37a39de6cc/mk-batalkan-uu-badan-hukum-pendidikan http://www.hukumonline.com/berita/baca/lt4bb37a39de6cc/mk-batalkan-uu-badan-hukum-pendidikan http://www.hukumonline.com/berita/baca/lt4bb37a39de6cc/mk-batalkan-uu-badan-hukum-pendidikan https://www.ui.ac.id/beranda-alumni/dana-abadi.html https://www.ui.ac.id/beranda-alumni/dana-abadi.html
DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.02 | 141 Access to Justice through Legal Aid in Nigeria: An Exposition on Some Salient Features of the Legal Aid Act Akintunde Abidemi Adebayoa, Anthonia Omosefe Ugoweb a Faculty of Law, Adekunle Ajasin University, Akungba-Akoko Email: akintunde_adebayo@yahoo.co.uk b University of Dundee, UK Email: anthonia_ugo@yahoo.com (or) ugowe.ao@unilorin.edu.ng Submitted : 2019-03-01 | Accepted : 2019-10-08 Abstract: According to Black’s Law Dictionary, justice is the fair and proper administration of law.
Similarly, access to justice is the ability to make use of the courts and other relevant institutions to efficiently protect and enforce rights.
Access to justice is imperative in every society.
People will access justice only if the proper situation creates.
In a bid, to remove this major barrier in accessing justice, the Legal Aid Council of Nigeria was established in 1976.
The concept of legal aid means the provision of free legal services to the indigent and underprivileged members of the society.
Its importance and cannot be overemphasized particularly considering the level of illiteracy and poverty which are considered on the high side in Nigeria.
Hence, in 2011, the Legal Aid Act 2011 was enacted.
The birth of the Act repealed the old Act.
This article analyses 3ethe provisions of both Acts with emphasis on the innovations of the new Act to promote access to justice and concludes with recommendations.
Concerning the Council, it finds that there is a need for better funding and engagement of more salaried lawyers in order to enable it to carry out its functions as the Council is grappling with the challenge of underfunding and recruitment of more hands to work towards the achievement of its set objectives, among others.
Keywords: access to justice; justice; legal aid council; indigents; pro bono.
I.
INTRODUCTION “Justice is a human need while access to justice is a human right.”1 According to Black’s Law Dictionary, justice is the fair and proper administration of laws.2 In the 1 C.O.
Oba, ‘Third Party Litigation Funding and Access to Civil Litigation: Prospects and Challenges in Nigeria’ (2013) 23(2) African Journal Of Clinical Legal Education And Access To Justice.
same vein, access to justice entails the use of courts and other legal institutions in the protection of rights and the pursuance of claims of members of society.3 As human beings interact with one another, there are 2 B.A.
Garner (ed.
), Black’s Law Dictionary (9th Edn.)
(Thompson-West, New York), 942, 2009.
3 E. Wanyama, ‘Unpacking the Dialectics of Accessing Justice through Legal Aid in East Africa: An Overview of the Constitutions of Uganda and Kenya’ (2013) 59(2) African Journal Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 142 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... bound to be disputes and conflicts.
Sometimes, conflicts may deteriorate to the extent of the persons or one person approaching the courts to file legal actions.
Other times, conflicts may be resolved amicably without recourse to the court of law.
Still, the fact remains that access to justice would only be guaranteed in a society where people can enforce and protect their rights.4 It is a known fact that accessing justice by a vast majority of members of the society could be very difficult due to reasons such as ignorance, illiteracy, and lack of financial strength to pay for the services of a lawyer to either sue on their behalf or to defend them.5 Hence, the evolvement of the legal aid scheme in Nigeria.
The primary aim of the scheme is the provision of pro bono legal services including litigation, legal advice, and alternative dispute resolution, among others to members of the society.6 II.
LEGAL MATERIALS AND METHODS This paper begins with a brief description of access to justice, history of the Legal Aid Council of Nigeria, the salient provisions of the repealed Legal Aid Act 1976 and the extant Act of 2011 on access to justice.
It goes ahead to examine the operations of the Legal Aid Council in Nigeria particularly when it comes to the promotion of access to justice and provision of pro bono legal and quasi-legal services indigent members of the society access and Of Clinical Legal Educastion And Access To Justice.
4 M.M Barry, ‘Clinical Legal Education in the Law University: Goals and Challenges’, (2007) International Journal Of Legal Education, pp 2750 5 Ibid.
6 Legal Aid Council of Nigeria, (2 July 2019), <http://www.legalaidcouncil.gov.ng> based on the conclusion, useful suggestions were made.
III.
RESULTS AND DISCUSSION Brief History and Operation of the Legal Aid Council of Nigeria (LAC) The concept of legal aid in Nigeria dates back to around 1961 when the then Chief Justice of Nigeria, Adetokunbo Ademola observed the inadequacy of the right to a fair hearing.
He observed the plenary of the Africa Conference on the Rule of Law in Lagos, Nigeria.7 Subsequently, a Bill titled ‘Legal Aid and Advice Act 1961’ was sponsored by T.O Elias, the AttorneyGeneral at the time was for the establishment of legal aid in Nigeria.8 The primary aim of the Bill was to establish a government agency that will be saddled with the responsibility of providing legal aid to low-income earners who ordinarily cannot pay for the services of a lawyer for the pursuance of a legitimate claim, protection of their rights or obtaining of a relief.
The passing of the Bill into law was truncated by the Nigerian civil war from 1967 to 1970.9 After the war, the establishment of the Nigerian Legal Aid Association (NLAA) took place on the 6th of February 1974.10 The Association consisted of lawyers concerned about providing legal aid to poor Nigerians.11 Subsequently, branches of the association sprang up in states like Lagos, Plateau, Oyo and Cross Rivers.12 The association enjoyed support and cooperation from the Bench at both the 7 A historical Profile of the Legal Aid Council of Nigeria, (14 February 2019), <http://www.legalaidcouncil.gov.ng/index.php/en /about-us/profile.> 8 Ibid.
9 Ibid.
10 Ibid.
11 Ibid.
12 Ibid.
http://www.legalaidcouncil.gov.ng/ http://www.legalaidcouncil.gov.ng/index.php/en/about-us/profile.%3e http://www.legalaidcouncil.gov.ng/index.php/en/about-us/profile.%3e Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 143 national level as well as state branches level.
Of particular note was the support of important jurists like Mohammed Bello, T.O Elias, G.S Sowemimo, M.O Balonwu, Ayo Irikefe, Dan Ibekwe, and S.M.A Belgore.13 Over time, the efforts and activities of the association led to the promulgation of the Legal Aid Decree or Legal Aid Act no.
56 of 1976 on 10th November 1976.14 It is important to state that the birth of this Decree marked the formal introduction of the legal aid scheme in Nigeria.15 According to section 19 (1) of the Act, the Legal Aid Act was to come into force on such a day as the Attorney-General may, by order appoint.16 Consequently, Augustine Nnamani who was then the Attorney General of the Federation ordered the Legal Aid Act into force, on the 2nd May 1977.
Therefore, the first Legal Aid Council (hereinafter referred to as the Council) was established by with the provisions of the Legal Aid Act.17 It can, therefore, be said that the sole reason for the establishment of the Legal Aid Council was to avail the underprivileged and indigent persons in the society in need of legal assistance and could not afford it, pro bono legal service.
Of particular interest were: women; children; elderly persons; persons with disabilities, among others.
Most of these persons live in biting poverty and are extremely vulnerable to human rights abuses.18 This article appraises the repealed Legal Aid Act of 1976 and the new Act of 201119 vis-à-vis access to justice through the Council in Nigeria.
13 Ibid 14 Ibid.
15 Ibid.
16 Ibid.
17 Ibid.
18 Wanyama, above n. 3, at 59-72.
19 The Legal Aid Act 2011.
The Legal Aid Act of 1976 The 1976 Act provided for the establishment of the Legal Aid Council in section 1.
It went further by for the composition of the Governing Board of the Council.20 The membership of the Board consisted of a chairman who was appointed by the President of the Federal Republic and fourteen (14) members namely, the Representative of the Attorney General of the Federation, the Representative of the Federal Ministry of Finance, the Representative of the National Youth Service Corp and the Representative of the Inspector General of Police.21 Also, it had four (4) representatives of the Nigerian Bar Association, the Director-General of the Legal Aid Council and five (5) other persons to be appointed by the President of the Federal Republic of Nigeria to represent various other interests.22 The chairman of the board was to hold office for three (3) years and the appointment shall be subject to renewal for another three (3) years period.23 Similarly, other members of the Board shall also hold their office for three (3) years and the appointment shall be renewable for a further three (3) years period.24 The Director-General of the Council shall be appointed by the President of the Federal Republic on the recommendation of the Attorney General of the Federation.25 The Director-General shall be saddled mainly with the responsibility of running the everyday affairs of the Council and the person shall be a legal practitioner of at least 20 The Legal Aid Act 1976, Cap L9, Laws of the Federation of Nigeria, 2004, s. 2.
21 Ibid.
22 Ibid.
23 The Legal Aid Act 1976, above n 20, first schedule, s. 1 (1) – (2) and s. 2.
24 Ibid.
25 Ibid, at s. 3 (1).
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 144 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... ten (10) years standing.
26 In the same vein, to ease the operation of the Council, it was empowered to appoint other legal and nonlegal supporting staff to work in the Council nationwide and their appointment was subject to the conditions of service in the Federal Civil Service Commission.27 Also important is the pension ability of service in the Council.
Therefore, the Director-General and other members of staff of the Council were entitled to pensions, gratuities and other retirement benefits as enjoyed by other persons in public service in the country.28 In the bid to make the services of the Council accessible to persons at the grassroots, the Act provided for the establishment of state offices, subject to the approval of the President of the Federal Republic.29 The areas of coverage of legal aid services included both criminal and civil matters and stated in the second schedule to the Act thus: a.
Murder (also known as culpable homicide, punishable with death); b. Manslaughter (also known as culpable homicide, not punishable with death); c. Malicious or willful bodily harm; d. Assault occasioning actual bodily harm and common assault.
Others are affray, rape, and stealing.30 For civil matters, they were civil claims in respect of accidents and civil claims in respect of fundamental human rights enforcement.31 For the funding of the Council, the Act provided for the Legal Aid Fund.32 The fund 26 Ibid, at s. 3 (2).
27 Ibid, at s. 3 (4) and (5).
28 Ibid, at s. 4.
29 Ibid, at s. 5 and 6.
30 Ibid, at s. 7 and the second schedule to the Act.
31 Ibid.
32 Ibid, at s. 8.
33 Ibid, at s. 8 (a).
34 Ibid, at s. 8 (a) and (b).
received regular payments from the federal and state governments.33 In addition to that, it also received monies by way of contributions under the Act as well as gifts and testamentary dispositions from philanthropic organizations and individuals.34 However, the Council prohibited from accepting gifts from any organizations or individuals with conditions inconsistent with the objectives of the Council.35 In the area of entitlement and access to legal aid, the 1976 Act provided that legal aid shall be granted to a person whose income does not exceed N5, 000.00 (five thousand naira) per annum.36 However, subject to the regulation and approval of the President of the Federal Republic, it might also be granted on a contributory basis to an individual whose income exceeded N 5,000.00 (five thousand naira) per annum.37 Also, the rules of courts on payment of fees and costs did not apply to anyone granted legal aid.38 In ascertaining the means of applicants for grant of legal aid, the Council considered income, personal and real properties.39 The Council also made use of private legal practitioners in the discharge of its duties.40 The concerned practitioners were registered with the Council and constituted into different panels which shall be for diverse specific purposes.41 In situations where the services of a legal practitioner were not gratuitous, the legal practitioner was paid from the Legal Aid Fund and no payment was to be taken from the person granted legal aid.42 Similarly, the Council 35 Ibid, at s. 11.
36 Ibid, at s. 9 (1).
37 Ibid, at s. 9 (2).
38 Ibid, at s. 9 (4) and (5).
39 Ibid, at s. 9.
40 Ibid, at s. 13.
41 Ibid.
42 Ibid.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 145 also made use of legal practitioners undertaking the compulsory National Youth Service Corp for its services.43 The services of such young legal practitioners were free and no payment made by the Council to them.44 The penalty for giving of false information in order to receive legal aid was N200 (two hundred naira) fine or imprisonment for a maximum period of six (6) months or both.45 For the sake of accountability and to be able to adequately measure the productivity of the Council, the 1976 Act provided for the rendering of the annual report to the President of the Federal Republic through the Attorney-General of the Federation.46 The Attorney-General made regulations for the proper carrying out of the functions of the Council.47 5.
The Legal Aid Act of 2011 In 2011, the Legal Aid Act was amended.
The amendment repealed the old Act, which is, the Legal Aid Act, and Cap.L9 Laws of the Federation of Nigeria 2004.
According to section 1 (1) of the new Act, the Legal Aid Council was established to provide legal aid and access to justice to the less privileged members of the society.48 The Council is a body corporate with the ability to sue and be sued.
The Council has a responsibility to provide access to justice, legal aid and advice.
It comprises of the Governing Board that is, the Chairman and members; the Director-General as well as other members of staff (legal and nonlegal).49 Also, the qualification and membership of the Governing Board as provided for in the 43 Ibid, at s. 14.
44 Ibid.
45 Ibid, at s. 16.
46 Ibid, at s. 17.
47 Ibid, at s. 18.
48 The Legal Aid Act 2011, above n. 19. new Act.
The Chairman of the Governing Board who shall be appointed by the President must be either a Judicial Officer who is retired or a lawyer of repute with not less than 15 years standing.50 Other members of the board shall be sixteen (16) in number.
There are three (3) major departments at the Council’s head office, namely: Finance and Administrative Department, Litigation Department and International Relations, Corporate Operations, Planning, and Research.
The new Act, however, empowers the Council to create more departments as the Governing Board may decide.51 In a bid to make justice more accessible to indigent members of the Nigerian society, the new Act for the first time provided for the establishment of zonal offices in each geopolitical zone of the country.
The zonal office is headed by an officer who coordinates the state offices in the zone.52 The Zonal Officer is responsible to the Director of Litigation.53 The Council has a presence in each state in the country and state offices are coordinated by an officer who is responsible for activities in the state.
The state coordinators report to the zonal officer in charge of such a state.
The three legal services units of the Council are operated in the state offices, that is, Criminal Defense; Civil Litigation and Community Legal Service.54 However, there is the need for a better geographical spread of the offices of the Council to make justice more accessible to the doorstep of the indigents.
For instance, in some states, the office of the Council is only located in the capital while persons in the hinterlands and other remote areas of the state who may not have the 49 Ibid, at s. (2) – (4).
50 Ibid, at s. 2 (1) and (2).
51 Ibid, at s. 6 (1) (a) – (c).
52 Ibid, at s. 6 (2).
53 Ibid, at s. 6 (3).
54 Ibid, at s. 6 (4) and (5).
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6 No.2 (2019) State Regulations and Law Enforcement 146 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... wherewithal to get to the capital will be denied access to justice.
According to section 46 of the Constitution of the Federal Republic of Nigeria, the Council is funded mainly by the Federal Government of Nigeria through funds appropriated annually by the National Assembly.55 In addition to that, there are also funds allocated to legal aid as well as access to justice by states of the Federation, including the Federal Capital Territory.
It can also accept donations from individuals and bodies apart from the general funds allocated.56 However, it has been observed that the funds appropriated by the National Assembly have been grossly inadequate to effectively fund the operations of the Council.57 Every state is obliged to ensure access to justice by its citizens, without any hindrance or barriers.58 To achieve this, states must ensure that the major barrier to access justice, that are legal fees or financial weakness is removed by providing legal aid to the less privileged and downtrodden in the society.59 It follows therefore that an efficient legal aid scheme is germane for unrestricted access to justice.60 Given this, every society must, therefore, provide its citizenry with pro bono legal service, particularly the vulnerable and poor members of the society.61 It is imperative to mention that the Nigerian 55 Nigerian Const.
1999 (as amended).
56 The Legal Aid Act 2011, above n 19, s. 9.
57 O. Gbolagunte, Refurbishment of Legal Aid in Nigeria, (22 August 2018), <http://davidsongbolagunte.wordpress.com/2014/ 07/08/refurbishment-of-legal-aid-in-nigeriagbolagunte-oladotun/> 58 E. Ojukwu, et.
al, Access to Justice, Chapter 5, Handbook on Prison Pre-Trial Detainees for Law Clinics, (Network of University Legal Aid Institutions, Nigeria) 121-152, 2012.
59 Helen Obura, Facilitating Access to Justice through Legal Aid: Models, Laws and Practices in East Africa: a Case of Uganda, being paper government must be commended in this regard having established the Council as the primary agency saddled with such responsibility.62 The Council is empowered to provide legal aid and access to justice in three areas namely: Criminal Defence Service; Civil Litigation Service as well as advice and assistance in Community Legal Services, provided the persons concerned are indigents.
Under the Criminal Defence Service, the Council shall be responsible for assistance to indigents involved in a criminal investigation, representation or advice.63 Criminal offenses which fall within the scope of the Council as listed in the second schedule of the new Act are: murder; manslaughter; malicious or grievous hurt; assault occasioning bodily harm; common assault and affray.
Others are stealing; rape, armed robbery and aiding and abetting the commission of any of the afore-listed offences.64 The Civil Litigation Service shall assist the indigents in accessing justice, legal advice, representations in courts/tribunals for the purpose their defense; enforcement and protection of their rights, obligations and interests as guaranteed by the laws of the land.65 The scope of the responsibilities of the Council when it comes to civil litigation service are: civil claims in respect of accidents including employee’s compensation claim; claim covering breach presented at the 8th East African Judicial Conference held at Arusha, Tanzania, at 3, 2009.
60 N. Ojukwu-Ogba, Criminal Justice Administration and Fundamental Rights Protection in Nigeria: The Legal Aid Act 2011 in Perspective in Issues on Criminal Justice Administration in Nigeria, Edited by Adekunle Adedeji, et.al (Nigerian Institute of Advanced Legal Studies, Lagos) 90-97, 2016.
61 Ibid.
62 Legal Aid Act 2011, above n. 19, s. 8.
63 Ibid, at s. 8 (2).
64 Ibid, at second schedule.
65 Ibid, at s. 8 (3) and (4).
http://davidsongbolagunte.wordpress.com/2014/07/08/refurbishment-of-legal-aid-in-nigeria-gbolagunte-oladotun/ http://davidsongbolagunte.wordpress.com/2014/07/08/refurbishment-of-legal-aid-in-nigeria-gbolagunte-oladotun/ http://davidsongbolagunte.wordpress.com/2014/07/08/refurbishment-of-legal-aid-in-nigeria-gbolagunte-oladotun/ Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 147 of fundamental rights under the Constitution of the Federal Republic of Nigeria, 1999 and civil claims arising from criminal activities against a person who is qualified for legal aid under the new Act.
Also, the Council runs the Community Legal Service which is mainly involved in the provision of legal assistance, resolving disputes about legal rights and duties.66 It is important to note that in the exercise of the Community Legal Service, the Council shall ensure that there is a swift and fair resolution of disputes and access to justice.67 It is estimated that the Council handles averagely 25,000 cases (both criminal and civil) annually for indigent Nigerians.68 It is imperative to state that this is commendable.69 However, considering the size of the Nigerian population which is almost 200 million with a vast majority considered indigent, the Council handling an average of 25, 000 cases annually is not good enough, a lot more still needs to be done.
According to the new Act, legal aid shall be provided to persons who do not earn up to the national minimum wage, which is currently eighteen thousand naira (N18, 000.00).
Considering the present-day economic reality and inflation, so many people who earn more than the national minimum wage are yet impoverished.
Therefore, the requirement of the national minimum wage as a qualification for legal aid may cause hardship and prevent so many Nigerians from accessing justice.
However, 66 Ibid, at s. 8 (7).
67 Ibid, at s. 8 (8).
68 A.I Abdulkadir, Legal Aid Council at 40, Blueprint News, Nigeria (22 August 2018), <https://www.blueprint.ng/legal-aid-council-ofnigeria-40/> 69 M. Egbejule And I. Akpan-Nsoh, Legal Aid Council Settles 174 Cases in Edo and Akwa Ibom, Guardian Newspaper, Nigeria of 22 March 2016 (22 August 2018), in a bid to further enhance access to justice for members of the society, legal aid may be granted on a contributory basis to persons whose earning exceeds the national minimum wage up to ten times provided the Governing Board approves same.70 While it is a good thing that the Council can grant legal aid to persons earning above the national minimum wage, it is important to state that not every person whose earning is above the national minimum wage would be able to benefit from this because of the proviso that it must be on contributory basis, as they may not find this affordable.
Again, it will take the Board to approve such an application for legal aid for persons who earn above the national minimum wage and this could be very cumbersome and timeconsuming.
There should be no restriction whatsoever, no requirements fixed for access to legal aid by all Nigerians.71 It is important to state that the new Act, however, exempts corporate bodies from accessing legal aid.
Similarly, the rules of any court relating to the payment of fees shall be waived a person who is benefitting from legal aid.72 What this means is that the Council shall not pay for costs awarded in the course of a legal proceeding against a person who is a beneficiary of legal aid.
Similarly, the rules of court relating to the payment of fees, including but not limited to filing fees shall not apply to a person who has been granted legal aid.
However, due to high level of corruption in the country, officials in the <https://guardian.ng/news/legal-aid-councilsettles-174-criminal-cases-in-edo-aibom/> 70 Legal Aid Act 2011, above n 19, s. 10.
71 M. Agbamuche-Mbu, et.al., Legal Aid Should be Elevated to the Level of Fundamental Right, This Day Newspaper, Nigeria of 10 May 2016 (22 August 2018), <http://www.thisdaylive.com/index.php/2016/05/ 10/legal-aid-should-be-elevated-to-the-level-of-afundamental-right/> 72 Legal Aid Act 2011, above n 19, s. 10 (4) and (5).
https://www.blueprint.ng/legal-aid-council-of-nigeria-40/ https://www.blueprint.ng/legal-aid-council-of-nigeria-40/ http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 148 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... court registry where cases are to be filed and the bailiffs who are supposed to serve the filed processes on the appropriate parties are in the habit of demanding for money as ‘tip’ before they carry out their lawful duties.73 Whenever their demands are not met by legal practitioners working for the Council, they frustrate the cases either by delaying the assignment of such cases to courts/judges or by not effecting service on the necessary parties.74 This may consequently cause a delay in the dispensation of justice.
Register of legal practitioners who represent indigent persons that are qualified for legal aid are maintained by the Council.
Given this, private lawyers who are desirous of rendering pro bono legal services to the less privileged and downtrodden in the society are encouraged to register with the Council.
This will enable the Council to track and monitor the progress of cases being handled by such lawyers.
Also, it is now part of the requirements to be conferred with the prestigious rank of Senior Advocate of Nigeria that aspirants must have diligently conducted not less than three (3) cases on pro bono basis in the legal year preceding the making of the application.75 It has however been observed that most of the senior lawyers in Nigeria are not honestly committed to giving back to their various communities and impacting positively on the lives of indigent members of the society through engaging in pro bono services.
They simply do so to fulfil the requirement that they must conduct at least three cases of pro bono before they can be conferred with the rank of Senior Advocate of Nigeria.76 This attitude is 73 R. Otaru, Access to Justice and Right to Fair Hearing, 35-36, Pdf file (23 August 2018), <http://www.otaruotaru.com> 74 Ibid.
75 Legal Aid Act 2011, above n. 19, s. 18 (2).
76 Agbamuche-Mbu, above n 71. condemnable and has not assisted much in the Council’s objective of promoting access to justice.
Apart from the requirement of aspiring lawyers to the prestigious rank of Senior Advocate of Nigeria engaging in three cases pro bono in the year preceding their application, the Council has partnered with about Three hundred and forty-three (343) law firms toward the provision of access to justice to indigent members of the society.77 It must be said that in spite of this laudable initiative, a very huge Nigerian population, particularly the poor still cannot access justice through the Council.
So many poor and vulnerable persons are still detained unjustly in police cells, prisons congested, and dispensation of justice delayed as a result of inadequate legal representation, among others.78 Closely related to the aforementioned is the use of National Youth Service Corp members who are legal practitioners working with the Council to give legal aid and access to justice to indigent members of the society.
To further encourage and spur such corps members to be committed, the Council pays a stipend to cover their transportation in the course of rendering their services.79 While commending this innovation, it must be mentioned that considering the present economic reality and inflation in the country, the stipend paid by the Council to the corps members may be a major discouragement to their commitment to the services of the Council.
The stipend compared to the distance they may have to cover and the huge workload may not be sufficient to get 77 U. Ukpong, Poor Nigerians Lack Access to Justice – Legal Aid Council, Nigerian Pilot Newspaper of 22 July 2017 (22 August 2018), <http://nigerianpilot.com/poor-nigerians-lackaccess-to-justice-legal-aid-council/> 78 Ibid.
79 Legal Aid Act 2011, above n. 19, s. 16. http://www.otaruotaru.com/ http://nigerianpilot.com/poor-nigerians-lack-access-to-justice-legal-aid-council/ http://nigerianpilot.com/poor-nigerians-lack-access-to-justice-legal-aid-council/ Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 149 anything done.80 To make matters worse, the money may not even be paid as and when due and these corps members may have to resort to spending from their purses to fund their services for the Council.81 The irregular payment of stipend to these corps members has been blamed on the paucity of funds from the government.82 The problem of inadequate funding is a major one.
It is attributed to the fact that no precise amount is allocated to the Council, its funding is subject to whatever the National Assembly appropriates to it.83 The reality is that the National Assembly has never deemed the issue of promoting access to justice for Nigerians particularly the indigent ones so important, therefore, less priority given to it in the scheme of things and appropriation of funds.84 Non-governmental organisations and university-based law clinics under the Network of University Legal Aid Institutions (NULAI) have continued to play vital roles in the rendering of pro bono legal services to indigent members of the Nigerian society and promoting access to justice.85 Some of their activities include providing amicable resolution of civil disputes, providing counselling services, regular prison visits and facilitating the release of pre-trial detainees, securing the release of detainees at police stations as well as representing clients in both criminal and civil cases before courts and tribunals.
In order to properly appraise the partnership of the Council with these organisations and promote access to justice, 80 Gbolagunte, above n. 57.
81 Ibid.
82 Ibid.
83 Ibid.
84 Ibid.
85 OJUKWU et.al., Clinical Legal Education Curriculum Lessons and Materials (Network of University Legal Aid Institutions (NULAI), Abuja, 4-9, 2013. the Council maintains a register where the details of such organisations and law clinics who are engaged in the provision of pro bono services and assistance to persons who are entitled to legal aid as well as their activities are recorded.86 It has been observed that the collaboration between the Council and these NULAI law clinics have only existed on the papers and not in reality.
The Council has not been pro-active in its collaborations with these law clinics.
Most of these clinics have not received any form of support or encouragement from the Council, neither have their activities been monitored to ensure effectiveness nor fulfilment of their set mandates.
In order to check the ever-increasing population of detainees at the police stations and prison facilities across the country, the Council is enjoined to rregularly visit prisons, police stations as well as other places where suspects are kept to review the circumstances surrounding their detention.87 To further promote access to justice, the Council has made provision for early access to legal advice and representation.88 It, therefore, prevails on police officers and courts to inform suspects of their entitlement to the services of a lawyer of their choice right from the moment of arrest and where the suspects are incapable of securing the services of a private lawyer, the Council must be notified so that the suspects can be represented by the Council if they so wish.89 The Council in conjunction with Open Society Justice Initiative and the Nigerian 86 Legal Aid Act 2011, above n 19, s. 17.
87 Ibid, s. 19 (1).
See also S. Ibe, ‘Arresting Escalating Pre-Trial Detention in Nigeria: Some Reform Ideas’ (2013) 2 African Journal of Clinical Legal Education and Access to Justice, 102-104.
88 Ibid.
89 Legal Aid Act 2011, above n 19, s. 19 (2).
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 150 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... Police Authority also have in place an arrangement known as ‘Police Duty Solicitors Scheme’ whereby legal practitioners, as well as lawyers under the National Youth Service Corp Working for the Council, are deployed to police stations to grant legal aid, in form of legal advice and representation to indigent criminal suspects within the first 48 hours of arrest.90 These lawyers are, therefore, granted unrestricted access to detainees in police cells, prisons and other places.91 They will also be entitled to conduct interviews or be present during the interrogation of suspects under the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended).92 It is pertinent to state that in reality, the Council has not done too well in carrying out these objectives.
The major constraints against the fulfilment of those objectives are the inadequacy of personnel and inadequate funding.93 For the Council to visit police stations and prisons regularly to review the cases of detained persons, it must be adequately funded, there must be functional vehicles to convey lawyers to ease their movement and there must be adequate personnel on the ground to carry out the assignment.94 According to the immediate past Director-General of the Council, Joy Bob-Manuel, she noted that the salaried lawyers in the Council were inadequate to attend to the needs of the Nigerian population which stood at that time at 170 million people and this has consequently resulted in defendants waiting endlessly for the resolution of their cases due to inadequate 90 Ibe, above n 87, at 115-116.
91 Ibid.
92 Legal Aid Act 2011, above n 19, s. 19 (3).
93 Gbolagunte, above n. 57; Ukpong, above n. 77.
94 Ibid.
95 Ukpong, above n. 77.
96 C. Ayansina, Laws in Nigeria are Against the Poor – Legal Aid Council, Vanguard Newspaper, legal representation.95 In another forum, the Bob-Manuel was equally quoted to have revealed that it has been extremely difficult for the Council to fulfil its mandate and adequately defend indigent persons in Nigeria with only four lawyers per state.96 As a matter of fact, in some state offices of the Council, there are less than four lawyers.
The question then will be how less than two lawyers can be effective in a whole state.
However, the Council regularly collaborate with the Judiciary, Office of the Attorney-General of the Federation or of any State, the Department of Public Prosecution, the Inspector-General of Police, the Commissioners of Police, Prison Authority or other agencies as may be appropriate, in order to ensure quick dispensation of justice for the less privileged and downtrodden persons they represent.97 In the same vein, the Council as part of its mandates regularly makes an application in appropriate courts for the review of cases of persons who have been held in any place of custody without trial over the maximum time provided by the Constitution.
This privilege is however not limited to persons who are entitled to legal aid alone.98 To a large extent, the Council has made an impact in this regard.
However, a lot still needs to be done.
As mentioned earlier, the problem of inadequacy of personnel and fund have constituted major challenges in achieving these objectives.99 6.
Some of the Innovations and new features of the Legal Aid Act 2011 and Access to Justice Nigeria of 8 August 2015, (22 August 2018), <http://www.vanguardngr.com/2015/08/laws-innigeria-are-against-the-poor-legal-aid-council/> 97 Legal Aid Act 2011, above n 19, s. 19 (4).
98 Ibid, at s. 19 (5).
99 Gbolagunte, above n 57.
See also Ojukwu-Ogba, above n 60, at 100-103. http://www.vanguardngr.com/2015/08/laws-in-nigeria-are-against-the-poor-legal-aid-council/ http://www.vanguardngr.com/2015/08/laws-in-nigeria-are-against-the-poor-legal-aid-council/ Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 151 a.
To ensure adequate representation of interests on the Governing Board of the Council, the membership of the Governing Board increased from thirteen (13) to sixteen (16).100 b.
The Director-General shall now enjoy tenure of four (4) years and shall be renewable subject to satisfactory performance for another four (4) years.
This is in line with what obtains in the Federal Civil Service where Directors and Permanent Secretaries now can only spend a maximum of eight (8) years in those capacities.101 This is to afford the Director-General adequate time to efficiently attend to the affairs and management of the Council without any hindrance or disruptions, which could be occasioned by the time constraint.
c. The responsibility of the DirectorGeneral has been upgraded under the 2011 Act to the day-to-day management of the resources of the Council such as, human, financial and material unlike what was obtainable under the previous Acts.102 This would invariably influence the activities of the Council towards achieving its set objectives.
d. Section 4 (4) of the 2011 Act now empowers the Council to recruit, employ personnel both legal and non-legal (including permanent and contractbased) as may be required for the smooth running of the Council and implementation of its objectives.
This autonomy will go a long way to address the problem of inadequate manpower which before the amendment of the Act was a clog in the wheel of progress of the 100 Legal Aid Act 2011, above n 19, s. 2 (1) (g) – (k).
101 Ibid, at first schedule.
102 Ibid, at s. 4 (1).
103 Legal Aid Act 2011, above n 19, at second schedule.
Council.
The Council can now recruit officers at will, based on the needs and financial strength of the Council.
However, despite this provision, the problem of shortage of manpower has continued to plague the Council.
This is largely due to poor wage rate and poor conditions of service.
e. The scope of the Council concerning entertaining criminal matters as listed in the Second Schedule to the 2011 Act was increased.103 The Council now has scope to entertain criminal matters such as murder (also known as culpable homicide punishable with death), manslaughter (also known as culpable homicide not punishable with death) and malicious or willful grievous hurt (also known as wounding or inflicting grievous bodily harm).
Others are, assault occasioning actual bodily harm (also known as criminal force occasioning actual bodily harm), common assault, affray, stealing, rape and armed robbery.104 It is pertinent to note that despite the expansion of the scope of the Council concerning criminal trials, many indigents persons are still languishing in prisons and police cells across the country without any legal representation, consequently, the prisons are still congested mostly by awaiting trial inmates.
As of 3rd December 2018, the total population of Nigerian prisons was 75, 772.
Out of this figure, 24, 388 (32%) were convicts while 51, 384 (68%) were awaiting trial inmates.105 f. The scope of the Council’s involvement in civil matters became expanded by the 104 Ojukwu-Ogba, above n. 60, at 97.
105 Summary of Prison Population, (14 February 2019), <http://www.prisons.gov.ng/statistics> Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 152 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... provision of Section 8 (3) and (4) of the 2011 Act.
The Council now entertains civil matters in the following areas: claims arising from accident under Employee’s Compensations Claim (pursuant to the Employee’s Compensations Act, No.
13 of 2010); claims arising from the breach of fundamental human rights and lastly, claims arising from criminal activities against persons who are qualified for legal aid.
It is important to state that the Council has entertained a considerable number of civil cases for indigent members of the Nigerian society since 2011 when its scope on civil matters was expanded.
g. The Act provides for two main sources of funds for the operations of the Council, that is, funds appropriated by the National Assembly and funds budgeted by the states of the federation including the Federal Capital Territory.106 In addition to the aforementioned, the Act also separately empowers the Council to accept donations, gifts and other related things but not as part of the general funds for the Council.107 It is imperative to note that despite the provision for funding, the Council is still considered underfunded and this has adversely affected the fulfilment of its objectives.108 h. The Council is to maintain a register of non-governmental Organisations and law clinics that are involved in the provision of free legal services to 106 Ibid.
See also Legal Aid Act 2011, above n 19, s. 9.
107 Legal Aid Act 2011, , above n 19, s. 12.
108 Legal Aid Council Receives 18 Cases in 2 Months in Kano, (17 February 2019), <http://www.legalaidcouncil.gov.ng/index.php/en /> individuals who are qualified for such under the Act.109 This is to aid the Council in proper planning, efficient monitoring and implementation of its objectives.
This will consequently increase access to justice.
i.
The Act provides that legal aid shall be provided to persons whose income is below the national minimum wage.
It further provides that the Governing Board could, however, grant legal aid on a contributory basis to persons whose earning exceeds the national minimum wage up to ten times.
This is an improvement on the earlier provision of the old Act which provided that legal aid would only be granted to persons whose income do not exceed five thousand naira (N5, 000.00) per annum except with the approval of the President of the Federal Republic.110 j.
The Act empowers the Council to collaborate with non-governmental organisations or law clinics by the mandate of the Council.111 k. National Youth Service Corp members who are legal practitioners with the Council can now get a stipend for transportation in the course of working for the Council.112 This is against what was obtainable in the old Act.
This will go a long way to spur such corps members while performing their duties in the service of the Council.
l. The Council is empowered to give licenses to persons who have been trained to be paralegals in order to render such services when required.113 This will 109 Legal Aid Act 2011, above n 19.
110 Ibid, at s. 10.
111 Ibid, at s. 17 (2).
112 Ibid, at s. 14.
113 Ibid, at s. 17 (3).
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6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 153 help to reduce the burden and pressure on the legal practitioners and officers of the Council and by implication reduce the workload of the Council.
m. The Council is empowered to carry out regular inspection of police cells, prisons and other places where suspects are detained to review the circumstances surrounding their detention.114 This innovation is a laudable one as it will check the rate at which police detain suspects arbitrarily and help to decongest police cells as well as prison facilities across the country.
n. There shall be a regular collaboration between the Council, judiciary, Attorney-General of the Federation or State (as the case may be) and the Department of Public Prosecution.
Also, the Inspector General of Police, Nigerian Prison Authority and other appropriate agencies to enhance quick dispensation of justice.115 This will greatly enhance access to justice in the country.
o.
File an appropriate application for the release or review of cases of persons who have been detained without trial over the maximum period allowed by the Constitution.116 This could be by way of filling applications for bail, applying for striking out where the prosecution is not diligent in carrying out their duties or in any other way appropriate depending on the circumstances surrounding each case.
IV.
CONCLUSIONS AND SUGGESTIONS Having highlighted the reason behind the establishment of the Legal Aid Council of Nigeria, the article studied the pillars 114 Ibid, at s. 19 (1).
115 Ibid, at s. 19 (4).
upholding both the old Act, that is, the 1976 Act (which is now repealed) and the extant Act, that is, the 2011 Act.
The Legal Aid Act 2011 has no doubt introduced some laudable innovations and filled identified lacunas in the areas of functions, operation, responsibilities and duties of the Council.
It is a great improvement on the old Act.
However, a lot still needs to be done to make justice more accessible to the downtrodden and indigent members of our society.
It must be borne in mind that having all the statutory provisions in place is not enough but a thorough implementation of these provisions and the commitment to the rule of law.
Based on the foregoing, it is therefore suggested thus: First, Stakeholders in the justice sector must at all times be committed and reminded of the duty to ensure that all, irrespective of status, background, ethnicity or religion get quick and unfettered access to justice.
Second, Legal practitioners should appreciate and participate in the legal aid scheme either through financial donations or by engaging in pro bono legal services and thereby contributing their quotas to humanity.
Where these are done, they will impact positively on the economic and social well-being of the society.
Third, the government must also appropriate more funds to the Council to enable it to live up to its expectations as the Council is currently grappling with the challenge of underfunding.
If the Council is properly funded, it will be able to fulfil its set objectives and promote access to justice.
The Council should be funded from the consolidated revenue fund to ensure security and certainty of fund for the Council.
Apart from that, governments at the state and local government levels should also be mandated 116 Ibid, at s. 19 (5).
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 154 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... to fund the operation of the Council to sustain it.
Fourth, Well-meaning individuals, agencies, local and international bodies must rise and support the Council through donations in various forms including but not limited to money, office buildings, training and retraining of staff, provision of official vehicles, among others.
Fifth, The Council must recruit more hands, both legal practitioners, paralegal and support staff to work as a team and assiduously towards the achievement of its set objectives.
On this, the Council must make efforts to improve on the welfare and funding of the agency to make it more attractive to lawyers out there who may be interested in joining the Council.
Sixth, more importantly, the remuneration and allowances of members of staff of the Council must be upwardly reviewed and improved upon by appropriate government agency/department as what they currently receive is poor and capable of dampening their enthusiasm as well as commitment.
If this is done, it will go a long way to encourage the salaried lawyers in the Council to be more committed and to put in their very best in the performance of their duties and consequently access to justice will be enhanced.
Seventh, the laudable police duty solicitor scheme of the Council must be improved upon, reinforced and expanded to all parts of the Federation.
If this is done, it will avail indigent criminal suspect’s access to early legal advice and representation and invariably check unnecessary detention in police cells as well as prison congestion.
Eighth, to make justice accessible to all and sundry, section 10 of the Act which provides for qualification for legal aid should be amended such that there will be no restriction whatsoever to every Nigerian citizen.
Legal aid should be upgraded to the status of a fundamental human right in the Constitution.
Ninth, The requirement of aspiring lawyers to the prestigious position of Senior Advocates of Nigeria engaging in not less than three (3) pro bono cases in the preceding year before the making of the application should be reviewed to not less than ten (10) pro bono cases.
Also, the government should make it a requirement for persons aspiring to occupy or be promoted to certain legal professional positions to engage in a certain number of pro bono services to promote access to justice in Nigeria.
Tenth, there is also the need to publicise the existence and operations of the Council as so many Nigerian are not aware of its existence and functions.
This publicity should be regular, done in both English and the various local dialects in the various Nigerian communities and disseminated through the mass media.
Lastly, another germane point is the need for orientation and re-orientation of members of the public on the powers and scope of operation of the Council.
This is important, as the majority of these detainees do not believe that they could receive quality and efficient service from the Council since it is pro bono.
They would therefore rather consider the services of a private legal practitioner, and where they are poor and cannot afford one, they would instead be quiet even in the face of abuse and flagrant violation of their rights.
Similarly, some pretrial detainees in police cells and prison facilities who are standing trial in criminal cases in court find it somehow awkward and difficult to reconcile how the government will be prosecuting them and the same government will be providing them pro bono legal service for their defence.
Therefore, they doubt the sincerity of the services of the Council.
Given this, regular orientation should be considered for police cells and prison detainees.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria...| 155 REFERENCES Book Garner, B.A.
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(Thompson-West, New York), 942, 2009.
Ojukwu et.al., Clinical Legal Education Curriculum Lessons and Materials (Network of University Legal Aid Institutions (NULAI), Abuja, 4-9, 2013.
Ojukwu, E., et.
al, Access to Justice, Chapter 5, Handbook on Prison PreTrial Detainees for Law Clinics, (Network of University Legal Aid Institutions, Nigeria) 121-152, 2012.
Ojukwu-Ogba, N., Criminal Justice Administration and Fundamental Rights Protection in Nigeria: The Legal Aid Act 2011 in Perspective in Issues on Criminal Justice Administration in Nigeria, Edited by Adekunle Adedeji, et.al (Nigerian Institute of Advanced Legal Studies, Lagos) 90-97, 2016.
Article/Journal Barry, M.M, ‘Clinical Legal Education in the Law University: Goals and Challenges’, (2007) International Journal Of Legal Education, pp 27-50 Oba, C.O., ‘Third Party Litigation Funding and Access to Civil Litigation: Prospects and Challenges in Nigeria’ (2013) 23(2) African Journal Of Clinical Legal Education And Access To Justice.
Obura, Helen, ‘Facilitating Access to Justice through Legal Aid: Models, Laws and Practices in East Africa: a Case of Uganda’, (Paper presented at the 8th East African Judicial Conference held at Arusha, Tanzania, at 3, 2009) Ibe, S., ‘Arresting Escalating Pre-Trial Detention in Nigeria: Some Reform Ideas’ (2013) 2 African Journal of Clinical Legal Education and Access to Justice, 102-104.
Wanyama, E., ‘Unpacking the Dialectics of Accessing Justice through Legal Aid in East Africa: An Overview of the Constitutions of Uganda and Kenya’ (2013) 59(2) African Journal Of Clinical Legal Education And Access To Justice.
Act The Legal Aid Act 2011.
The Legal Aid Act 1976, Cap L9, Laws of the Federation of Nigeria, 2004 Nigerian Const.
1999 (as amended).
Internet Abdulkadir, A.I, ‘Legal Aid Council at 40, Blueprint News, Nigeria (22 August 2018), <https://www.blueprint.ng/legal-aidcouncil-of-nigeria-40/> A historical Profile of the Legal Aid Council of Nigeria, (14 February 2019), <http://www.legalaidcouncil.gov.ng/in dex.php/en/about-us/profile> Ayansina, C., Laws in Nigeria are Against the Poor – Legal Aid Council, Vanguard Newspaper, Nigeria of 8 August 2015, (22 August 2018), <http://www.vanguardngr.com/2015/0 8/laws-in-nigeria-are-against-thepoor-legal-aid-council/> Agbamuche-Mbu, M., et.al., Legal Aid Should be Elevated to the Level of Fundamental Right, This Day Newspaper, Nigeria of 10 May 2016 (22 August 2018), <http://www.thisdaylive.com/index.ph p/2016/05/10/legal-aid-should-behttp://www.vanguardngr.com/2015/08/laws-in-nigeria-are-against-the-poor-legal-aid-council/ http://www.vanguardngr.com/2015/08/laws-in-nigeria-are-against-the-poor-legal-aid-council/ http://www.vanguardngr.com/2015/08/laws-in-nigeria-are-against-the-poor-legal-aid-council/ http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 156 | Adebayo, Oguwe Access to Justice through Legal Aid in Nigeria... elevated-to-the-level-of-afundamental-right/> Egbejule, M. And I. Akpan-Nsoh, Legal Aid Council Settles 174 Cases in Edo and Akwa Ibom, Guardian Newspaper, Nigeria of 22 March 2016 (22 August 2018), <https://guardian.ng/news/legal-aidcouncil-settles-174-criminal-cases-inedo-aibom/> Gbolagunte, O., Refurbishment of Legal Aid in Nigeria, (22 August 2018), <http://davidsongbolagunte.wordpress .com/2014/07/08/refurbishment-oflegal-aid-in-nigeria-gbolagunteoladotun/> Legal Aid Council Receives 18 Cases in 2 Months in Kano, (17 February 2019), <http://www.legalaidcouncil.gov.ng/in dex.php/en/> Legal Aid Council of Nigeria, (2 July 2019), <http://www.legalaidcouncil.gov.ng.> Otaru, R., Access to Justice and Right to Fair Hearing, 35-36, Pdf file (23 August 2018), <http://www.otaruotaru.com> Summary of Prison Population, (14 February 2019), <http://www.prisons.gov.ng/statistics> Ukpong, U., Poor Nigerians Lack Access to Justice – Legal Aid Council, Nigerian Pilot Newspaper of 22 July 2017 (22 August 2018), <http://nigerianpilot.com/poornigerians-lack-access-to-justice-legalaid-council/> http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ http://www.thisdaylive.com/index.php/2016/05/10/legal-aid-should-be-elevated-to-the-level-of-a-fundamental-right/ http://www.legalaidcouncil.gov.ng/index.php/en/ http://www.legalaidcouncil.gov.ng/index.php/en/ http://www.legalaidcouncil.gov.ng./ http://www.prisons.gov.ng/statistics
DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.08| 117 Implementation of Resolution no.
4/2016 of the ICPO-INTERPOL Concerning Biometric Data Sharing: Between Countermeasures Against Terrorist Foreign Fighters (FTFS) and Protection of the Privacy of Indonesian Citizens Amira Paripurna1, Masitoh Indriani2, Ekawestri Prajwalita Widiati3 1 Department of Criminal Law, Faculty of Law Universitas Airlangga E-mail : amira@fh.unair.ac.id 2 Department of International Law, Faculty of Law Universitas Airlangga E-mail : masitoh@fh.unair.ac.id 3 Department of Constitutional Law, Faculty of Law Universitas Airlangga Submitted: 2018-03-01 | Accepted: 2018-04-04 Abstract: This study aims to identify and explore the challenges in the implementation of Resolution No.
4/2016 of the ICPO-INTERPOL concerning sharing and exchanging biometric data among the members of ICPO-INTERPOL in order to counter terrorist foreign fighters (FTFs).
This research also aims to elaborate and describe the mechanism of collecting, recording, storing, and exchanging biometric data conducted by the Indonesian government.
The mechanism of collecting, recording, and storing biometric data works through 3 main doors, namely: 1) in the process of making electronic Resident’s ID Cards (e-ID Cards); 2) in the process of making SKCK (Certificates of Police Record); 3) in the process of making e-Passports.
In the implementation of Resolution No.
4/2016 of ICPO-INTERPOL, the most obvious obstacles and challenges are the absence of regulations concerning the protection of personal data, and also the fact that the biometric data system itself is still relatively new and the database is not fully developed.
Until today, the INTERPOL National Central Bureau (NCB) for Indonesia does not have its own biometric database system; instead they are using the database that is centralized at Pusinafis Polri (the Indonesian National Police’s Center of Automatic Fingerprint Identification System).
The results of the study reveal that the biometric data recorded, collected, and stored are big data, but so far in supporting law enforcement and crime prevention processes the data have only been used as comparative data.
In addition, there have also been found indications of violations of personal data and privacy, for example in relation to the absence of mechanism for data retention, consent, processing, notification, and disclosure.
Keywords: INTERPOL, Biometric Data, Intelligence Sharing, Data Privacy, Terrorism I.
INTRODUCTION mailto:amira@fh.unair.ac.id Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 118 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… When dealing with the complexity of terrorism and transnational-organized crimes (hereinafter abbreviated as TOC), such as narcotics crime, counterfeit money crime, etc., oftentimes the law enforcement officers become overwhelmed.
This is because in terms of speed the law enforcement officers are far behind the perpetrators in executing their criminal intent, destroying evidence, and running away.
In addition to the increasingly sophisticated methods, perpetrators of these crimes can operate and move from country to country freely.
In the aspect of early detection, preventing and thwarting acts of terrorism have become more complicated compared to acts of TOC.
Terrorism has a higher complexity than other acts of TOC.
Many events have shown the facts that although the intelligence has retained information on the movements and networks of terrorism, the tempus and locus delicti of terrorism events are always unexpected.
This is in contrast to drug crime, for example, whose movements, narcotics deliveries and organized networks can be traced online.
Real examples of the successful eradication of organized narcotics networks are already commonly known, which is not so with terrorism.
The bombing events in Bali, Kuningan, and Marriot on Thamrin Street in Jakarta, as well as terrorism attacks of WTC Building in New York, in Madrid and London, are real examples of how difficult it is to prevent terrorism in any other countries.
In the context of Indonesia, even though the law enforcement officers have succeeded in combating the largest terrorist networks in the country, namely the network of Santoso’s (the leader of the East Indonesia Mujahidin) and the Jama’ah Islamiyyah network, it does not mean that the problem of terrorism in Indonesia is over.
Terrorism continues to be a threat given the growing influence of radicalism everywhere, one of the problems being the emergence of ISIS as a new power, and not to mention the newly emerging problem of the return of the FTFs to their respective countries of origin.
The FTFs who return to their home countries are suspected of having great potential to spread out their experience and their influence, and ultimately recruit new members.
The international communities have acknowledged that not a single country in the world is able to deal with terrorism and TOC without the support of other countries.
Therefore, the international communities have established a number of international cooperations such as the ICPO-INTERPOL, Europol, and others.
In these international forums, a number of decisions and agreements are adopted to facilitate the coordination of cooperation in the police sector in order to combat terrorism and TOC.
One of the international cooperations the ICPO-INTERPOL has recently agreed on the implementation of biometric data sharing among its member countries.
In the 85th INTERPOL General Assembly convened on 7-10 November 2016 in Bali, the INTERPOL member countries made an agreement to conduct biometric data collection and sharing of data/information.
The contents of the agreement in the 85th INTERPOL General Assembly include conducting systematic collection and recording of the DNAs and fingerprints of suspects or defendants as well as collecting and sharing biometric data to help member countries in their efforts to arrest foreign terrorist fighters (FTF) crossing the border under fake names and travel documents.
The main objective is to address terrorism and transnational crimes.
With this agreement, it is expected that each member country can identify and conduct early prevention of potential threats of terrorism Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 119 and TOCs.
This step is taken because there are significant weaknesses in the collection and exchange of biometric data in relation to terrorism at the international level, as well as the alertness to the potential danger of the return of foreign terrorist fighters to their home countries.1 These weaknesses are considered to have created loopholes for interferences that are harmful to the security of each member country.
The biometric system has been around since one century ago.
Biometric technology is commonly used to identify individuals so that they can access certain facilities.
However, the use of this system as one of the instruments to assist law enforcement officers in their strategy to prevent crimes (policing) only became widely known in the past two decades.
With biometric technology, for example, law enforcement officers can identify and store unique identifiers such as fingerprints, DNAs, retinal and iris scans, and face recognition.
The facial recognition system has now become quite predominantly used for the counterterrorism purposes.2 In connection with counter-terrorism, especially in the pro-active counter-terrorism whose strategy is focused on the pre-crime aspects such as preventing and stopping, and disrupting terror plots, exchange of biometric data among law enforcement officers across the countries becomes highly relevant.
With the growing use of false aliases, falsification 1 Toni Bramantoro, ‘Koordinasi Antar Negara Adalah Kunci Untuk Mencegah Aksi Foreign Terrorist Fighter’, Tribunnews (online), 11 August 2016 <https://www.tribunnews.com/nasional/2016/08/11 /koordinasi-antar-negara-kunci-untuk-mencegahforeign-terrorist-fighter>; see also INTERPOL, ‘Foreign Terrorist Fighters,’ <https://www.INTERPOL.int/Crimeareas/Terrorism/Foreign-terrorist-fighters>; see also Muhammad Saifulloh, ‘BNPT Pimpin Negara ASEAN Bahas Foreign Terrorist Fighter’, Okezone (online), 11 August 2016, of travel documents, tactics of deception misleadingly suggesting a person has died in a conflict area, and even the basic issues associated with translations have exacerbated the challenges faced by law enforcement officers in the field.
Biometric data exchange becomes important especially for identifying the whereabouts of perpetrators.
This is certainly related to the functions of the ICPOINTERPOL, i.e.
to provide global police communication services that allow the police forces of member countries to request and transmit information.
This will let the police have an efficient way to share and access information.
INTERPOL functions to maintain and update databases that can be accessed and used by international police forces.
These databases contain a wide range of information including lists of wanted individuals, lists of stolen documents, and forgery trends.
The information available to law enforcement officers at the frontline level, through INTERPOL, is expected to help identify suspects accurately and release innocent individuals or minimize false arrests of terrorism suspects.
To date, INTERPOL already has 9,000 data on FTFs, including those in conflict zones, and only about 10% of the data currently possessed are complemented with biometric data and high<http://news.okezone.com/read/2016/08/11/337/14 60830/bnpt-pimpin-negara-asean-bahas-foreignterrorist-fighter> 2 Since the 9/11 terror attacks in the USA, face recognition has been used in the majority of airports.
This system is also installed in all areas that require high levels of security.
See also, Carlos Delano Buskey, How Face Recognition Will Be Used to Counter Terrorism, Biometrics Report (2001), 3; John D. Woodward, Jr, Facing up to Terrorism, (RAND Publication, 2001), 6-7. https://www.tribunnews.com/nasional/2016/08/11/koordinasi-antar-negara-kunci-untuk-mencegah-foreign-terrorist-fighter https://www.tribunnews.com/nasional/2016/08/11/koordinasi-antar-negara-kunci-untuk-mencegah-foreign-terrorist-fighter https://www.tribunnews.com/nasional/2016/08/11/koordinasi-antar-negara-kunci-untuk-mencegah-foreign-terrorist-fighter https://www.interpol.int/Crime-areas/Terrorism/Foreign-terrorist-fighters https://www.interpol.int/Crime-areas/Terrorism/Foreign-terrorist-fighters http://news.okezone.com/read/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter http://news.okezone.com/read/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter http://news.okezone.com/read/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 120 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… resolution images, which can be used in the facial recognition method.3 As an INTERPOL member country, on the one hand the law enforcement officers in Indonesia are obligated to comply with the terms of the agreement, but on the other hand biometric technology systems are still relatively newly adopted in Indonesia and counter-terrorism policing in Indonesia is still being developed to achieve the most efficient model that is also in conformity with the principles of law and human rights.
Therefore, with the agreement established among the ICPO-INTERPOL member countries to collect, record and share biometric data, it is important to identify and analyze challenges and obstacles in the implementation of Resolution No.
4/2016 of ICPO-INTERPOL related to sharing and exchange of biometric data among ICPOINTERPOL members.
Since the biometric technology system is still relatively newly adopted by the Indonesian government, knowledge and understanding of the mechanism of collection/gathering, recording and sharing of biometric data are needed from the perspective of legal protection of data and privacy of citizens.
II.
LEGAL MATERIALS AND METHODS This research is descriptive-analytic qualitative research.
The purpose of this research is to make descriptions, illustrations, identification and analysis systematically, factually and accurately of facts, characteristics and relationship between phenomena concerning the application of biometric data sharing in the police as well as among the ICPO-INTERPOL member countries, and the mechanism of collecting 3 Justin Lee,’INTERPOL says Lack of Biometric Data on Terrorists a Security Vulnebaribility’, Biometricupdate (online), 10 November 2016 <http://www.biometricupdate.com/201611/INTERP and recording biometric data, and the utilization of biometric data for law enforcement purposes primarily for the prevention of terrorism.
Primary data are data generated from interviews with research subjects.
In-depth interviews were conducted with the International Communication Division of Indonesia’s INTERPOL NCB Secretariat of the Indonesian National Police’s International Relations Division, and the Pusinafis (Centre of Automatic Fingerprint Identification System) of the Indonesian National Police’s Criminal Investigation Agency.
Meanwhile, secondary data consist of legal and non-legal documents and materials.
Legal materials consist of the national laws and regulations, legal provisions existing both at the national and international levels, and also technical rules in the field in the implementation of the system.
As for secondary legal sources, in this case they consist of studies concerning the legal aspects of the collection, storing, sharing and use of biometric data for law enforcement purposes, as well as studies concerning aspects of protection of data and privacy either in the form of books or journals.
Furthermore, this research also uses non-legal materials to add to and enrich the legal materials that have been gathered before.
III.
RESULTS AND DISCUSSIONS Collection, Storing and Sharing of Biometric Information Under Resolution No.
4/2016 of the ICPO-INTERPOL (‘Bali Resolution’) The 85th INTERPOL General Assembly held on 7-10 November 2016 in OL-says-lack-of-biometric-data-on-terrorists-asecurity-vulnerability>.
http://www.biometricupdate.com/201611/INTERPOL-says-lack-of-biometric-data-on-terrorists-a-security-vulnerability http://www.biometricupdate.com/201611/INTERPOL-says-lack-of-biometric-data-on-terrorists-a-security-vulnerability http://www.biometricupdate.com/201611/INTERPOL-says-lack-of-biometric-data-on-terrorists-a-security-vulnerability Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 121 Bali resulted in a resolution No.4/20164 (hereinafter referred to as ‘Bali Resolution’) to reinforce the implementation of biometric information sharing among the ICPOINTERPOL members in dealing with terrorists’ mobility.
This resolution (hereinafter referred to as ‘Bali Resolution’) basically encourages each member country to give maximum contribution to the ICPOINTERPOL’s efforts in compiling data related to terrorism, particularly in the matter of coordination with NCBs (ICPOINTERPOL members) through INTERPOL diffusions and international notice as well as INTERPOL’s Crime Analysis File aimed at dealing with foreign terrorist fighters (hereinafter referred to as FTFs).5 It is through this ‘Bali Resolution’ that member countries are also encouraged to perform cross-check systematically on the information already retained in the ICPOINTERPOL information systems and issue INTERPOL International notice and diffusions.
Systematic collection and storing of biometric information is an integral part of the terrorist profiles shared through the ICPO-INTERPOL channels 6 The focus of the systematic collection and storing of biometric information is the unique identifiable attributes, which include fingerprints and DNA profiles of individuals in the following categories7: 1.
Individuals known to have connections with, or have reached/entered into conflict areas with the aim of providing support or joining terrorist groups; 4 Resolution No.
4 AG-2016-RES-04.
5 Ibid.
6 Ibid.
7 Ibid.
8 Ibid.
9 ‘Roundtable on Biometric Data Sharing for Identity Verification: Introduction To The Regional Data 2.
Individuals who are deported, detained or subjected to court decisions for committing crimes related to terrorism, including individuals traveling with the aim of committing, planning, preparing, and participating in acts of terrorism; 3.
Individuals who provide or receive terror training, as well as who are connected to armed conflicts; 4.
Individuals returning from conflict areas who in the judgment of and investigation by the authorities have a high risk of cross-border mobility and a high risk of re-offending.
Currently, the INTERPOL databases have recorded nearly 8,000 profiles of individuals known or suspected as FTFs.8 These efforts are continuously improved to facilitate successful investigations, monitor and prevent terrorists’ mobility, as well as prevent the growing gaps of security among international countries.
The ‘Bali Resolution’ can thus be seen as a form of awareness of all member countries of the vital role of positive identification of terrorist suspects in the field, thereby promoting more efficient law enforcement and increased border security as needed, as well as minimizing the impact on other screened individuals on a broad scale.
Upon biometric data collection, the biometric data can then be used to identify suspected perpetrators of serious crimes as well as terrorism.
This can be done in several ways, which among others include:9 1.
Screen visa applicants, internally displaced persons, asylum seekers, Sharing Initiative,’ Baliprocess.net (online), October 2014 <http://www.baliprocess.net/UserFiles/baliprocess/ File/Discussion%20Paper%20on%20Biometric%20 Data%20Sharing.pdf>.
http://www.baliprocess.net/UserFiles/baliprocess/File/Discussion%20Paper%20on%20Biometric%20Data%20Sharing.pdf http://www.baliprocess.net/UserFiles/baliprocess/File/Discussion%20Paper%20on%20Biometric%20Data%20Sharing.pdf http://www.baliprocess.net/UserFiles/baliprocess/File/Discussion%20Paper%20on%20Biometric%20Data%20Sharing.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 122 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… residency applicants, and transit passengers.
This screening is required to find out if the persons in question are: a) suspected terrorists, or engaged in terrorist activities (including foreign fighters/FTFs), b) human trafficking victims, c) engaged in serious crimes or engaged in fundraising/collecting donations for organizations that are on the list of terrorist organizations or engaged in other transnational crimes; 2.
Screen visa applicants and persons seeking refuge to find out whether they filed asylum claims in multiple jurisdictions and “shopping forums”; 3.
Detect persons (asylum seekers or displaced persons) who have received asylum from a third country (the country of the first asylum) or have been registered as refugees by UNHCR; 4.
Re-document original visa or passport holders whose travel documents are lost/stolen/retained; 5.
Check travel documents against whitelists and blacklists issued for troubled countries or organizations.
Biometric Data Collection and Storage Mechanism in Indonesia Biometrics is an authentication method that uses the verification and validation of physical characteristics and characteristics of human behavior.
Verification and validation are conducted using fingerprint scan, iris/retinal scan, digital signature, face/face shape recognition, dental shape, and voice recognition to identify one’s identity.
Since 2009, the Indonesian Government has introduced and developed the use of Electronic Resident’s Identity Card (e-ID Card) nationwide.
This e-ID Card must be held by every citizen who has reached the age of 17 years and above.
This e-ID Card uses biometric technology to load security codes and electronic records as a means of verifying and validating the identity data of a resident.
Before the new policy concerning the use of e-ID Card was issued, the ongoing practice of conventional ID Card making system had enabled someone to hold more than one ID card.
This was due to the absence of an integrated database that collects population data from all over Indonesia.
Possession of multiple ID Cards was in many cases used to evade taxes, make certain passports that could not be made in every city, as well as disguise/conceal the identity of terrorists and perpetrators of other crimes.
As a matter of fact, the use and collection of biometric data has been practiced long before the e-ID Card was introduced, particularly when someone applied for a driver’s license (SIM).
Even so, the collection of the Indonesian citizens’ biometric data was not done as massively as it has been since the issuance of the policy in respect of e-ID Card use.
Hence, it is noted that since 2009 biometric data collection in Indonesia has been conducted through 3 doors, namely: 1.
Biometric data collection through e-ID Cards where the process of collecting and storing the database is under the responsibility of the Ministry of Home Affairs; 2.
Biometric data collection through Electronic Passports where the process of collecting and storing the database is under the responsibility of the Directorate General of Immigration and the Ministry of Law and Human Rights; 3.
Biometric data collection through Certificates of Police Record (SKCK), Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 123 where the process of collecting and storing the database is under the responsibility of the Indonesian National Police (Polri).
The biometric data collected through these 3 doors are mainly in the form of fingerprints.
There are at least three main reasons why fingerprints are used in authentication: in addition to being the most economical and low-cost compared to other biometric data and systems, fingerprints are not easily deformed and are unchangeable, and they have unique properties in that they are different from one individual to another.10 The storage center for biometric data (especially fingerprints) within the police structure is at the Pusinafis.
The technical procedures for biometric data storage are carried out by the sub-divisions within the Pusinafis, which can be described as follows:11 Technically, the principal division in charge of administering non-criminal fingerprint information management system whether manually, centralized and nationwide is the Biddaktium (the General Dactyloscopy Division).
This division is in charge of performing and supervising the fingerprinting process on an AK-23 card, and developing fingerprint formulation as well as sorting the AK-23 fingerprint cards and AK24 name cards,12 and after going through the processing stages the fingerprint data are stored and verified (through a retrieval process) manually.13 Sharing and Exchanging Biometric Data at the National Level 10 Kementerian Dalam Negeri RI, ‘Apa dan Mengapa E-KTP (What e-ID Cards Are and Reasons (for their use))’, e-ktp (online), 20 June 2011 <http://www.e-ktp.com/2011/06/hello-world/>.
11 Interview with Nurul Tristiati, 16 August 2017.
12 This task is carried out by the Fingerprint Processing Subdivision (the Prosiri Subdivision) One of the functions of biometric data is to support the law enforcement process.
Article 58 paragraph 4 of Law No.
24 of 2013 on Amendment to Law Number 23 of 2006 on Population Administration, regulates the utilizations of the population data collected from electronic Resident’s ID Cards, one of which is to support law enforcement and crime prevention.
Considering the significant role of electronic e-ID Card data in the law enforcement sector, and in line with the mandate of the Law, the Ministry of Home Affairs and INP have signed a memorandum of understanding (MoU) on the utilization of electronic Resident’s ID Card data.
With respect to the identification of biometric data (fingerprints), the Indonesian National Police (INP) has its own Centre of Automatic Fingerprint Identification System (known as Pusinafis), under the INP’s Criminal Investigation Agency which has a function to provide technical support to investigators in criminal interrogation and investigation.
Pusinafis has a database system that stores all biometric data of Indonesian citizens who have applied for a Certificate of Police Record (known as SKCK) as well as data of perpetrators of crime and recidivists.
The role of electronic Resident’s ID Card data to support the law enforcement can be illustrated as follows.
When a police investigator conducts an investigation of a suspect, they will need to first examine the suspect’s identity,14 to help in the further steps of investigation.15 This identity check is primarily based on the identification owned 13 This task is carried out by the Fingerprint Documentation Subdivision (the Doksiri Subdivision).
14 Article 7 paragraph 1, letter c of the Criminal Procedure Code.
15 Mirna Rahmaniar, Lucky Endrawati and Milda Istiqomah, ‘Analisis Yuridis Data Kependudukan Kartu Tanda Penduduk Elektronik Untuk http://www.e-ktp.com/2011/06/hello-world/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 124 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… by the suspect, which is generally a Resident’s Identity Card.
Prior to the existence of electronic Resident’s ID Cards (e-ID Cards), it was easy to make a fake ID card, and one person could possibly have two identities.
Now, the fact that e-ID Cards apply the principle of one National Identification Number for one ID Card, and contain biometric data, makes it difficult to produce fake electronic e-ID Cards and closes the possibility of someone having two identity cards.16 Thus, in an investigation of a suspect, it is almost impossible for the suspect to give a false identity, because the authenticity of each eID card can be verified through SIAK (Population Administrative Information System),17 and the biometric data of the suspect collected during the investigation can be compared with the biometric data stored in the e-ID card.
Furthermore, in the investigation process implemented to date, especially in order to reveal a criminal whose identity is yet to be known but his facial description or fingerprints have been known, the investigators use comparative data in the form of data of ex-prisoners, recidivists or fugitives that are currently stored in the database of Pusinafis.
However, since there is an MoU between the Indonesian National Police (INP) and the Ministry of Home Affairs,18 the comparative biometric data are no longer limited to the data owned by the Penyidikan Tindak Pidana (Juridical Analysis of Population Data on Electronic Identity Cards for Criminal Investigation)’ (2014) Jurnal Hukum Fakultas Hukum Unversitas Brawijaya, 3-5 <http://hukum.studentjournal.ub.ac.id/index.php/ hukum/issue/view/31>.
16 Ibid.
17 Sistem Informasi Administrasi Kependudukan (SIAK) or Population Administrative Information System is a system for collecting, processing and presentating population data in a quick and accurate manner to produce appropriate population information to assist the government in the Pusinafis (collected in the process of producing Certificates of Police Record (known as SKCK) and data on prisoners/recidivists/fugitives).
INP can now have access to the Ministry of Home Affairs’ database system where biometric data of most Indonesians who are required to have resident’s identity cards are stored.
As for the final step, if there are no data matching the identity of the perpetrator, the police will put the perpetrator in the wanted list.19 Meanwhile, the biometric data that have been collected in the e-passport making process have not been used optimally in the effort to support the law enforcement process because the current system has not contained complete data, and this is because old user data have not been included in the biometric database.20 Furthermore, this section will specifically discuss the scope of cooperation outlined in the memorandum of understanding (MoU) between INP and the Minister of Home Affairs which is then followed up with a cooperation agreement signed by the Indonesian National Police (INP)’s Criminal Investigation Agency and Directorate General of Population and Civil Registration of the Ministry of Home Affairs.
This cooperation is basically established to regulate the use of population data in the effort to improve the effectiveness of police duties in community service and law enforcement.
The scope of this cooperation development and provision of services to the citizens.
18 Memorandum of Understanding between the Minister of Home Affairs of the Republic of Indonesia and the Chief of Indonesian National Police No.
471.12/382/SJ, B/6/I/2013 concerning Cooperation on the Utilization of Resident’s Identification Number, Population Data and Electronic Resident’s Identity Card within the Scope of Duties of Indonesian National Police 19 Ibid.
20 Ibid.
http://hukum.studentjournal.ub.ac.id/index.php/hukum/issue/view/31 http://hukum.studentjournal.ub.ac.id/index.php/hukum/issue/view/31 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 125 covers the utilization of electronic Resident’s ID card data, NIK (National Identification Number) and Population Data.
With this cooperation, the Ministry of Home Affairs as the owner of the database basically grants authorization to access21 the population data including fingerprint data to INP, but this authorization to access is limited to the Indonesia National Police officers in charge of data management (in this case Pusinafis).22 The Population Database recorded through the SIAK contains a number of data and information including: residential data; family data; citizens’ biodata; civil registration data; passport size photo (3 x 4 cm) data, fingerprint data, and citizens’ signatures.23 This cooperation is valid for a period of 5 years (2013-2017) and may be extended upon the agreement of the parties.
Table 1.
Cooperation between the Indonesian National Police’s Criminal Investigation Agency and Directorate General of Population and Civil Registration of the Ministry of Home Affairs of Indonesia in Sharing Data related to Utilization of Electronic Resident’s ID Card Data, NIK (National Identification Number) and Population Data.
No Indonesian National Police’s Criminal Investigation Agency Directorate General of Population and Civil Registration of the Ministry of Home Affairs of Indonesia 1 Grants authorization to have the key to the Secure Access Module (SAM); Provides a card reader and the key to SAM; 2 Authorized to access population data (with the authorization limited to an INP’s dedicated unit with respect to this matter) as needed; Grants access to the data communication network only to the authorized INP unit; 3 Authorized to access fingerprint data as needed, without any time limitation for the purpose of investigation and community service; Monitors the usage and utilization of data such as eID card data, National Identification Number and Population data; 4 Authorization granted is limited to officers in charge of data management; Monitors and grants approval upon a recommendation from INP of officers who are authorized to access data; 5 Authorized to include National Identification Number (NIK) whose data integrity has been verified in every document issued by INP to citizens; Provides technical guidance and assistance, as well as technical personnel to provide guidance and mentoring; 6 Authorized to utilize demographic data (including fingerprint data) to add to the fingerprint data that have been stored in the Centre of Automatic Fingerprint Identification System (Pusinafis) of the INP’s Criminal Investigation Agency; Holds periodic coordination and evaluation meetings between the parties at least once a year; 7 Is required to keep the confidentiality, integrity and authenticity of the data accessed.
The existence of the memorandum of understanding and the cooperation between 21 According to Government Regulation No.
37 of 2007 Article 1 (37) stating that an authorization to access data is granted by the Minister to officers in charge in the Operating and Implementing Agency the Indonesian National Police’s Criminal Investigation Agency and Directorate to be able to access the population database in accordance with the permission granted.
22 Supra note 18.
23 Regulation of the Minister of Home Affairs of the Republic of Indonesia No.25 of 2007 Articles 4-10.
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4/2016 of the ICPO-Interpol… General of Population and Civil Registration of the Ministry of Home Affairs shows that there is a mechanism of information or data sharing and coordination between the institutions that have been formally regulated.
With the formally set out agreement, the cooperation becomes nonincidental, and consequently it can better facilitate the coordination process since each party now has a clear written scope of their respective rights and responsibilities, and the agreement also provides a clear picture of what data to be shared and when such data should be shared.
In implementing the terrorism prevention function (the pre-crime aspect in counter-terrorism), coordination and sharing of information or data among law enforcement institutions and other related institutions, play a crucial role.
Searching, collecting and obtaining sensitive and important data or information help law enforcement officers in carrying out their terrorism prevention function.
The prevention function focuses on early detection, to the maximum extent possible to narrow the terrorists to execute their plans.
Sharing and Exchanging Biometric Data at the International Level One of INTERPOL’s most important functions is to enable police to share crimerelated information.24 The success of an investigation conducted by ICPOINTERPOL relies on the availability of upto-date global data.
Therefore, INTERPOL has criminal databases and this allows INTERPOL’s member countries to be able to have an instant and direct access to a number 24 Interview with Nina Naramurti, International Communication Division of Indonesia’s Interpol NCB Secretariat, International Relations Division of Indonesia National Police, Jakarta, 15 August 2017; See also INTERPOL, ‘Forensics’ of criminal databases.
All of the databases, except IBIN (INTERPOL Ballistic Information Network), can be accessed in real-time through the I-24/7 network connecting databases from INTERPOL to National Central Bureaus (NCBs).25 The INTERPOL web server has been developed and improved so that in addition to being accessible to NCBs, it can also be accessed by front-line law enforcement officers, such as border guards, allowing them to search for databases of wanted persons, stolen and lost travel documents.26 In addition, INTERPOL also has an international notice system that is used to issue international notices for fugitives, suspected criminals, persons associated with or of interest in an ongoing criminal investigation, persons and entities subject to UN Security Council sanctions, potential threats, missing persons and unidentified bodies.
Member countries’ National Central Bureaus (NCBs) may also use INTERPOL’s international notices system to alert law enforcers in other countries about potential threats of crime or to request assistance in dealing with a crime case.
In addition, similar to international notices, there is also a diffusion circulated for the same purpose as a notice but it is circulated directly by member countries or international entities to the countries of their choice.
Diffusions are also recorded in police databases.
International notices and diffusions contain two main types of information: personal details (physical descriptions, photographs, fingerprints, identification number, etc.
); and judicial information (indictments, arrest warrants or judgments and court decisions, <https://www.interpol.int/INTERPOLexpertise/Forensics/Fingerprints>.
25 INTERPOL, ‘Data Exchange’ <https://www.interpol.int/INTERPOLexpertise/Data-exchange>.
26 Ibid.
https://www.interpol.int/INTERPOL-expertise/Forensics/Fingerprints https://www.interpol.int/INTERPOL-expertise/Forensics/Fingerprints https://www.interpol.int/INTERPOL-expertise/Data-exchange https://www.interpol.int/INTERPOL-expertise/Data-exchange Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 127 etc.).
The Secretariat General will publish notices upon a request from member countries’ NCBs or authorized international entities.
All notices are published on the INTERPOL’s website once the compliance checks have been completed.27 At the request of member countries or international entities, extracts of notices may also be published on INTERPOL’s website.
The Secretariat General will only publish international notices and diffusions after the legal requirements are met, for example, a notice will not be published if it violates the INTERPOL’s constitution, which prohibits the organization from undertaking activities of a political, military and religious or racial character.
The INTERPOL forensic database system consists of fingerprints, DNA profiles and facial images.28 Authorized users in member countries may view, submit and cross-check fingerprint records in the fingerprint database via a user-friendly automatic fingerprint identification system (AFIS).
This DNA profile database contains DNA profiles from crime offenders or suspects, crime scenes, missing persons and unidentified bodies.
INTERPOL does not store any nominal data linking a DNA profile to any individual.
Facial Recognition System Database is a database providing a dedicated platform to store and cross-check images in order to identify fugitives, missing persons and persons of interest.
In addition, INTERPOL also has Edison (Electronic Documentation 27 Ibid.
28 INTERPOL, ‘Databases’ <https://www.interpol.
int/INTERPOL-expertise/Databases>.
29 Ibid.
30 Interview with Nina Naramurti, International Communication Division of Indonesia’s Interpol NCB Secretariat, International Relations Division of Indonesia National Police, Jakarta, 15 August 2017.
31 Ibid.
and Information Systems on Investigation Networks) which provides examples of original travel documents to help identify fakes.
Edison contains images, descriptions and security features of original travel and identity documents issued by countries and international organizations.
The entire details of data containing personal data and criminal record history of a person are stored in a database known as the INTERPOL Criminal Information System.29 In this case each INTERPOL member country (NCBs) is authorized to be a user as well as an owner of INTERPOL criminal information system as well as INTERPOL forensic database system and is bound by INTERPOL rules.30 Being a user means that NCBs are authorized to have direct and instant access to INTERPOL’s database, while being an owner means that NCBs may upload criminal data and information onto INTERPOL’s criminal information database system and INTERPOL’s forensic database system.31 Personal Data Protection and Privacy Issue in Large Scale of Biometric System The rise of new technology creates massive data and recently called as big data.
Big data sets from volume, variety, velociy, variability, and veracity32.
Thus, consists of complex and voluminious set of capturing data, processing system, analyzing, storing and updating information privacy33.
In the previous discussion, biometric data obtained from processed fingerprint scan, iris/retinal scan, digital signature, face/face shape 32 Martin Hilbert, ‘Big Data for Development: A Review of Promises and Challenges’ (2016) 34 (1) Development Policy Review 135-174.
33 Danah Boyd and Kate Crawford, ‘Six Provocations for Big Data: A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society’ (2011).
<https://ssrn.com/abstract=1926431> or <http://dx.doi.org/10.2139/ssrn.1926431> https://ssrn.com/abstract=1926431 http://dx.doi.org/10.2139/ssrn.1926431 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 128 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… recognition, dental shape, and voice recognition.
Also it requires set of technique and technology to reveal certain information such as processing, analyzing and storing.
Thus it can be drawn that biometric data meets the criteria of big data.
The debate around big data is that it presents various advantages also disadvantages.
In terms of business sector, big data can be used to identify customer’s behaviour in the dimension of Internet of Thing (IOT).
While in terms of preventing and combating crime as dicussed previously, big data can be used to help preventing and combating crime especially pre-crime activity likewise in INP’s Sisinfo.
While the disdvantages may vary because of the collection process may occurs constantly and unseen, the system creates new authority (artificial agent) and the result of processing data becomes unreliable since individual may change their physical appearance.
As a result, it is a potential threat for personal information authenticity.
In terms of privacy, it defines as the control over personal information34 yet to decide or to disclose personal information in this matter includes any information that identifies a person such as (1) name, address, email address, phone number, (2) race, nationality, ethnicity, origin, color, religious or political beliefs or associations, (3) age, sex, sexual orientation, marital status, family status, (4) identifying number, code, symbol, (5) finger prints, blood type, inherited characteristics, (6) health care history including information on physical/mental disability, (7) educational, financial, 34 Sheri B. Pan, ‘Get to Know Me: Protecting Privacy and Autonomy Under Big Data’s Penetrating Gaze’ (2016) 30(1) Harvard Law Journal & Technology.
35 Bryan A. Gardner, Black’s Law Dictionary (West Group, 8th Ed, 2004).
36 note 34, 241 criminal, employment history, (8) others’ opinion about the individual, and (9) personal views except those about other individuals.35 Furthermore, many legal scholars articulates privacy as the control and claim of individual to communicate their pesonal information with others.36As a result, the legal perspective on privacy is determined by the control of individual to maintain his personal information from collecting, processing, sharing, retaining or even manipulating data.
As discussed previously, biometric data that obtained from processed fingerprint scan, iris/retinal scan, digital signature, face/face shape recognition, dental shape, and voice recognition has resulted in different perspective, challenging traditional value and some its significant contribution to the society’s need on safety and security.
As a new technology, biometric data required of personal information that processed in certain way.
The process is undeniably collides with individual rights since it is reduce certain rights and freedom of individual.
For example, iris scanners that considered as the most reliable biometric yet expensive.
It is painless and can be carried out without the subject even noticing37.
Thus, this circumstance explains the system and technology challenge toward citizen’s privacy.38 The use of biometric data entails discussion concerning personal integrity, autonomy and identity.39 Regarding to the complexity activity on sharing and exchanging biometric data, the foremost impacted aspect is individual as the subject data itself.
Thus, individual as the main 37 Darcie Sherman, ‘Biometric Technology: the Impact on Privacy’, (2005) 1 (1) Comparative Research in Law & Political Economy CLPE Research Paper.
38 Ibid.
39 Nancy Yue Liu,Bio-Privacy: Privacy Regulations and the Challenge of Biometric (Routledge, 2013) Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 129 object of sharing and exchanging activity is facing privacy issue, and post 9/11 makes it more debatable since privacy has been considered as obstacle to security.40At least there are three main challenges to privacy on sharing and exchanging biometric data.
First, the needs to provide security against FTF without infringing citizen’s privacy and its relation to the absence of individual consent; second is a new generation of collective rights as a result of big data and technological change; third, the emergence of artificial agent as a result of the surveillance system.
The need to provide security against FTF without infringing citizen’s privacy is closely related to individual consent.
The collection of personal information must be done fairly, legally and under the knowledge of subject of data or individuals concerned.
It is found that the authority has not fully implemented this principle.
As previously dicussed, the collection process through three different authority in different sectors may have different treatment.
Those respect authorities, however, have different standard in processing data due to their resources and internal regulation.
Although processed in three different authorities, there should be one common issue in giving prior information and notification to the data subject.
In this case, it may be conducted by providing short information on the register form.
Thus, the information at least contains the subject data’s content during eights phases, collecting, processing and analyzing, retaining and storing, acessing, disclosure phase and destruction.
40 Hansen M., Raguse M., Storf K., Zwingelberg H. Delegation for Privacy Management from Womb to Tomb – A European Perspective in Bezzi M., Duquenoy P., Fischer-Hübner S., Hansen M., Zhang G. (eds) Privacy and Identity Management for Life Privacy and Identity (IFIP Advances in Information and Communication, 2009).
Biometric data ownership is merely related to the ethical concerns.41 For this reason, biometric data ownership should be understood as subject data’s authority to control or in this case to authentify their biometric data.
Hence, the process of collecting, analyzing, storing and retaining that involves data contollers should remain limited.
However, technology makes it impossible since the system has its own way to process biometric data and it does not under possession of biometric data owner.
Further, the debate remains on how biometric data owner should able to control their personal information, and how far the authorities remain to limit their control over biometric data owner.
Therefore without clear legal provision, there will be no sufficient legal arguments for subject data to claim in such ownership rights.
While in the issue of technology development, the subject data may be granted by more control over their data due to its complexcity process.
Yet, in this case, the INTERPOL National Central Bureau (NCB) for Indonesia does not have its own database system, but has a resourece sharing pattern with INP’s PUSINAFIS.
There is should be clear information given to biometric data ownership over the existence of the database as well.
Big data allows government to improve public sector administration and assists global organization in analyzing information to develop strategic planning.42 Biometric data as the result of applied technology on biometric process has consequence in the emergence of the artificial agents.
Artificial 41 Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A Comparative Legal Analysis, (Springer, 2013) 42 Tene, Omer and Polonetsky, Jules, Big Data for All: Privacy and User Control in the Age of Analytics (2013) 239 Northwestern Journal of Technology and Intellectual Property <https://ssrn.com/abstract=2149364>.
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4/2016 of the ICPO-Interpol… agents in this case is the the end user of the system and liable for any illicit treatment of personal43.
Thus, it is needed certain standart in order to distinguish such liablity in the biometric data processing since the presence of artificial agents may harm privacy in three ways: over and inacurrate personalization, violation due to process and discrimination.
Over and inacurrate personalization may caused by the system that allowed to display images to identify fugitives, missing persons and persons of interest.
Yet, there’s always changing on physical appereance of individual.
Violation occurs when there is an absence of data protection principles for acquisitioning such data.
Thus, the legal mechanism to ensure privacy is a set of regulation on data protection.44 As a fundamental right, the right to privacy has been recognized in international and regional human rights conventions among others the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and European Commission on Human Rights (ECHR).
Other than that, one of the main international instruments on privacy and data protection is the CoE Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981.
Though this convention only adopted by European countries, nonEuropean countries is allowed to take accession process.
Moreover, Directive 45/46/EC also known as the EU Data Protection Directive also ensures effective privacy protection in order to cope with new development on technology.
This also 43 Samir Chopra and Laurence White, A Legal Theory for Autonomous Artificial Agents (University of Michigan Press, 2011) 73.
44 Jovan Kurbalija, An Introduction to Internet Governance (Diplo Foundation, 6th ed, 2014) 45 GDPR, ‘GDPR Key Changes’,eugdpr (online) <https://www.eugdpr.org/> strengthened by the implementation on the General Data Protection Regulation (GDPR) by May 25, 2018.
The GDPR will introduce a new concept on accountability that requires data controller to be more responsible and able to demonstrate compliance based on data protection principles.45 Beside that, there are also strengthening over data subject rights including right to access, breach notification, right to be forgotten, introducing data portability and privacy by design.46 Indeed privacy as a fundamental right should be protected; however the way of life influences the practice of the privacy itself.
Though in western countries privacy may entitled as important issue, it may have lesser importance in other area or culture.
As a result, there are some obstacles both in national and international level.
In international level there is different implementation on data protection among INTERPOL member countries.
The implementation depends on government approach to govern such issue.
In cyberlibertarian perspective, the approach is considered as self-regulation approach or in the other words is negating government existance, but in its development, this approach is questionable because the presence of the government will influence the decision making and on the technical provision of physical infrastructure of the data protection.47 Meanwhile in the perspective of cyber-paternalism, the government is the single actor (state-centris) in regulating and managing technical provision of physical infrastructure of data protection.48 Thus it caused imbalance power 46 Ibid.
47 Kristen E.Eichensehr, ‘The Cyber-Law of Nations’ (2014) 103 The Georgeton Law Journal 317.
48 M. Fromkin, Lesson learned too well: The Evolution of Internet Regulation, Technical Report, CDT Fellows Focus Series (2011).
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4/2016 of the ICPO-Interpol…| 131 between citizen and government, also creates polarization of western and eastern countries influences.49This debate requires maturity of governance since implementation and enforcefement between and amongst INTERPOL member states is facing different cultural demography, historical legal system, legislative influences, and political enthusiasm.
In national level, regulations relating to data protection are scattered in some areas such as immigration, banking and finance, population and administration, information and electronic transaction that ruled based on sectoral problems.
The existing legal framework concerning data protection refers mainly to the ministerial level instrument enacted by the Ministry of Communication and Information Number 20 Year 2016.
Departmental regulation is basically a delegated or secondary legislation which get its validity from two situations; firstly, it is delegated clearly by the primary legislation to rule further procedural detail or secondly, it is to accommodate discretion in response to public service in the context of conducting administrative power.50 Secondary legislation is used to take the aim of primary legislation further.
It is mainly aiming to introduce technical or detailed provisions necessary for the implementation of primary legislation or to introduce administrative arrangements necessary for primary legislation.
Moreover, secondary legislation or administrative rules is not to introduce new law.
Therefore, these instruments are undeniably inevitable to set up a strong national legal policy regarding data 49 Ibid.
50 Jimly Asshiddiqie, Perihal Undang-Undang (Rajawali Pers, 2010).
51 Shinta Dewi, Nilai Komersial dalam Data Pribadi dan Konsep Perlindungannya, Makalah, 2015 cited in Anggara et al, Menyeimbangkan Hak: protection.
The advantage of this administrative instrument is temporary.
It may somehow fill the need to a more responsive rule to address sectoral problems as secondary legislation does not require to pass parliament deliberative.
Thus, legislations even though provide maximum protection it necessarily agreed by legislators make it slower to take effect.
The idea to tie up data protection principles in a draft bill has been passed through the legislative process since 2016.
The draft bill accommodated four purposes; to protect and to fulfil citizens’ rights on data privacy; to ensure government, business and community organization provide good service for the public; to support the development of industries, technology, information and communication; also, to promote domestic industries competitiveness.51 However, it has not yet take the law-maker attention to even list the bill on the national legislative priority program.
The legislative challenge regarding data protection in Indonesia is seemingly go to different directions.
Euphoria of digitalized era does not emerge the need to protect private data but to bring out details publicly.
Culturally, many people still communicate through digitalized media as honest as they do in actual relations, so they tend to open their private information through this communication without cautions.
These groups of people put trust to the information provided by the media more than before which make them easily affected by hoaxes.
In many cases there are attempts Tantangan Perlindungan Privasi dan Menjamin Akses Keterbukaan Informasi dan Data di Indonesia 2015, <http://icjr.or.id/data/wpcontent/uploads/2015/11/paper-3-finalMenyeimbangkan-Hak.pdf> accessed on December 2016.
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4/2016 of the ICPO-Interpol… to use ambiguous tread as political commodities that benefits some groups.52 Information technology experts have also underlined the danger of the massive dispersion of racial hoaxes to create chaos and horizontal conflict that apparently escalating public distrust to the government.
This tension draw legislator attention to muffle the flame rather than to finish the task to legislate on the theme that emerge rights to privacy and the protection on the use of private data.
This fact in turn influences the progress of the initiation of further legal framework for data protection in Indonesia.
Implementation of ‘Bali Resolution’ as well as Challenges and Obstacles in Biometric Data Collection, Storage and Sharing with Respect to Personal Data Protection With respect to ‘Bali Resolution’ 2016, this study found that Bali Resolution 2016 has not been fully implemented to date.
INTERPOL NCB for Indonesia is currently developing a system for sharing biometric data, and coordinating with government agencies, especially Immigration Agency and the relevant unit in Indonesia National Police, namely the Centre of Automatic Fingerprint Identification System (known as Pusinafis).
To date, INTERPOL NCB for Indonesia has not had its own dedicated database system because the currently available system is only the biometric database system in the INP’s Centre of Automatic Fingerprint Identification System (Pusinafis).
Therefore, in relation to FTFs 52 BBC Indonesia, ‘Kasus Saracen: Pesan kebencian dan hoax di media social ‘memang terorganisir’, bbc (online) 24 August 2017 <http://www.bbc.com/indonesia/trensosial41022914>.
53See the development of a pilot project on sharing intelligence INTERPOL, ‘Terrorism intelligence shared via INTERPOL’s Project Kalkan prevention and biometric data sharing, the current practice is that whenever there is a request from INTERPOL for data or information on terrorists involving Indonesian citizens, NCB Indonesia will coordinate with INP’s Pusinafis, Densus 88 (Indonesian Special Forces CounterTerrorism Squad), Directorate General of Immigration and the Ministry of Home Affairs to obtain biometric data (with the data shared being limited to names, photos and fingerprints) as comparative data.53 Each member country may have a biometric system with various purposes such as to reduce the cost of immigration services, reduce cases of identity fraud, prevent illegal immigrants and help counter terrorism.
Generally, countries participating in ‘Bali Resolution’ have used (proposed to use) biometric recognition systems for various purposes, among others, travel-related purposes, immigration, citizen ID cards or national identification documents (passports, national identity cards, or both), criminal investigations, social security identification and disaster relief systems.
In the collection and storing processes which are then followed by the establishment of biometric databases, there are challenges frequently encountered in the efforts to protect the confidentiality of personal data54 and there is an ethical aspect mainly related to some matters, such as who are authorized to access the data, the integrity of data contained in the central database system, data protection for third parties, discrimination issues, data storage restrictions and use of strengthens global ‘early warning system’’, Interpol (online) 10 July 2017 <https://www.interpol.int/News-andmedia/News/2017/N2017-090>.
54 Personal data constitute certain data of individuals that are stored and maintained, and the integrity and confidentiality of which is kept and protected.
http://www.bbc.com/indonesia/trensosial-41022914 http://www.bbc.com/indonesia/trensosial-41022914 https://www.interpol.int/News-and-media/News/2017/N2017-090 https://www.interpol.int/News-and-media/News/2017/N2017-090 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 133 data for crime prevention as well as its impact on privacy.
At the international level, there are more significant challenges with respect to legal and privacy issues considering the fact that the impact on data protection and privacy can affect a far greater number of individuals compared to the number of individuals listed in the national database.
In addition, not all countries are fully committed to privacy right protection as contained in a number of different treaties and agreements.
In this research, it was found that with respect to the use of biometrics to support the law enforcement process, and the efforts to fight against crimes and terrorism, the INP’s Centre of Automatic Fingerprint Identification System (Pusinafis) plays a central role.
Besides having its own biometric database, Pusinafis is also authorized to access data in the database center of Directorate General of Population and Civil Registration of the Ministry of Home Affairs.
Demographic data that have been accessed from the data center of the Ministry of Home Affairs can be used to develop and can be added to the fingerprint database stored in the Pusinafis of INP’s Criminal Investigation Agency.
Based on the Regulation of the Minister of Home Affairs No.
25 of 2011, access is only granted to data managers/operators who meet certain criteria, and the access is granted upon approval from the Minister/Governor/Regent/ Mayor only.55 The data operators, managers and administrator are bound by the laws and professional codes of ethics.
Therefore, each 55 See Articles 27-32, 36 of the Regulation of the Ministry of Home Affairs Number 25 of 2011.
56 Interview with Nurul Tristiati, INP’s Pusinafis, Jakarta, 16 August 2017 57 Ibid.
officer is required to act professionally when performing their duties and uphold the oath of office.56 In respect of the data storage, biometric data that have been collected and stored in the database system of Pusinafis will be stored permanently or in other words there is no specific time frame or expiration period for the biometric data stored and there are no methods or rules for the deletion or change of data.57 When biometric data are collected (for example in the process of fingerprint recording), there are generally no mechanism or procedures or notification served to the bearers with respect to the use of their biometric data, as well as their rights and obligations over their recorded biometric data.58 Generally, what these bearers know is that their biometric data collected in the process of making electronic Resident’s ID Cards, e-Passports and Certificates of Police Record will be used only for administrative purposes.59 So far, the biometric data stored in the database of Pusinafis by the law enforcement officers are only used as comparative data.
There has not been any follow-up in the form data processing, for example big data processing for crime prediction or other types of data processing.60 The data sharing agreement between the Directorate General of Population and Civil Registration of the Ministry of Home Affairs and the INP’s Criminal Investigation Agency, has provided a clear framework with respect to the type of data to be shared and when the data sharing will be done.61 58 Ibid.
59 Ibid.
60 Ibid.
61 See discussion point 3.
Biometric Data Sharing at the National Level Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 134 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… However, there has not been any mechanism on data retention.62 The above discussion shows that in the collection, recording and storage of biometric data there are still a number of issues that indicate weaknesses in the protection of personal data, and there are indications of violations.
This is mainly due to the fact that personal data protection is not clearly regulated or has not been formally regulated.
In general, there are at least a number of challenges in biometric data or information sharing, which among others include different regulations in each member country of ICPO-INTERPOL, ethical issues and unintegrated systems.
In addition, a number of factors such as differences in standards, technical equipment, biometric technology capabilities possessed by each member country, as well as differences in policies and regulations in each member country primarily with respect to data protection and privacy, have become a particular challenge in the implementation of Bali Resolution.63 In the efforts to identify, gather, store and share biometric 62 William C. Buhrow, Biometrics in Support of Military Operations: Lessons from the Battlefield (CRC Press Taylor & Francis Group, 2017).
63 See note 9.
64 Guidelines for the Regulation of Computerized Personal Data Files Adopted by General Assembly resolution 45/95 on 14 December 1990 <http://www.refworld.org/pdfid/3ddcafaac.pdf>.
65 European Commission, ‘Data protection Rules for the protection of personal data inside and outside the EU’ <http://ec.europa.eu/justice/dataprotection/index_en.htm>.
66 OECD, ‘The OECD Privacy Guidelines’ <http://www.oecd.org/sti/ieconomy/49710223.pd f> 67 Universal Declaration of Human Rights <http://www.un.org/en/universal-declarationhuman-rights/>.
68 The 1951 Convention Relating to the Status of Refugees; the 1967 Protocol Relating to the Status of Refugees; Resolution 2198 (XXI) adopted by the United Nations General Assembly available at information, there are certainly gaps from both in the technical and legal aspects.
Different regulations applied by each ICPO-INTERPOL member country, for example, privacy protection systems of member country data, including methods of access and correction to personal information held by government agencies seem to vary greatly.
This data privacy protection system may also be operated within the framework of different regional and international privacy principles such as the United Nations Guidelines for the Regulation of Computerized Personal Data Files,64 EU General Data Protection Regulation,65 OECD Guidelines on the Protection of Privacy and Transborders Flows of Personal Data.66 In addition, ICPO-INTERPOL member countries may also have international obligations including non-refoulment obligations under the Universal Declaration of Human Rights,67 and where applicable, the Refugee Conventions,68 the International Covenant on Civil and Political Rights,69 Convention against Torture,70 and the United Nations Convention against Transnational Organized Crime.71 <http://www.unhcr.org/protection/basic/3b66c2aa 10/convention-protocol-relating-statusrefugees.html>.
69 International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49 <http://www.ohchr.org/en/professionalinterest/pa ges/ccpr.aspx >.
70 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1) <http://www.ohchr.org/EN/ProfessionalInterest/P ages/CAT.aspx >.
71The United Nations Convention against Transnational Organized Crime, adopted by General Assembly resolution 55/25 of 15 November 2000, < http://www.refworld.org/pdfid/3ddcafaac.pdf http://ec.europa.eu/justice/data-protection/index_en.htm http://ec.europa.eu/justice/data-protection/index_en.htm http://www.oecd.org/sti/ieconomy/49710223.pdf http://www.oecd.org/sti/ieconomy/49710223.pdf http://www.un.org/en/universal-declaration-human-rights/ http://www.un.org/en/universal-declaration-human-rights/ http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 135 In addition to legal variables that may vary among member countries, there may also be an overlap among the multilateral mechanisms that have existed before the adoption of Bali Resolution, for example Eurodac (the EU’s multinational biometric data sharing mechanism),72 Five Country Conference (FCC),73 INTERPOL I-24/7 communication system and Automated Fingerprint Identification System (AFIS),74 Agreement on Information Exchange and Establishment of Communication among some ASEAN countries,75 UNODC Voluntary Reporting System on Migrant Smuggling and Related Conduct (VRSMSRC) as well as informal and ad-hoc arrangements among countries.76 Biometric data sharing agreements have been established through, among others, Five Countries Conference (FCC), which involved the United Kingdom, the United States, Canada, Australia and New Zealand.77 These countries have agreed to share biometric data collected from visa applications, and other immigration-related data collected from prospective immigrants to be used to jointly combat illegal immigration under High Value Data Sharing (HVDS) Protocol.78 https://www.unodc.org/unodc/en/treaties/CTOC/ > 72 European Commission, ‘Identification of applicants (EURODAC)’ <https://ec.europa.eu/homeaffairs/what-we-do/policies/asylum/identificationof-applicants_en>.
73 Home Office, ‘Biometric data-sharing process (Five Country Conference (FCC) data-sharing process)’ 2016, <https://www.gov.uk/government/uploads/system /uploads/attachment_data/file/557896/biometricdata-sharing-v7.0.pdf> 74 note 24.
75Agreement on Information Exchange And Establishment of Communication Procedures <http://www.asean.org/storage/images/archive/17 346.pdf> 76 UNODC, Voluntary Reporting System on Migrant Smuggling and Related Conduct (VRS-MSRC): This data sharing primarily aims to enhance security and monitor criminal activities in FCC countries and to track suspected terrorists and criminals who are fleeing or intend to avoid legal action.79 However, the request to share such biometric data must first meet certain requirements such as being able to provide evidence that the individual has traveled from an FCC country or has previously been arrested in one of the FCC countries before such can be submitted to another member country.80 Furthermore, it is important to note that no information is shared about the individual concerned unless there is a match of information in terms of the individual’s fingerprint.81 HVDS has also explained the important procedures each country should follow to ensure a safe information sharing process.82 One of these guidelines instructs the FCC countries to safely delete the data that they have obtained within a certain period of time.83 Furthermore, an example of biometric data sharing that has been conducted bilaterally is between the United Kingdom and Ireland through a Memorandum of Understanding to enhance their ability to detect illegal immigrants in common travel area within the jurisdiction of VRS-MSRC launched in 2013, UNODC (online) <https://www.unodc.org/southeastasiaandpacific/ en/vrs-msrc.html; https://www.unodc.org/southeastasiaandpacific/e n/2013/07/vrs-launch/story.html>.
77 Home Office, ‘Biometric data-sharing process (Five Country Conference (FCC) data-sharing process)’ (2016), https://www.gov.uk/government/uploads/system/ uploads/attachment_data/file/557896/biometricdata-sharing-v7.0.pdf 78 Ibid.
79 Ibid.
80 Ibid.
81 Ibid.
82 Ibid.
83 Ibid.
https://www.unodc.org/unodc/en/treaties/CTOC/ https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/identification-of-applicants_en https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/identification-of-applicants_en https://ec.europa.eu/home-affairs/what-we-do/policies/asylum/identification-of-applicants_en https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557896/biometric-data-sharing-v7.0.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557896/biometric-data-sharing-v7.0.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557896/biometric-data-sharing-v7.0.pdf http://www.asean.org/storage/images/archive/17346.pdf http://www.asean.org/storage/images/archive/17346.pdf https://www.unodc.org/southeastasiaandpacific/en/vrs-msrc.html https://www.unodc.org/southeastasiaandpacific/en/vrs-msrc.html https://www.unodc.org/southeastasiaandpacific/en/2013/07/vrs-launch/story.html https://www.unodc.org/southeastasiaandpacific/en/2013/07/vrs-launch/story.html https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557896/biometric-data-sharing-v7.0.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557896/biometric-data-sharing-v7.0.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/557896/biometric-data-sharing-v7.0.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 136 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… both countries and also the Isle of Man and the Channel Islands.84 The MOU allows the UK and Ireland to share and exchange biometric data and information, which will be used to make immigration-related decisions.85 Particularly in the context of Indonesia, the most obvious obstacles and challenges are the lack of regulations on personal data protection, and the fact that the biometric data system is relatively new and the databases have not been fully developed, which may lead to possibilities of violations against personal data protection when Indonesia attempts to fulfill its obligations as a member country of ICPO-INTERPOL to share existing biometric data.
Technically speaking, the obstacles and challenges can be seen from the fact that the automatic fingerprint identification system is still centered in the INP’s headquarters as the holder and manager of biometric databases to support the law enforcement throughout Indonesia.
The Indonesia National Police’s Centre of Automatic Fingerprint Identification System (Pusinafis) still has structural barriers in its organization (INP’s internal bureaucracy).
The structural barriers of this organization seemed to have weakened Pusinafis-related communications between INP’s headquarters and police offices at the local level (Sectoral Police, Municipal/Regency Police, Provincial Police).
For example, during the process of fingerprint recording through the process of producing Certificates of Police Record at the local police office (Sectoral Police, Municipal/Regency Police, Provincial Police), Pusinafis has no authority to directly direct or instruct local officers to 84 Seamus Eagan, ‘UK and Ireland to share biometric data to fight illegal immigration’ Secure Id News (online) 20 December 2011 <https://www.secureidnews.com/news-item/ukpromptly report or upload the recorded data to the central database of Pusinafis.
As an illustration, if in a day there are 100 Certificates of Police Record applicants whose fingerprints are recorded at a Municipal/Regency Police, Pusinafis cannot control or ensure that all of the biometric data recorded on the same day are entirely reported or uploaded to the central database system (Pusinafis) by the officers who recorded the said fingerprints at the Municipal/Regency Police.
In addition, the telecommunication network is still inadequate, especially in the Sectoral Police and Municipal/Regency Police levels.
This is one of the barriers in the collection, recording, storage and sharing of biometric data.
IV.
CONCLUSIONS AND SUGGESTIONS Bali Resolution encourages each member country of ICPO-INTERPOL to systematically collect and store biometric information that is an integral part of the effort to share terrorist profile data that has been done through the ICPO-INTERPOL’s channel.
The focus of systematic collection and storage of biometric information is the unique identifiable attributes, which include fingerprints and DNA profiles.
In Indonesia, the collecting, recording and storing biometric data are through three doors or processes, i.e.
: 1) the process of making electronic Resident’s ID Cards under the coordination and supervision of the Ministry of Home Affairs (Directorate General of Population and Civil Registration); 2) the process of making ePassports under the coordination and supervision of the Ministry of Law and and-ireland-to-share-biometric-data-to-fightillegal-immigration/>.
85 Ibid.
https://www.secureidnews.com/news-item/uk-and-ireland-to-share-biometric-data-to-fight-illegal-immigration/ https://www.secureidnews.com/news-item/uk-and-ireland-to-share-biometric-data-to-fight-illegal-immigration/ https://www.secureidnews.com/news-item/uk-and-ireland-to-share-biometric-data-to-fight-illegal-immigration/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol…| 137 Human Rights (Directorate General of Immigration); 3) the process of making Certificates of Police Records under the coordination and supervision of INP (Centre of Automatic Fingerprint Identification System of INP’s Criminal Investigation Agency).
Of the three doors, the largest amount of biometric data is collected through the making of Resident’s ID Cards.
One of the functions of biometric data is to support law enforcement and crime prevention processes, as set forth in Article 58 paragraph 4 of Law No.
24 of 2013 on Amendment to Law Number 23 of 2006 on Population Administration, which regulates the utilization of the population data collected from electronic Resident’s ID Cards.
Thus, in accordance with the mandate of Law, the Ministry of Home Affairs and INP have signed a memorandum of understanding (MoU) on the utilization of electronic Resident’s ID Card data.
This agreement has provided a framework and guidelines for instituting biometric data sharing mechanisms between the two institutions to improve the effectiveness of law enforcement and crime prevention functions.
The scope of this cooperation covers the utilization of electronic Resident’s ID Card data, National Identification Number (NIK) and Population Data.
Through this cooperation, the Ministry of Home Affairs as the owner of the database basically grants authorization to INP to access the population data including fingerprint data, but this right to access is only granted to officers in charge as data managers in INP (in this case Pusinafis or INP’s Centre of Automatic Fingerprint Identification System).
Meanwhile, the passport biometric database system has not been fully developed, and thus, it has not been able to provide an optimum support in law enforcement and crime prevention processes since the old users’ data have not been included in the biometric database.
With respect to the 2016 Bali Resolution, this study found that the 2016 Bali Resolution has not been fully implemented.
NCB Indonesia is currently building a system related to biometric data sharing and coordinating with government agencies, especially Immigration Agency and the relevant unit in INP namely the Centre of Automatic Fingerprint Identification System (Pusinafis).
To date, INTERPOL NCB for Indonesia has not had its own dedicated database system because the currently available system is only the biometric database system in the INP’s Pusinafis.
Therefore, in relation to a defense against FTFs and biometric data sharing, the current practice is that whenever there is a request from INTERPOL for data or information on terrorists involving Indonesian citizens, NCB Indonesia will coordinate with INP’s Pusinafis, Densus 88 (Indonesian Special Forces CounterTerrorism Squad), Directorate General of Immigration and the Ministry of Home Affairs to obtain biometric data (with the data shared being limited to names, photos and fingerprints) as comparative data.
In general, there are a number of challenges in biometric data or information sharing, which cover, among others a variety of regulations binding each member country of ICPO-INTERPOL, ethical issues and unintegrated systems.
In addition, there are also other challenges such as differences in standards, technical equipment, biometric technology skills possessed by each member country, as well as differences in policies and regulations in each member country Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 138 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… primarily with respect to data protection and privacy.
In the biometric data collection, recording and exchange or sharing, there are indications of violations of personal data protection and privacy, owing to, among others lack of regulations on data retention, consent, processing, notification and disclosure mechanism.
Meanwhile, the most obvious obstacles and challenges are the absence of regulations on personal data protection and privacy, in addition to the fact that the biometric data system is still relatively new and the database has not been fully developed.
While discrimination is occurring when there is innacurate personalization that cause different treatment over biometric data owner, the result of this study found that the system has been not fully implemented, the potential threat over artificial agents should be noticed more by the authority to be diminished in the future in analysing and developing strategic plan against FTF.
This seems to have led to cases of violations when Indonesia attempts to fulfill its obligations as a member country of ICPOINTERPOL to share existing biometric data.
Therefore, laws and regulations related to the personal data protection becomes an urgent need to be addressed immediately.
The INP’s Centre of Automatic Fingerprint Identification System (Pusinafis) has a central role as a holder and manager of biometric databases to support law enforcement throughout Indonesia.
Thus, INP needs to improve the efficiency of its internal bureaucracy efficiency to facilitate the work of Pusinafis in the process of recording, storing and utilizing biometric data.
The biometric data recorded, collected and stored are big data, but to date, in the law enforcement and crime prevention processes, these big data are only used as comparative data.
In fact, the big data have a great potential to be processed and analyzed, such as to support crime prediction analysis.
However, the innovation ethics, in this case the protection of citizens’ personal data remains of paramount importance and must be guaranteed by laws.
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4/2016 of the ICPO-Interpol…| 141 Privacy Management from Womb to Tomb – A European Perspective in Bezzi M., Duquenoy P., FischerHübner S., Hansen M., Zhang G. (eds) Privacy and Identity Management for Life Privacy and Identity (IFIP Advances in Information and Communication, 2009) Shinta Dewi, Nilai Komersial dalam Data Pribadi dan Konsep Perlindungannya, Makalah, 2015 cited in Anggara et al, Menyeimbangkan Hak: Tantangan Perlindungan Privasi dan Menjamin Akses Keterbukaan Informasi dan Data di Indonesia 2015, <http://icjr.or.id /data/wpontent/uploads/2015/11/paper-3-finalMenyeimbangkan-Hak.pdf> International Treaties And Legislations Universal Declaration of Human Rights <http://www.un.org/en/universaldeclaration-human-rights/>.
The 1951 Convention Relating to the Status of Refugees; the 1967 Protocol Relating to the Status of Refugees; Resolution 2198 (XXI) adopted by the United Nations General Assembly available at <http://www.unhcr.org/protection/basi c/3b66c2aa10/convention-protocolrelating-status-refugees.html> International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, in accordance with Article 49 <http://www.ohchr.org/en /professionalinterest/pages/ccpr.aspx> Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987 <http://www.ohchr.org/EN /ProfessionalInterest/Pages/CAT.aspx >.
The United Nations Convention against Transnational Organized Crime, adopted by General Assembly resolution 55/25 of 15 November 2000, < https://www.unodc.org/unodc/en/treati es/CTOC/ > Newspaper Bramantoro, Toni, ‘Koordinasi Antar Negara Adalah Kunci Untuk Mencegah Aksi Foreign Terrorist Fighter’, Tribunnews (online), 11 August 2016 <https://www.
tribunnews.com/nasional/2016/08/11/ koordinasi-antar-negara-kunci-untukmencegah-foreign-terrorist-fighter> Lee, Justin, ’INTERPOL says Lack of Biometric Data on Terrorists a Security Vulnebaribility’, Biometricupdate (online), 10 November 2016 <http:// www.biometricupdate.com/201611/IN TERPOL-says-lack-of-biometric-dataon-terrorists-a-security-vulnerability Paripurna, Amira, ‘Time to Improve Info Sharing and Law,’ Jakarta Post (online) 28 January 2016 < http://www.thejakartapost.com/news/2 016/01/28/time-improve-info-sharingand-law.html > Saifulloh, Muhammad, ‘BNPT Pimpin Negara ASEAN Bahas Foreign Terrorist Fighter’, Okezone (online), 11 August 2016, <http://news.okezone.com/read /2016/08/11/337/1460830/bnpthttp://www.un.org/en/universal-declaration-human-rights/ http://www.un.org/en/universal-declaration-human-rights/ http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html http://www.ohchr.org/en%20/professionalinterest/pages/ccpr.aspx http://www.ohchr.org/en%20/professionalinterest/pages/ccpr.aspx http://www.ohchr.org/EN%20/ProfessionalInterest/Pages/CAT.aspx http://www.ohchr.org/EN%20/ProfessionalInterest/Pages/CAT.aspx https://www.unodc.org/unodc/en/treaties/CTOC/ https://www.unodc.org/unodc/en/treaties/CTOC/ http://www.thejakartapost.com/news/2016/01/28/time-improve-info-sharing-and-law.html http://www.thejakartapost.com/news/2016/01/28/time-improve-info-sharing-and-law.html http://www.thejakartapost.com/news/2016/01/28/time-improve-info-sharing-and-law.html http://news.okezone.com/read%20/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter http://news.okezone.com/read%20/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 142 | Paripurna, Indriani, Widiati Implementation of Resolution no.
4/2016 of the ICPO-Interpol… pimpin-negara-asean-bahas-foreignterrorist-fighter> BBC Indonesia, ‘Kasus Saracen: Pesan kebencian dan hoax di media social ‘memang terorganisir’, BBC (online) 24 August 2017 <http://www.bbc.com/ indonesia/trensosial-41022914> National Legsilations Undang-undang Nomor 23 Tahun 2006 tentang Administrasi Kependudukan (Tambahan Lembaran Negara Republik Indonesia Nomor 4674) Undang-undang Nomor 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik (Tambahan Lembaran Negara Republik Indonesia Nomor 4843) Undang-undang Nomor 19 Tahun 2016 tentang Perubahan Atas Undangundang Nomor 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik (Tambahan Lembaran Negara Republik Indonesia Nomor 5952) Undang-undang Nomor 14 Tahun 2008 tentang Keterbukaan Informasi Publik (Tambahan Lembaran Negara Republik Indonesia Nomor 4846) Peraturan Pemerintah No 82 Tahun 2012 tentang Penyelenggaran Sistem Transaksi Elektronik (Tambahan Lembaran Negara Republik Indonesia Nomor 5348) http://news.okezone.com/read%20/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter http://news.okezone.com/read%20/2016/08/11/337/1460830/bnpt-pimpin-negara-asean-bahas-foreign-terrorist-fighter http://www.bbc.com/%20indonesia/trensosial-41022914 http://www.bbc.com/%20indonesia/trensosial-41022914
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 1 Volume 2(S) No.
1 (2015) GOVERNMENTAL CONTROL OR BIG COMPANY CONTROL IN AUSTRALIA ON JOURNALISTIC PRACTICE: WHICH IS WORSE AND WHERE ARE THE PARALLELS?
Elizabeth Sinclair Law School, University of Wollongong Abstract Restricted media freedom often happens in Asian States.
Malaysia and Singapore, for instance, have experienced restriction on media freedom due to a number of reasons, which include democratic type of the state itself and the nature of government.
While Malaysia and Singapore democratic pattern tend to adopt what so-called ‘pseudo-democratic’, the freedom of media is mostly control by the government.
This condition is different to those countries with ‘established-democratic’ such as Australia.
Although government control in media freedom is less, however, big companies seem to have more control in media freedom.
In this paper, it will be examined as to which is worse; blatant government intervention resulting in journalist selfmonitoring 1 or big company ownership in prominent media publications resulting in bias and ill-informed, ill-balanced pieces.
It will also be concluded as to whether the restrictions imposed upon journalists in Singapore and Malaysia are only evident in these two countries, or whether journalists in other countries, including ‘more’ developed nations also practice self-monitoring.
Keywords: Media Freedom, Pseudo-Democratic, Established-Democratic, I.
INTRODUCTION Amanda Whiting and Timothy Marjoribanks argued in their chapter Media professional’s perceptions of defamation and other constraints upon news reporting in Malaysia and Singapore 2 that Malaysia and Singapore experience, due to a number of factors, restricted media freedom many of these factors relating to the semi-democratic nature of Malaysian and Singaporean government.
This being, that there is still an element of autocratic control exerted by the government on media publications and that this is supported by the rigid 1 Ibid.
2 Amanda Whiting and Timothy Marjoribanks, „Media Professionals' Perceptions of Defamation and other Constraints upon News Reporting in Malaysia and Singapore‟ in Andrew Kenyon, Tim Marjoribanks, Amanda Whiting (eds.)
Democracy, Media and Law in Malaysia and Singapore (Routledge, London, 2013), 129156.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 2 Volume 2(S) No.
1 (2015) court system which has been generous and stringent in its awarding of damages in defamation suits brought by individuals against journalists.
Whiting and Marjoribanks define the system in saying that: „Both Singapore and Malaysia are best described as illiberal regimes, semior pseudo-democracies, where the media is controlled or curtailed by state laws, policies and practices directed to limiting, rather than protecting, a space for democratic discourse.‟ 3 In their argument, they have inadvertently (or perhaps advertently depending on personal view, economic view and political context) depicted that this problem is inherent in Malaysia and Singapore because of its semi-democratic nature and that media restrictions of this nature are mostly prolific in pseudo-democracies, or that such democratic systems are conducive to restricted media freedom.
They have argued that these problems are unique to Singapore and Malaysia.
It could, however, be argued that many „first world‟ or „fully established‟ democracies experience similar problems in media reporting and that these problems are not centralised to these two countries or other semi-autocratic democracies.
This paper looks to establish whether such a statement could be supported, in that a first world democracy such as Australia could be paralleled in its journalistic restrictions or non-freedom.
An important distinction, however, must be made immediately: countries such as Malaysia and Singapore suffer from media restrictions as a result of blatant government control, subsequently also receiving labels such as „pseudo-democracy‟.
Other democracies in the first world – Australia, the UK and the USA for example, do not have such „blatant‟ government intervention.
Instead, the media restrictions in these nations are a result of big company influence and intervention.
In this paper it will be examined as to which is worse; blatant 3 Ibid, 131.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 3 Volume 2(S) No.
1 (2015) government intervention resulting in journalist self-monitoring 4 or big company ownership in prominent media publications resulting in bias and ill-informed, ill-balanced pieces.
In this instance, Australia will be exemplified.
Subsequently, it will be concluded as to whether the restrictions imposed upon journalists in Singapore and Malaysia as reported upon by Whiting and Marjoribanks are only evident in these two countries, or whether journalists in other countries, including „more‟ developed nations also practice self-monitoring.
Although it would be prudent to also look at „less established‟ or third world democracies in this argument to established a wider field of research, it would be unlikely to enlighten the argument.
Third world and establishing democracies have an almost cemented media problem.
5 Stating as such in this argument would only serve to point out the obvious.
Therefore, Australia will be used as a point of comparison.
This will aid in concluding whether Malaysia and Singapore truly do experience these problems in a unique way, or whether some problems are not unique to pseudo-democracies at all.
Through further research of media standards in Australia, it will be possible to conclude whether these media-based problems are only synonymous to the situations in Malaysia and Singapore, or whether commentary on this topic of restriction in media reporting and journalist self-monitoring should be extended to include other first world democracies in the discussion, and that Malaysia and Singapore should not be identified as unique.
II.
MATERIALS AND METHOD This paper applies legal instruments relating to journalist restriction in different type of democracy countries.
The comparative study was conducted in analyzing state-practice restrictions on media freedom, in „pseudo-democratic‟ state, such as Malaysia and Singapore 4 Ibid.
5 Cultural Survival, Inc. Media Autonomy in the Third World, Cultural Survival, February 2010, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world viewed 28 May 2014. http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 4 Volume 2(S) No.
1 (2015) and in „establish-democratic‟ state, such as Australia.
It looks at the implementation on how such states control media freedom.
Certain articles in mass media, as well as academic papers articles are also extensively used.
The comparative analyses will make crucial contribution on which one is better in protecting freedom of media.
Furthermore, legal materials applied in this paper include primary sources and secondary sources as well as tertiary sources relating to freedom of media and democracy.
Since this paper focuses more on state-practice, it is the practice of states mentioned will be frequently discussed.
III.
RESULT AND DISCUSSIONS Journalistic Facts in Malaysia, Singapore and Australia As stated above, there is an extremely important distinction that needs to be made and understood in regards to this argument: in Malaysia and Singapore, journalistic problems occur because of governmental pressure; whilst in Australia it is „big companies‟ who are applying the pressure.
An important notion in this paper is to explore which is worse, or perhaps reveal that they are equally as bad in promoting (and restricting) journalistic freedom.
In Australia, two media outlets shall be exemplified; News Corp Australia, which is owned by Rupert Murdoch and controls 70% of all newspapers circulated in Australia (and owns 23%-33% of all printed media sources in the country) and Fairfax Media.
6 One can see from these facts that Murdoch and his empire will be an important point of focus in this paper.
News Corp Australia is evidently a big business that wields political power in Australia.
The second media outlet that will be considered in this paper is Fairfax Media.
Fairfax Media is the second largest media outlet in Australia.
The largest shareholder in Fairfax Media is mining magnate Gina Rinehart who owns the absolute maximum amount of shares possible before a takeover bid 6 Terry Flew, FactCheck: does Murdoch own 70% of newspapers in Australia?,The Conversation, 8 August 2013 http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 viewed 26 May 2014. http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 5 Volume 2(S) No.
1 (2015) must be offered.
7 These two media outlets have a huge monopoly on the news publications distributed throughout the company.
These two media outlets serve as prime examples in exploring big business influence in the media in Australia, as opposed to governmental influence (even though the line between the two is arguably just as blurred in Australia as Whiting and Marjoribanks argue is the case in Malaysia and Singapore 8 ).
The newspapers (as opposed to magazines or other news mediums) printed by these outlets will be the focus of this paper, as Whiting and Marjoribanks refer only to print media in regards to their assessment of media control in their chapter – reference to online media is only made in regards to the fact that it is not as tightly regulated due to the fluid and uncontrollable nature of the system and, therefore, is mostly free of these constrictions.
This was exemplified through their examination of the career of Marina Mahathir who wrote for the Malaysian newspaper The Star 9 and was further expounded upon in great detail by Cherian George in his book, Contentious Journalism and the Internet: Towards Democratic Discourse in Malaysia and Singapore.
10 This notion of less restrictive practice in online journalism, blogs especially, is mostly a global (with exceptions) observation.
In returning to the importance of print media in this paper, David McKnight is his book Rupert Murdoch: An Investigation of Political Power 11 emphasises the importance of print media by stating that, „In an age when newspapers are in decline, do such [media] control matter?
The answer is yes.
They set the political agenda for radio, television and online news.
Newspapers 7 Kirsty Simpson, Gina Rinehart lifts stake in Fairfax to 15% as pressure for board seats builds, The Sydney Morning Herald, June 5 2012, http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15as-pressure-for-board-seats-builds-20120614-20d5n.html viewed 26 May 2014.
8 Whiting and Marjoribanks, above n 2.
9 Ibid, 132.
10 Cherian George, Contentious Journalism and the Internet, Towards Democratic Discourse in Malaysia and Singapore, (Singapore University Press, 2006).
11 David McKnight, Rupert Murdoch: An Investigation of Political Power, (Allen &Unwin, 2012).
http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 6 Volume 2(S) No.
1 (2015) achieve the agenda-setting role because they have the biggest newsrooms and every day they originate far more stories than any other news medium.‟ 12 This excerpt supports the importance of considering print media throughout the argument in this paper and emphasises why Whiting and Marjoribanks have done so in their chapter.
The question is now to look at how big company control of these newspapers in Australia, an „established‟ democracy, affects journalistic practice and whether parallels can be established between democratic media practice in Australia and the restrictions placed on journalists by government in „pseudo-democratic‟ Malaysia and Singapore.
In his book The Politics of Information: Problems of Policy in Modern Media 13 Anthony Smith states that, „…in [western media‟s] broadest context, we are seeing a single complex of institutions, private, public and mixed, evolving in modern societies as mediators of information and entertainment, mutually dependant, mutually abrasive, with functional overlaps and newly emerging demarcations.
This is thus a kind of cultural-informational complex growing at the heart of modern societies, which does not in itself spell any kind of doom but which profoundly alters the way in which we should think about the role of the government and the press.‟ 14 He continues on to comment on the notion of objectivity in western media, and touches upon one of the important notions in the paper; that of the difficulty of achieving journalistic objectivity in light of the now numerous factors which have to be considered in modern media.
In Malaysia and Singapore, journalists are subjected to the added pressures applied by the government in regards to preserving the reputation of government officials/party politics and the stringent application of defamation damages by the courts, whilst in Australia we see major 12 Ibid, 7-8.
13 Anthony Smith, The Politics of Information: Problems of Policy in Modern Media, (The Macmillan Press Ltd, 1978).
14 Ibid, 159.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 7 Volume 2(S) No.
1 (2015) newspapers, such as The Daily Telegraph running front pages such as „Australia Needs Tony‟ 15 or „Kick This Mob Out‟ 16 which are evidently a reflection of media tycoon Rupert Murdoch‟s political „muscle flexing,‟ and touches on a wider issue in western media, that journalists are subjected to the commercial pressures of their editors.
17 Smith states that, „…we speak of being objective as of a technique, sometimes as a glorious goal, occasionally as an external purpose which the journalist is supposed to serve… Each sliver of the infinity of reality at which the reporter thrusts his attention reaches the reader through the haze of motives and intentions – those of journalist, subject, editor, censor, printer, government – which are all the more insistent for being less evident.‟ 18 Political Influences From the above explanation, it can be seen that western societies suffer similar governmental problems as is identified by Whiting and Marjoribanks, although it is unlikely that these are to a similar extent as is evident in Malaysia and Singapore.
Whiting and Marjoribanks note that journalists in Malaysia and Singapore are often so restricted by selfmonitoring that many stories are disregarded from the outset.
19 Media in Australia is clearly less restricted and more open for debate.
Indeed, when the „Australia Needs Tony‟ headline ran, Deputy Leader of the Labour Party stated that front page was an “absolute disgrace.” 20 The media environment in Australia is considerably more open for political debate with journalists and commentators such as Andrew Bolt having no qualms about attacking government 15 Jeannette McMahon, Political front page causes a stir, ABC, 2 September 2013, http://www.abc.net.au/local/stories/2013/09/02/3838874.htm viewed 26 May 2014.
16 Roy Greenslade, ‘Kick this mob out’: Murdoch flexes his election muscle from day one, The Guardian, 5 August 2013, http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia viewed 27 May 2014.
17 Ibid.
18 Smith, above n 11, 179.
19 Whiting and Marjoribanks, above n 1, 140.
20 Bianca Hall, Sunday papers unite behind Coalition, The Sydney Morning Herald, September 1 2013, http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-201309012sye9.html viewed 26 May 2014. http://www.abc.net.au/local/stories/2013/09/02/3838874.htm http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 8 Volume 2(S) No.
1 (2015) officials.
21 However, Smith does identify more similarities between the issues identified by Whiting and Majoribanks and problems facing western media in that „the issues which confront journalism in the twentieth century which transmutes it stage by stage into different forms, is whom the journalists is to represent.‟ 22 This point is crucial.
The issue of whom the journalist is to represent transcends all democratic/autocratic boundaries.
Journalists in Malaysia and Singapore are extremely mindful of who they are to represent in the press, as are journalists in western democracies, including Australia.
Indeed, editors for News Corp Ltd who have fundamental ideological differences with that of Murdoch and his greater agenda have found their „tenure unceremoniously cut short in recent years.‟ 23 The parties who apply pressure in Malaysia/Singapore and Australia may be different, but the ideology of being subjected to distracting outside pressures is the same.
Because of this notion it is at this point in the paper where one can distinguish which is worse, governmental control on journalistic freedom in Malaysia and Singapore or big company control on journalistic freedom in Australia.
Here the crux of the issue will be discussed.
The Parallels Clearly, as noted above, there are parallels between the journalistic pressures experienced by journalists in Malaysia and Singapore and journalists in Australia.
However, although journalists in Australia and other western democracies may be subjected to political and corporate pressure, the fundamental ideology of „free‟ Australian government as opposed to the semi-autocratic nature of Malaysian and Singaporean government, which maintains a monopolist control on many aspects of society, means that the journalistic pressures in 21 Andrew Bolt, Deceit and conceit of Prime Minister Julia Gillard’s latest blue, The Herald Sun, June 12, 2013, http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillardslatest-blue/story-fni0ffxg-1226662729427 viewed 25 May 2014.
22 Smith, above n 11, 196.
23 Margaret Simons, Has Sydney’s Daily Telegraph lost touch with its readers?,The Guardian, 28 May 2014, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world viewed 28 May 2014. http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 9 Volume 2(S) No.
1 (2015) Malaysia and Singapore are certainly more severe and restrictive, and therefore worse than journalistic pressures in Australia.
Although the point of this paper has been to demonstrate that it is not simply „pseudo‟ democracies that experience journalist self-monitoring and that this problem is clearly evident in western democracies (also to a large extent), it cannot be denied that Malaysia and Singapore suffer a unique problem.
These problems are largely dealt with by Whiting and Majoribanks and are clearly unique.
Although media outlets such as News Corp Ltd and Fairfax Media in Australia have questionable political ties through their ownership, Whiting and Marjoribanks state that „In both countries (Malaysia and Singapore) all major domestic print and broadcast media are owned by organizations that are themselves controlled by, or closely linked to and favourable towards, government policies and governing political parties.‟ 24 Here we see that government ownership is considerably more blatant and transparent in Malaysia and Singapore than in Australia.
The licensing system 25 for publication in Malaysia and Singapore also transcends this debate to show that media restrictions in Malaysia and Singapore are considerably worse.
Furthermore, the simple banning of international press publications in Malaysia and Singapore shows the inherent problems facing the dispersal on information in these countries.
26 The issue of defamation as addressed by Whiting and Marjoribanks solidifies the conclusion that in considering which is worse, governmental control in Malaysian and Singaporean media or big company control in Australian media, journalists in Malaysia and Singapore face a considerably tougher challenge, and that balanced media representation in these two countries is limited.
The awarding of damages for defamation cases brought to the courts against journalists in Malaysia and Singapore is unprecedented and acts as a huge barrier in journalistic freedom.
This problem is not present in Australia.
Indeed, achieving a successful 24 Whiting and Marjoribanks, above n 1, 131.
25 Ibid, 132.
26 Ibid.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 10 Volume 2(S) No.
1 (2015) suit against Andrew Bolt‟s incredibly racist remarks against light-skinned aboriginals was a difficult task.
27 In Malaysia and Singapore, defamation is at the forefront of journalist inability to report in a broad and balanced manner.
No leader of the PAP in Singapore has ever lost a defamation case against an opposition leader and no foreign publisher has ever successfully defended a defamation suit brought against them.
28 Unlike in Australia, where the publishing of sensitive topics is likely to bring greater readership, in Malaysia and Singapore there is a huge array of topics that are off limits; relations with ASEAN states, China, race, religion, internal politics, political personalities, corruption and government linked companies.
29 One can see from this list that there are not many topics of substance left to report on.
Although being berated over the phone is more likely than being sued in modern times, the real threat of becoming bankrupt defending a defamation suit in Malaysia and Singapore is a real problem that affects the role of journalism in Malaysia and Singapore.
30 Although it is clear that there are some parallels on the issue of journalistic pressure in Malaysia/Singapore and Australia, it is also evident that in a discussion of which side faces more severe pressure the answer must be Malaysia and Singapore.
This is concluded from what is outlined above, but also in light of notions such as that the Australian media is clearly more open to political debate and when bias becomes too extreme, there is the ability for media inquiries.
Mr Ray Finkelstein QC conducted such a media inquiry in 2011.
31 Such liberty is not afforded to journalists in Malaysia and Singapore, and one can see that the Australian government has taken a priority in making the media and its agenda transparent.
27 ABC, Bolt breached discrimination act, judge rules, ABC, 29 September 2011, http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 viewed 27 May 2014.
28 Whiting and Marjoribanks, above n 1, 136.
29 Ibid, 142.
30 Ibid.
31 Mr Ray Finkelstein, QC, Independent Media Inquiry report, 14 September 2011, Australian Government, Department of Broadband, Communications and the Digital Economy, http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry viewed 26 May 2014. http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 11 Volume 2(S) No.
1 (2015) IV.
CONCLUSION The media has never been considered a clear, objective source of topics; particularly not political topics.
One must take news sources, especially newspapers articles, with a grain of salt.
All journalists are subjected to workplace pressures.
However, obviously political circumstances and media environments vary between nations.
It cannot be denied that journalists in Malaysia and Singapore, as is made evident by Whiting and Marjoribanks, are subjected to severe cases of self monitoring, and it is further evident that Malaysia and Singapore certainly have unique problems in regards to the ease of the courts awarding damages for defamation, and the social and cultural norms in these societies have certainly accepted these court cases as a normal aspect of media reporting.
As was stated at the opening of this paper, Whiting and Majoribanks have depicted Malaysia and Singapore as being unique in their journalistic problems and as having unique aspects in regards to the problems faced in regards to media reporting and restrictions on the media.
It must be concluded that some of these problems are unique and some of these are not unique and should not be depicted as such.
It is not necessarily that pseudo-democracies are alone in experiencing these problems, Australia also faces journalistic self-monitoring and a biased media pool, however, Malaysia and Singapore clearly suffer greater restrictions.
In regards to the argument of which is worse, governmental control on the media in Malaysia and Singapore or big company control on the media in Australia, it is clear that blatant government control, in light of the chapter by Whiting and Marjoribanks is considerably worse.
REFERENCES ABC, Bolt breached discrimination act, judge rules, ABC, 29 September 2011, http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discriminationact/3025918 http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 12 Volume 2(S) No.
1 (2015) Andrew Bolt, Deceit and conceit of Prime Minister Julia Gillard’s latest blue, The Herald Sun, June 12, 2013, http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceitof-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 Cultural Survival, Inc. Media Autonomy in the Third World, Cultural Survival, February 2010, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/mediaautonomy-third-world Mr Ray Finkelstein, QC, Independent Media Inquiry report, 14 September 2011, Australian Government, Department of Broadband, Communications and the Digital Economy, http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry Terry Flew, FactCheck: does Murdoch own 70% of newspapers in Australia?,The Conversation, 8 August 2013 http://theconversation.com/factcheck-does-murdoch-own70-of-newspapers-in-australia-16812 Cherian George, Contentious Journalism and the Internet, Towards Democratic Discourse in Malaysia and Singapore, (Singapore University Press, 2006) Roy Greenslade, ‘Kick this mob out’: Murdoch flexes his election muscle from day one, The Guardian, 5 August 2013, http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-electionaustralia Bianca Hall, Sunday papers unite behind Coalition, The Sydney Morning Herald, September 1 2013, http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papersunite-behind-coalition-20130901-2sye9.html David McKnight, Rupert Murdoch: An Investigation of Political Power, (Allen & Unwin, 2012) Jeannette McMahon, Political front page causes a stir, ABC, 2 September 2013, http://www.abc.net.au/local/stories/2013/09/02/3838874.html Anthony Smith, The Politics of Information: Problems of Policy in Modern Media, (The Macmillan Press Ltd, 1978) Margaret Simons, Has Sydney’s Daily Telegraph lost touch with its readers?,The Guardian, 28 May 2014, http://www.culturalsurvival.org/publications/cultural-survivalquarterly/brunei/media-autonomy-third-world Kirsty Simpson, Gina Rinehart lifts stake in Fairfax to 15% as pressure for board seats builds, The Sydney Morning Herald, June 5 2012, http://www.smh.com.au/national/ginarinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-2012061420d5n.html Amanda Whiting and Timothy Marjoribanks, „Media Professionals' Perceptions of Defamation and other Constraints upon News Reporting in Malaysia and Singapore‟ in Andrew http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.abc.net.au/local/stories/2013/09/02/3838874.html http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 13 Volume 2(S) No.
1 (2015) Kenyon, Tim Marjoribanks, Amanda Whiting (eds.)
Democracy, Media and Law in Malaysia and Singapore (Routledge, London, 2013), 129-156
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 1 Volume 2(S) No.
1 (2015) THE FREEDOM OF INFORMATION IN INDONESIA AND AUSTRALIA Jodie Partridge Law School, University of Wollongong Abstract Freedom of Information laws promote access to data held by government authorities in the public sector to mainstream society.
Such laws have been enacted on a global scale; however, the obedience they have attracted is not consistent amongst each geographical location.
Freedom of Information Laws has been enacted in Indonesia.
It was a scheme introduced in 2008 which included many different components that were to improve each individual’s right to communicate and obtain information for the purpose of developing themselves and their current political and social environment.
The adequacy of the Freedom of Information is a questionable notion in the grand scheme of Indonesia’s legal environment as its effectiveness and motives are rather questionable.
It has been acknowledged that this initiative is still developing on a national scale, which raises the main question, is 6 years long enough for a scheme to still be dubbed as ‘developing’?
This paper will analyse the advantageous and pitfalls of the legislative instrument ending with a comparative analysis with the current situation that Australia experiences.
Keywords: Freedom of Information, law, Indonesia, Australia I.
Introduction “Every person has the right to communicate and to obtain information for the purpose of developing themselves and their social environment, and has the right to seek, obtain, possess, store, process and convey information through all available channels” 1 .
It is founded within this excerpt of Indonesia‟s Constitution, inserted as a result of the 2000 Bill of Rights that each citizen is inherently deserving of public information.
The insertion of this extract stems from the previous legislative landscape that Indonesia fell victim to, commonly referred to as the „New Order‟ 2 .
Within this period Indonesia was under the rule of Suharto, who constructed the 1 Undang-Undang Dasar Republik Indonesia 1945, UUD '45 (Indonesian Constitution).
2 Daniel S. Lev, “Judicial Authority and the Struggle for an Indonesian Rechsstaat” (1978) 13Law & Soc‟y Rev.
37; Hans Thoolen, Indonesia and the Rule of Law: Twenty Years of “New Order” Government: A Study (London: F. Pinter, 1987).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 2 Volume 2(S) No.
1 (2015) government to resemble a highly centralised group within a small political elite 3 , a highly corrupt group who did not perceive the „rule of law‟ to be a notion of any importance.
Whilst it appears that the FOI Act 4 is a remedy to the reformation of the corruption that existed, was this the most effective mechanism the government could enact?
Did the implementation of this instrument efficiently alter the clouded boundary that existed when citizens requested information regarding Indonesia‟s public bodies?
Within this article I will critically assess the implementation of the Freedom of Information Act 5 (“FOI”) in Indonesia as well as comparatively analysing the rights afforded to those residing in Australia to determine the effectiveness of the government‟s response to the „New Era‟.
I will argue about the whole that whilst the reforms to date are perceived to be somewhat successful, there is a considerable, gaping hole in the legislative landscape that results in the denial of basic rights.
II.
LEGAL MATERIALS AND METHOD Research Method This paper applies document of legal instruments relating to freedom of information both in Indonesia and the rights afforded to those residing in Australia to determine the effectiveness of the government‟s response to the „New Era‟.
In particular, Indonesian Act Number 14 Year 2008 on Freedom of Information (2008 Freedom of Information Act) will be analyzed.
It will use juridical normative method and comparative study.
This paper will analyze the implementation of 2008 Freedom of Information Act.
Certain articles in mass media, as well as academic papers articles are also extensively used.
3 Ross McLeod, “Soeharto‟s Indonesia: A Better Class of Corruption” (2000) 7(2) Agenda 99.
4 Freedom of Information Act 2008 (Undang Undang No.
14 Tahun2008 tentang Keterbukaan Informasi Publik) 5 Freedom of Information Act 2008 (Undang Undang No.
14 Tahun 2008tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 3 Volume 2(S) No.
1 (2015) Legal Materials Legal materials applied in this paper include primary sources and secondary sources as well as tertiary sources, as follows: Primary sources include Indonesian Act number 14 Year 2008 on Freedom of Information Act, United Nation Declaration of Human Rights as well as Indonesian Constitution and relevant Australian legal material, Freedom of Information Act (No.3) 1982 (Cth).
Whereas secondary sources to support primary sources analyzes include explanatory section of Indonesian Act Number 14 Year 2008 on Freedom of Information, explanatory section of Indonesian Constitution as well as experts‟ opinion on relevant matters, relevant academic written paper and Annual Report gained from Central Information Commission of Republic of Indonesia.
III.
RESULT AND DISCUSSION Explanation of the Act As noted above, the driving force behind the FOI Act 6 is founded within the reign of Suharto under which corruption flourished, accountability and transparency were not present, and the rule of law was nothing but a myth.
The successor to Suharto put in motion reforms that would shape Indonesia‟s trajectory towards anti-corruption, such as, constitutional reforms, institutional independence of the judiciary from the government, commitments to anti-corruption court, and the most important being the enactment of the FOI Act 7 in 2008.
The blanket aim of the FOI law is founded within the notion of „national cohesion‟.
It declares that by providing heightened access to information the following goals will be achieved; “the increase of the quality of community involvement in decision making, expedite the creation of an open 6 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 7 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 4 Volume 2(S) No.
1 (2015) government and encourage public bodies to be” 8 .
To understand the motive of this legislative instrument, the following Articles must be noted: Article 1(1) ‘information is broadly recognised as any information, statement, idea or sign that has value, meaning or a message that can be seen, heard or read’ 9 .
Article 1(2) ‘public information means information produced, stored, managed or received by a public body which concerns the public interest and either relates to the administration of the state or of another public body’ 10 .
Article 2(1) ‘all public information is to be open and accessible to users of public information which includes Indonesian citizens and legal entities, all citizens and entities possess the right to request, view, understand and obtain a copy of and distribute public information’ 11 To achieve the desired result as prescribed within the legislation, significant obligations are imposed upon all public bodies in order to encourage their compliance.
Such obligations include; the development of information and documentation systems to efficiently manage public information 12 , the creation of request processing systems and to employ staff to respond to requests 13 , and the publishing of six-monthly reports on activities, performance, financial data and any other information that could threaten the necessities of life of the people and public order 14 .
The five central pillars are as follows: a.
Central Information Commission – as a means to ensure compliance with this law the Central Information Commission, an independent commission which operates 8 Daniel S. Lev, above n2.
9 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 1(1) 10 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 1(2) 11 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(1) 12 Simon Butt, Freedom of Information Law and its Application in Indonesia: A Preliminary Assessment, (2014) ASJCL p 113-154.
13 Ibid.
14 Ibid.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 5 Volume 2(S) No.
1 (2015) conjunctively with provincial bodies, was created and attains the primary responsibilities of providing dispute resolution procedures.
b.
Dispute Resolution – The FOI Act 15 puts into place mechanisms for which the public can utilise if they fall victim to a denied request.
The process allows for a variety of avenues to be utilised including written reviews, voluntary mediation, public hearing by judicial bodies, and access to the general courts.
16 c. Exemptions – In accordance with Article 2(2) 17 , this legislative instrument does seek to limit the types of information that public bodies can keep secret.
The extent to which disclosure takes precedence over transparency relates to the way in which public bodies interpret the content of the law.
d. Harm Consequences Test – Article 2(4) of the FOI Law 18 establishes what has been labelled as the „Harm Test :Confidential by reason of statute, appropriateness and the public interest, based on an assessment of the consequences that will arise if the information is disclosed to the community and after considering whether denying access to that information could protect a greater interest than the interest in open access, or vice versa” 19 e. Penalties – It is prescribed within this law that many criminal penalties are attached to offences such as, rejecting a legitimate request for information, falsifying or destroying public information and failure to provide required information as required within the sixmonthly report.
Such penalties are attributable to individual culprits or companies, a questionable deterrent to be explored.
15 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 16 Simon, Butt, above n12.
17 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(2) 18 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(8) 19 Ibid.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 6 Volume 2(S) No.
1 (2015) Based upon the explanation provided of the legislative instrument, it is now time to analyse the Act and its implementation.
Did it fulfil the expectations of the government and adhere to maintaining the trajectory towards national cohesion?
Effectiveness of the Act In order to achieve efficiency, the measurement of this instruments effectiveness will take place with the analysis of certain criteria such as, time and cost effectiveness, precedents set by the Information Commission and an in-depth investigation of the components of the legislation.
While many of the criticisms hold considerable merit in the argument they put forth, do they in turn fail to recognise, on a larger scale, the overall evolution of Indonesia?
Time and Cost Effectiveness The implementation of this law occurred in 2008, its operation occurred fairly sporadically as it did not reach the stage of „functional‟ until 2011.
In accordance with Article 58 20 and Article 59 21 the Information Commission was to be established within one year of the laws implementation, which did not occur until 2010 and regional provincial commissions were to be established within two years.
However, to date only 20 out of 34 provinces currently attain this requirement 22 .
According to data obtained from the Central Information Commission, Information Officers were only appointed in the following industries, a condition prescribed by Article 13 23 : a.
25 of the 35 Ministries (74%) b.
29 of 129 State Institutions (22%) c. 14 of 33 provincial governments (42%) d. 53 of 399 county governments (13%) 20 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 58 21 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 59 22 Annual Report 2010, Central Information Commission of Republic of Indonesia, available at www.komisiinformasi.go.id> (last accessed 19 May 2014).
23 Annual Report 2012, Central Information Commission of Republic of Indonesia, available at <www.komisiinformasi.go.id> (last accessed 19 May 2014).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 7 Volume 2(S) No.
1 (2015) e. 17 of 98 city governments (17%) 24 The conclusion to be drawn from such statistics provides that slow compliance is currently an issue that is interfering with the success of the legislation, but who is at fault for this?
When assessing article 13(b) 25 it notes that all public bodies were to train and hire employees in order to handle requests for information, however how can such goals be achieved if no government funding, training or procedural guidelines have been developed?
It is through such negligence of government activity that an attitude of „non-compliance‟ has spread throughout the Indonesian community.
Precedents established by the Information Commission The performance of the Information Commission in establishing a precedent, and the degree of enforcement in which they are going to adopt has been a fairly developing aspect.
According to the Jakarta Post between 2010 and 2011 the Information Commission received 227 requests for information, however only 7 were attended to in a judicial manner and of those 7, only 2 losing parties have been required to comply with the Commission‟s ruling 26 .
A gradual trend of compliance has been identified as, in accordance with the Commission‟s 2012 annual report, an approximate two thirds of the total 818 requests for information have been resolved 27 .
However, whilst a positive trend is depicted, does the way in which they approach them effectively embody the principles of the FOI Act 28 ?
Two fundamental elements of case law lay the foundation as to the general ability of the Information Commission, which are described as follows: 24 UU Keterbukaan Informasi Diabaikan”, Hukumonline (26 May 2012), online: <www.hukumonline.com> (last accessed 30 October 2013).
25 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 13(b) 26 Warief Djajanto Basorie, “Indonesia‟s Freedom of Information Laws, One Year On”, TheJakarta Post (28 April 2011).
27 Annual Report 2012, above n23.
28 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 8 Volume 2(S) No.
1 (2015) 1.
„An appeal against West Java Information Commission ordering the Mayor to provide three types of financial documents which due to the following reasons should not have been disclosed: a.
Comprehensive Report Documents are excluded information under the law and should not have been originally disclosed, b.
The report could not be released before obtaining permission, c. The third report should not have been requested from the Mayor, nor any information to be extracted from his office as it was not his responsibility to produce, store or manage such records‟ 29 .
2.
„This was an appeal against the central Information Commission decision in the Medan Flood Control Case – The applicant has requested copies of contracts for goods and services.
The Ministry challenged the Commission‟s findings on the basis that the contract has a confidentiality clause and the other party to the contract refused permission for the document to be released.
The three grounds in which the Information Commission was incorrect on are: a.
The Ministry had an obligation to fulfil the contract as this contract had a confidentiality clause, they had an obligation to maintain it, b.
The court found that the commercial information contained in the contract was subject to copyright and therefore should not have been subject to disclosure, c. The Court relied on Article 11(1)(e) of the FOI law 30 which states that public bodies must provide information about contracts with third parties, however in 29 Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 34/G/TUN/2012 PTUN-BDG); Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 64/G/TUN/2012 PTUN-BDG).
30 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 11(1)(e) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 9 Volume 2(S) No.
1 (2015) this instance no third part was present and disclosure was therefore not required‟ 31 .
Whilst it is perceived that increased compliance with the act is a positive aspect which has been slowly generating since its inception, the manner in which it is correctly interpreted and enforced is highly questionable.
The apparent need for the Administrative Appeals Court to overturn the commission‟s original decisions allows for a degree of doubt as to what rights are actually being afforded to Indonesian citizens?
Analysis of the Acts Components The imperative component to this text analysis is determining whether the components of the act effectively provide an avenue to the „Freedom of Information‟ or if this is merely an instrument to evade further global scrutiny.
In accordance with the Association of the Rule of Law, „The scope of Indonesia‟s Law on Public Information Transparency was a compromise between the government and civil society.
The government did not want to bring State Owned Enterprises within the scope of the law however, civil society organisations demanded it.
The result was a compromise where such enterprises were required to disclose limited classes of information‟ 32 .
Although it appears that a compromise was an effective response, critics argue that an abundance of information is left undisclosed, for example „it does not require disclosure of information related to the contract actually awarded nor is there any disclosure of information that would allow the public to evaluate its performance, such as statistics concerning output‟ 33 .
A vital component of the FOI Law 34 is the „harm test‟ which provides public bodies with the authority to deny information on a variety of bases.
The legal foundation for such power is 31 Public Works Ministry v. Antoni Fernando (Jakarta Administrative Court Decision 102/G/2012/PTUNJKT).
32 Angela Migally, Freedom of Information: A Cornerstone of Democratic Transition (2013) p20 – 21.
33 Ibid.
34 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 10 Volume 2(S) No.
1 (2015) founded within Article 6 35 as it is declared that „public bodies have the right to refuse to provide information that is „excluded by‟ or „does not accord‟ with „written laws‟, which are any form of government law, from statutes through to regulations, presidential instructions, ministerial decrees and circulars and local parliament by-laws 36 .
To follow on from this avenue of exemption, Article 2(4) 37 establishes a proportionality test, where the public-interest in disclosure is balanced against the impending harm that disclosure might bring from a plain reading of the legislature.
It appears that if the information officer believes the admission of particular information will be more detrimental to the public interest than advantageous, then disclosure can be repudiated 38 .
It is viewed that Article 2(4) 39 has the potential to expand „excluded information‟ beyond the categories already specified within Articles 17 40 and 6(3) 41 .
Through this possibility it is therefore inherently possible that any information could be subjectively categorised as more harmful if released or against the public interest.
The pitfall of this provides public bodies with the ability to individually decipher whether the avoidance of disclosure is a more appropriate response, meaning a debate between their motives and the public‟s rights has the potential to never result in the latter.
Another component targeted by critics is the legislature‟s inability to provide a definition of a „public body‟.
According to a professor of Gadjah Mada University, the characterisation afforded to a „public body‟ is too broad and causes obscurity when classifying between public and private entities 42 .
This acts as a fundamental weakness as many entities have the ability to evade their obligations by claiming they do not possess the characteristics of a public body and 35 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 6 36 Ibid.
37 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(4) 38 Ibid.
39 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(4) 40 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 17 41 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 6(3) 42 Adistra Kusuma Waligalit, Legal Proposition on the Public Freedom of Information in Indonesia (2013) Faculty of Law of Gadjah Mada University p 1 – 7.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 11 Volume 2(S) No.
1 (2015) no obligation to respond to information requests.
An example of this is founded within the report of the Association of the Rule of Law which notes that the lack of transparency within private entities is a contributory factor to many human rights breaches, resulting in the recommendation for the release of all legal, financial and auditing reports for companies, cooperatives and military based entities 43 .
Further aspects of the legislature that have fallen under scrutiny although are not as vital as the abovementioned components are: 1.
The inability of wholly deterrent penalties to be prescribed within Article 52 and 53 of the FOI Act 44 .
The most effective element of the penalties under this instrument are its ability to target individuals who intentionally evade their obligations, however such a positive element is overshadowed by the inability of the Information Commission to issue penalties, and the minimal financial burden it can place on public bodies; and 2.
There have been many instances in which the Information Commission has not responded to an individual‟s appeal within the specified timeframe and therefore do not afford elements of procedural fairness to all parties 45 .
It is through such elements of analysis that I will now be in a position to provide an overall evaluation of this instrument.
Evaluation of the Act As noted by the multiple critics, the evolution towards „freedom of information‟ in Indonesia has been a slow and moderate journey.
Whilst advances are evidenced in terms of providing a trajectory towards the rule of law and the recognition of fundamental human rights, the elements of accountability and transparency are yet to be achieved.
After an assessment of the components of the act and the precedents that have failed to be followed by the Information 43 Angela Migally, above n32.
44 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 52, 53 45 No 144/KMA/SK VIII/2007 on Disclosure of Information in Court.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 12 Volume 2(S) No.
1 (2015) Commission, Indonesia is yet to reach the pinnacle of providing an effective response to the demand for Information.
To strengthen the inadequacies of Indonesia‟s response to this issue, I will now undertake a brief comparative analysis between the rights afforded to Australian citizens as opposed to those of Indonesia.
Comparative Analysis between the rights afforded to Australian and Indonesian citizens According to the United Nations Educational, Scientific and Cultural Organisation, as a response to global demands Australia developed and enforced their national FOI Law 46 as early as 1982 47 .
The Australian Government enacted this legislation with the motive of providing citizens with an insight as to policy making, administrative decision making, government service delivery and the ability to search and modify all records that attain personal information 48 .
The most notable differences, bar the initial motives and time of implementation of the legislature, between the Australian and Indonesian landscapes are, the Australian Government seeks to actively and regularly promote awareness of FOI opportunities, they regularly audit on an internal and external basis their ability to fulfil their obligations as per their legislative requirements, both public and private entities are susceptible to the FOI Law 49 and the Australian government maintains a heightened level of compliance to the legislative instrument by frequently providing information and procedural guidelines to both public and private entities.
An example of the level of adherence and importance the Australian government provides to the freedom of information is founded within their yearly audit submitted to Parliament titled „Review of Freedom of Information Legislation‟ 50 which includes statistics, data and ideas of reform in order to provide each citizen with the level of rights they are entitled to.
46 Freedom of Information Act (No.
3) 1982 (Cth) 47 Freedom of Information in Asia Pacific (2013) United Nations Educational, Scientific and Cultural Organisation: Communication and Information 48 Ibid.
49 Freedom of Information Act (No.
3) 1982 (Cth) 50 John McMillan and James Popple, Review of Freedom of Information Legislation (2012) Office of the Australian Information Commissioner p 47.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 13 Volume 2(S) No.
1 (2015) It is through this comparative analysis that the words „transparency‟ „accountability‟ and „national cohesion‟ cannot straightforwardly be applied to the Indonesian Government and the manner in which they address the „freedom of information‟.
IV.
CONCLUSION The beginning of this text included a quote founded within the Indonesian Constitution that acknowledged the basic right that each citizen is deserving of, but when taking into account the evidence provided and the above analysis, the question of whether the Constitution is being wholly fulfilled arises.
On a general note it is indisputable that the legal landscape of Indonesia has improved significantly since the inception of the FOI Act in 2008 51 .
To an extent it has established a degree of press freedom and has acted as a component to remedy the damage caused by the „New Order‟.
However, its effectiveness is significantly queried.
In my opinion and based upon the above opinions of various criticisms, the notion of „freedom of information‟ in Indonesia is yet to be achieved on a scale that embodies principles of accountability and transparency.
Summarily the implementation of this instrument did not efficiently alter the clouded boundary that exists when citizens attempt to obtain information regarding Indonesia‟s government, public bodies or personal items.
REFERENCES Articles/Books/Journals Basorie, Warief Djajanto “Indonesia‟s Freedom of Information Laws, One Year On”, The Jakarta Post (28 April 2011) Butt.
Simon, Freedom of Information Law and its Application in Indonesia: A Preliminary Assessment, (2014) ASJCL p 113-154 51 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 14 Volume 2(S) No.
1 (2015) Lev, Daniel “Judicial Authority and the Struggle for an Indonesian Rechsstaat” (1978) 13 Law & Soc‟y Rev.
37; Hans Thoolen, Indonesia and the Rule of Law: Twenty Years of “New Order” Government: A Study (London: F. Pinter, 1987) McLeod, Ross “Soeharto‟s Indonesia: A Better Class of Corruption” (2000) 7(2) Agenda 99 McMillan, John and Popple, James, Review of Freedom of Information Legislation (2012) Office of the Australian Information Commissioner p 47 Migally, Angela.
Freedom of Information: A Cornerstone of Democratic Transition (2013) p20 – 21 UU Keterbukaan Informasi Diabaikan, Hukumonline (26 May 2012), online: www.hukumonline.com (last accessed 30 October 2013) Waligalit, Adistra Kusuma Legal Proposition on the Public Freedom of Information in Indonesia (2013) Faculty of Law of Gadjah Mada University p 1 – 7 Cases Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 34/G/TUN/2012 PTUNBDG); Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 64/G/TUN/2012 PTUN-BDG).
Public Works Ministry v. Antoni Fernando (Jakarta Administrative Court Decision 102/G/2012/PTUN-JKT).
Legislation Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Freedom of Information Act (No.
3) 1982 (Cth) Other Undang-Undang Dasar Republik Indonesia 1945, UUD '45 (Indonesian Constitution) Annual Report 2012, Central Information Commission of Republic of Indonesia, available at <www.komisiinformasi.go.id> (last accessed 19 May 2014).
Annual Report 2010, Central Information Commission of Republic of Indonesia, available at www.komisiinformasi.go.id> (last accessed 19 May 2014).
No 144/KMA/SK VIII/2007 on Disclosure of Information in Court.
http://www.hukumonline.com/ Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 15 Volume 2(S) No.
1 (2015) Freedom of Information in Asia Pacific (2013) United Nations Educational, Scientific and Cultural Organisation: Communication and Information
96 | DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.07 Examining on Indonesian Legal Challenges for Future Transnational Healthcare Service Febrian Indar Surya Kusumaa, Sapto Hermawanb aFaculty of Law, University of Sebelas Maret Surakarta, Central Java, Indonesia, 57126 Email: febriank28@gmail.com bFaculty of Law, University of Sebelas Maret Surakarta, Central Java, Indonesia, 57126 Email: Saptohermawan_fh@staff.uns.ac.id Submitted : 2020-02-29 | Accepted : 2020-04-13 Abstract: Facing the fourth industrial revolution, the state must strengthen its role to protect its citizens as a part of its efforts to provide social security.
Indonesia as a nation also have to face this challenge, especially on the ability to provide healthcare and medication for their citizen neither they lived in the country nor stay overseas.
This kind of issue has to be our concern because of our current situation in the globalization era force us to eliminate the national border and start to design transnational services to fulfill our basic needs.
Therefore, this paper will conduct research that focuses on the healthcare and medication services in the South East Asia, especially a comparison between Malaysia and Indonesia’s government.
Furthermore, this study will also give a brief preview of the 4.0 industrial revolution that brings the shifting of a new era for fulfilling a necessary healthcare service by using transnational big data.
Through a social justice perspective and sociological law approach, the researcher uses social security theory that will lead us to reach the concept of the welfare state.
This comparison will give us a larger image to see Indonesian government legal challenges and opportunities to provide a new form of healthcare services.
Keywords: healthcare service; social security; transnational services.
I.
INTRODUCTION As a part of global society, we live in a specific mechanism that makes us follow any shift of an era.
In 1760, the beginning of the industrial revolution, introducing the use of steam engines and at the beginning of the 20th century, we can make a mass production using electricity.
Afterward, the Industrial 1 Huraizah Zakaria, et.al, ‘IoT Security Risk Management Model for Secured Practice in Revolution, followed by the digital revolution that uses the computer in 1960 and introducing the internet in 1990.
People begin to adapt to the extensive access to information that no longer restricted by territory, or “tools such as laptop, desktops and tablet as in previous decades”1.
This shift Healthcare Environment’ (2019) 161 Procedia Computer Science, p. 1241 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Kusuma, Hermawan Examining on Indonesian Legal Challenges for… | 97 of an era, ascertain bring along the shift of socio-economic life and policy to society.
Nowadays, people almost have no limit to access any variety of information at any time and any place.
The advanced technology of mobile devices makes us see the world differently.
Information disclosure is a sign of a digital revolution, which also supported by the sensor evolution that processes passive data gathering with meaningful interpretation, the advance of the digital revolution begins to enter the era of the 4.0 industrial revolution.
The term of 4.0 industrial revolutions it is coined in Germany at the Hannover Fair (2011).
This term refers to the system integration based on cloud computing using internet things that can process Big data resources.2.
The 4.0 industrial revolutions emphasize the use of the “Internet of Things” that also develop the Artificial Intelligence, widen the fusion of technology in the physical, digital, and biological world.
According to Klaus Schwab (2016) 3 , this shift will focus on three fields, velocity, breadth and depth, system impact.
Velocity adjusting for making interconnectivity across sectors and borders in the world where we live in, Breadth and depth will bring the change from “what to How” and who we are in the field of economy, businesses, society, economics and individually.
And last but not least, this 4.0 industrial revolution will give an impact on the system that already exists in the world.
This era will transform the whole economy, societies, countries, companies, and industrial systems.
How we see the advance changing of the technology will affect how we see the world, we have choices on how we will use it.
Positively, the industrial revolution will affect and will be affected by countries, 2 S.I.
Tay, et al, ‘An Overview of Industry 4.0: Definition, Components, and Government Initiatives’ (2018) 10(14-Special Issue) Journal of advanced Research in Dynamical and Control System, <https://www.researchgate.net/publication/33244 0369_An_Overview_of_Industry_40_Definition_ Components_and_Government_Initiatives> accessed December 20, 2019 3 Klaus Schwab, The Fourth Industrial Revolution, (World Economic Forum, Switzerland, 2016) economies, industries, and people, so that the reason why we need to build the awareness of the multi-stakeholder to notice this issue.
This transformation will bring a numerous shifts in an immeasurable way if we can manage to have cooperation across academic, social, political, national and industry boundaries.
Of course, it will also have linkages with the government’s policy, and country statutory.
As the 4.0 industrial revolution have a more extensive scope, we need to see this phenomenon as an opportunity to extend the government policy that can bring social justice to society.
In the West Country that already has established economic growth; the government has a significant role to provide social security for its citizens.4 With all the respect, social justice in the South East Asia region needs improvement, more specifically, in the field of social security that provides healthcare services as human basic needs.
For the developing countries, the government will have more attention in the economic sector rather than social policy, and it’s a typical case in Southeast Asia countries.
Moreover, the healthcare in some developing countries are “characterised by a large private, sometimes informal, provider sector due to the inadequacy of state healthcare and the financing is often not enough”5.
Limitations on the access of resources become one of the most important factors that give an influence on the government’s policy direction.
The social policy usually takes the most significant part of government expenditure.
Therefore, in a developing country, the government will give less attention to that sector 6 .
Some of Asia’s government also rejected the idea of ‘welfare state,’ but they don’t realize that there is so many social securities policy that they have 4 Robert East, Social Security Law, Macmillan Press Ltd, London, 1999, p. 1 5 Chee Heng Leng, ‘Ownership, Control, and Contention: Challenges for the Future of Healthcare in Malaysia’, (2008) Journal Social Science & Medicine, Vol 66, p. 2145-2156.
6 M. Ramesh, et all, Welfare capitalism in Southeast Asia: Social Security, Health and Education Policies (ST. Martin’s Press, INC, America, 2000), 3. https://www.researchgate.net/publication/332440369_An_Overview_of_Industry_40_Definition_Components_and_Government_Initiatives https://www.researchgate.net/publication/332440369_An_Overview_of_Industry_40_Definition_Components_and_Government_Initiatives https://www.researchgate.net/publication/332440369_An_Overview_of_Industry_40_Definition_Components_and_Government_Initiatives Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 98 | Kusuma, Hermawan Examining on Indonesian Legal Challenges for… to support the bureaucrats.
With the fact that the government still have a low level of awareness related to social security and the resources’ factor that also exist behind that issue, therefore this phenomenon has to be our concern.
Focusing on South East Asia social security cases, the research will try to observe Indonesia’s social security policy.
As a part of the South East Asia country that has a dynamic economic growth, an archipelago state, and have a significantly different social security scheme, researchers argue that it will be interesting to learn from this peculiarity.
Related to Law Number 40 the year 2004 about National Social Security System, the government of Indonesia has a responsibility to divert individual risk to be a national responsibility to fulfill life subsistence under the condition of sickness, work accidents, unemployment, aging, and pension.
This constitution indicates that Indonesia already has a statute that regulates the government's responsibility to provide social security.
Through BPJS Kesehatan and BPJS Ketenagakerjaan 7 , Indonesia’s government promotes the development of social security services.
Using the ‘gotong-royong’ principle, BPJS has a different model of funding compare to another health insurance.
The central financial source came from BPJS Participant’s contribution.
Since 2011, BPJS already cover the healthcare service for Indonesian people that join as BPJS members.
Although it almost 8 years of BPJS, but there is so much limitedness that still occurs and needs to analyze their possibility to gain more extensive access and scope to give a social justice for all of the Indonesian citizens.
This study will conduct research that focuses on the legal challenges and opportunities that the Indonesian government might have to give social justice for all of the 7 BPJS (Badan Penyelenggara Jaminan Sosial) is a department that was formed by the Indonesian Government to provide social security for the citizen.
BPJS Kesehatan is a social security program that available for all the Indonesian citizen, while BPJS Ketenagakerjaan is a social security program for the worker in Indonesia, including foreign worker.
8 Raymond R. Tjandrawinata, ‘Industri 4.0: revolusi abad ini dan pengaruhnya pada bidang citizens of Indonesia.
In other words, we will also have to see the probability of BPJS become a transnational healthcare service provider for Indonesia citizens and give a contribution to regional healthcare and medication big data.
These opportunities might be the social security improvement that takes advantage of the 4.0 industrial revolution era.
As the researcher mention above, the improvement of social policy will take a lot of country’s expenditure, so we have to maintain the ability that we might have from the 4.0 industrial revolution era to make an improvement that has a minimum cost.
This paper will discuss two main research questions.
Firstly, in comparison with other Southeast Asia countries member, we will see how do Malaysia and Indonesia provide social security in the field of healthcare services?
Secondly, this research will also discuss how does the Indonesian legal system face the shift of the 4.0 industrial revolution, and what do the opportunities and challenges to provide new forms of transnational healthcare and medication services?
These two questions will give us an illustration of Indonesia’s future social security services if we can manage to take advantage of the 4.0 industrial revolution.
Studying about legal challenges and opportunities in the providing transnational social security field that related to the 4.0 industrial revolution in Indonesia is still low, since the beginning of the 4.0 industrial revolution.
Research has been conducted before in the science field that talks about how 4.0 industrial revolution might have an impact on medication in Indonesia like the working paper that already published by Dexa Medica Group in 20168, STIKES Siti Hajar Medan in 2019, 9 and the recent kesehatan dan biologi’, (Research, Dexa Medica Group, 2016), <https://www.researchgate.net/publication/29369 5551_Industri_40_revolusi_industri_abad_ini_da n_pengaruhnya_pada_bidang_kesehatan_dan_bio teknologi> Accessed December 20, 2019 9 Lagut Sutandra, et al, ‘Analisis Layanan Teknologi Komunikasi Klinik Fisioterapi Siti Hajar Era Revolusi Industri 4.0’ (2019) 3(1) Jurnal Sistem Informasi https://www.researchgate.net/publication/293695551_Industri_40_revolusi_industri_abad_ini_dan_pengaruhnya_pada_bidang_kesehatan_dan_bioteknologi https://www.researchgate.net/publication/293695551_Industri_40_revolusi_industri_abad_ini_dan_pengaruhnya_pada_bidang_kesehatan_dan_bioteknologi https://www.researchgate.net/publication/293695551_Industri_40_revolusi_industri_abad_ini_dan_pengaruhnya_pada_bidang_kesehatan_dan_bioteknologi https://www.researchgate.net/publication/293695551_Industri_40_revolusi_industri_abad_ini_dan_pengaruhnya_pada_bidang_kesehatan_dan_bioteknologi Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Kusuma, Hermawan Examining on Indonesian Legal Challenges for… | 99 presentation by Universitas Gadjah Mada in Rakerkesnas 2019.
10 The presentation by Anis Fuad in Rakerkesnas has similarities with this research, but the difference lies in the main issue.
This study will have more extensive analytical in the field of legal challenges and opportunities to provide a wider scope of healthcare service for Indonesia’s citizens, whether they live within the country or stay overseas.
It’s an urge to discuss future social security policy in Indonesia because the 4.0 industrial revolution has a peculiarity in the velocity, breadth, and depth, as the researcher already mention above.
We need to realize that the effect of globalization and the shift of the industrial revolution requires high mobility that no longer limited to a country as a territory.
Along with the reality that Indonesia has a lot of citizens living overseas, either they working or studying.
The government of Indonesia has to realize that they have the responsibility to ensure that every Indonesian people can get the same access to basic needs in the name of social justice.
Time efficiency is also crucial to improve medical services.
We need to ascertain that our state statutory can be more adaptive to the current situation and global standard.
By using big data and artificial intelligence, we can have more chances to have individual medical records at any stage that can be accessed by our mobile devices or our BPJS member card.
This record will also be used by the government to keep an eye from the health care provider who collaborated with the government.
Furthermore, transnational healthcare services can use to make an integration of medical support in the region.
II.
LEGAL MATERIALS AND METHODS This research will use qualitative research based on empirical and normative studies to analyze data.
It also will take the scope of South East Asia, especially <http://jurnal.uinsu.ac.id/index.php/query/article/ > Accessed December 20, 2019.
Indonesia, and Malaysia as a comparison.
With the theoretical view about social security that conduct by Mukul G. Asher, the researcher will analyze how the Indonesia, and Malaysia, Government try to provide social security in the field of healthcare service.
III.
RESULT AND DISCUSSION The transformation of the industrial era also followed by the shift of the individual preference to make a subsistence.
Before the industrialization era, people tend to selfemployment, and after that, industrialization brings the trend of wage employment.
This shift, also brings the shifting of the risk that they have to face.
The employments have to face the risk of unemployment, sickness, industrial injury, etc, consequently, to overcome the individual risk, the government needs to maintain the formal social security.
According to Rimlinger, the social security program also has a benefit to promote preparation for industrial employment and commitment to work.
11 The commitment of the government to ensure their citizens' income and welfare is needed.
To gain the welfare state, the citizens also have to be protected from any risk that might occur.
Therefore, in this chapter, the researcher will give a brief introduction to the social security comparison provided by Indonesia’s government and Malaysia’s government.
Furthermore, we can see the main idea of the 4.0 industrial revolution and the legal challenges and opportunities that Indonesia’s government might have in the future to provide social justice in the field of social security programs, especially on healthcare services.
Social Security and Healthcare Services in Indonesia and Malaysia As a part of ASEAN members and also known as the member of ASEAN 5, Malaysia and Indonesia share the same socio and cultural conditions.
In some ASEAN countries, the social security program is not a 10 Anis Fuad, ‘Inovasi dan Pemanfaatan teknologi Digital Bidang Kesehatan’, (Presentation, Rakerkesnas, Tangerang, 12 February 2019).
11 M. Ramesh, et all, above n 6, 5. http://jurnal.uinsu.ac.id/index.php/query/article/ http://jurnal.uinsu.ac.id/index.php/query/article/ Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 100 | Kusuma, Hermawan Examining on Indonesian Legal Challenges for… government main program that is a usual condition.
The government has more concern in the field of the economic sector because we still have to increase economic growth to gain more steady economic conditions.
But this fact doesn’t mean that there is social security at all.
It has said by Mukul G. Asher through his book that the central purpose of social security is preventing a significant and abrupt fall of living standard because of retirement, death, disability, occupational injury or disease, or unemployment.
12 These issues might be a common cause of poverty.
Therefore, the government needs to make such a social security scheme for its citizens to alleviate the risk that might be caused by these issues.
For countries that also still have an issue to stabilize their national economic growth, it might be hard, because we need to know that social security will always take a lot of national expenditure.
Not only affected by national economic stability, the capability of the government to give such social security for it citizen will also be affected by other factors such as political condition, geographical situation, socio-cultural, etc.
Since the very beginning, there is no single social security scheme that can be fit for all countries.
Including countries that already try to provide social security for its citizens, at some point, the government might give a different scheme for a different situation or change the social security scheme overall.
Abdul A. Wahab stated that “Government funding for health care mainly include capitals from government financial plan and social security schemes” 13 .
Adjustment needs to be made by the government if the social dynamic and global shift might give a negative impact on the citizen that receives the benefit from these social security programs.
12 Ibid.
M. Ramesh, et all, 30 13 Abdul Azeez Oluwanisola Abdul Wahab, Zurina Kafeli, ‘Projecting a Long Term Expenditure Growth in Healthcare Service: A Literature Review’, (2016) 37 Procedia Economics and Finance, P. 152-157.
14 Donald S. Shepard, wt al, ‘Health Care Reform Initiatives in Malaysia’, (Report, Schneider Institute for Health Policy, 2002), 11 According to Mukul G. Asher’s books, ”Welfare Capitalism in Southeast Asia,” in the very beginning, Indonesia has a social security program for private-sector worker since 1920, but this pension scheme didn’t have a long term benefit and only can give security system for a few numbers of a private worker.
Afterward, the Indonesian government made two social security programs that separate it for the private worker and public sector worker.
The private worker in Indonesia got social security program under Jamsostek (Jaminan Sosial Tenaga Kerja).
Since 1992, through Jamsostek, the employer sponsors a pension fund for their worker, while for the public sector worker, there are 2 (two) different schemes for the social security program.
First, they will get TASPEN (Tabungan dan Asuransi Pegawai Negeri) and they will also get pension funds.
TASPEN will only give the pension fund once when they reach the pension age, while on the other hand, there will also a pension scheme that was given to the retired workers every month.
The Public sector worker takes a lot of government expenditure.
Now, the government of Indonesia makes a new social security scheme that covers all of the public and private sectors.
Under Badan Penyelenggara Jaminan Sosial (BPJS), the government of Indonesia tries to cover the entire previous Social security scheme.
They just divided into two different kinds of BPJS, BPJS Kesehatan, and BPJS Ketenagakerjaan.
Malaysia also has an almost similar social security scheme with Indonesia.
There are few types of pension scheme in Malaysia such as the Employee Provident Fund (EPF) 14 that was established in October 1951 15 ; Employment Injury and Invalidity Benefits Scheme; and Old Age Pension Scheme for Civil Service and Military, the Teachers Provident Fund (TPF), the <https://www.who.int/health_financing/document s/malaysia-reform-initiatives.pdf> 15 Siti Sheikh Hussin, et al, Employee’s Provident Funds Of Singapore, Malaysia, India and Sri Lanka: A Comparative Study, in Gautama Mitra(ed), Asset and Liability Management Handbook, (Palgrave Macmillan, New York, 2011), 190. https://www.who.int/health_financing/documents/malaysia-reform-initiatives.pdf https://www.who.int/health_financing/documents/malaysia-reform-initiatives.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Kusuma, Hermawan Examining on Indonesian Legal Challenges for… | 101 Malaysian Estates Staff Provident Fund and a handful of statutory and private provident funds.
The interest of this scheme is different; depend on the group of the worker.
People’s group that working in the public sector, receiving the best benefit of this scheme.16 These days, the Malaysian government try to make a new scheme of social security services, but there is a delay because of this scheme will cost higher than before and need more than 10% of Malaysian people’s monthly income to cover it.17 As we can see, both Indonesia and Malaysia still seek the most fitting social security scheme.
The main reason that makes the government need to adjust its social security scheme is its ability to find the most appropriate funding scheme, if the government wants to take over all of the pension funding and healthcare service during their working age, it will take a higher cost, and take a large amount of the national expenditure, on the other hand, if the funding came from the worker only, it will be difficult.
These challenges need a contextual solution because each country has its own political, socio-cultural, and economic context that might be different from other countries.
Indonesian Legal System Challenges and Opportunities in 4.0 Industrial Revolution Era.
The 4.0 Industrial Revolution is the new era that coined at the Hannover fair in Germany (2011).
This era begins with the adaptation of the Cyber-Physical System and integrated with the Internet of Things (IoT).
As can be seen in Figure 1, if the previous digital revolution (Industry 3.0) only emphasizes the use of computerization, automation, and using electronic devices, this era constrains the utilization of the digital device with more complexity.
Using the Internet of Things, Simulation and Autonomous Robots, this era needs to develop Artificial Intelligence (AI) that processing Big Data.
Velocity becomes the main achievement that needs to attain.
The use of AI can give more accuracy, cost efficiency, and accelerate the time taken for processing the data.
Using the cloud to save big data can reduce the cost of storage, but it also costs privacy and data safety.
One of the challenges that might be faced by the 4.0 industrial revolution is the ability to maintain the highest level of cybersecurity.
Once the Big Data exists, the artificial intelligence system can process it purposively at any time and any place.
This will bring more advantages to the government with the widearea and widespread citizen.
To take advantage of this era, many sectors try to imagine how this kind of technology can be used, including in the social, economic, politics, and science.
The fusion across sectors and countries can increase the benefit of this new era.
With the focus on this research that aims to give social justice in the field of social security system to conduct a new form of transnational healthcare services that might be adopted by the Indonesian government, there must be collaboration multi-stakeholders and multisectoral that work together.
Since 1998, there is a shift in the Indonesian government ruling system.
The reformation that begins the transformation from state-centered to people-centered the government of Indonesia tries to make a formal social security system that can protect all of the citizens.
It takes almost 15 years to finish the entire legal basis that needs to do before the new social security program possibly implemented.
One of the main focuses on this social security system gives healthcare services under Badan Penyelenggara Jaminan Sosial (BPJS).
16 Lee Poh Onn, ‘What Lies Ahead for Malaysian Healthcare?’, (Working Paper, ISEAS Economic Working Paper, 2015), p.6 17 David K.L Quek.
The Malaysian healthcare system: A review, <https://www.researchgate.net/publication/23740 9933> accessed December 20, 2019 https://www.researchgate.net/publication/237409933 https://www.researchgate.net/publication/237409933 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 102 | Kusuma, Hermawan Examining on Indonesian Legal Challenges for… Figure 1.
The Industrial Revolution18 According to the 1945 constitution of the Republic of Indonesia article 28H paragraph (3) and Article 34 paragraph (2), it states that Indonesian people have a right to get social security the government has a responsibility to make a social security system that can protect all of the citizen, especially they who can not afford to have a decent life.
As Indonesia juridical foundation, that constitution clearly and decisively mentions the government of Indonesia to make social security system for its entire citizen.
According to Law Number 12, the year 2006 about the Nationality of the Republic of Indonesia, the Indonesian citizen is everyone who ratified by the constitution or an origin Indonesian.
Derivative regulation for that constitution legislates the law about Sistem Jaminan Sosial Nasional or National Social Security System.
The regulation about the 18 S.I.
Tay et al, above n 1, p. 1389.
Indonesian Social security System states that this program has intended for all Indonesian citizens.
In this article, the government did not mention that only citizens who lived within the country that has a right to get a social security program.
Of course, it may explain that the government must give protection, although their citizen lives overseas.
Furthermore, Law Number 24 the year 2011 about the National Agency of Social Security System Organizer (Badan Penyelenggara Jaminan Sosial Nasional) or known as BPJS’s Law set about the establishment of BPJS Kesehatan and BPJS Ketenagakerjaan.
BPJS Kesehatan is a social security program that applies to all Indonesian citizens and foreign workers that already work in Indonesia for more than 6 months.
While BPJS Ketenagakerjaan is a social security program that intended for any Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Kusuma, Hermawan Examining on Indonesian Legal Challenges for… | 103 Indonesian worker and foreign worker that already work in Indonesia for more than 6 months, that has been designed for covering industrial injury, life insurance, pension plan.
In the BPJS’ regulations, nine principles must be held: “kegotongroyongan” is the first one that manages the contribution on the financial funding; BPJS members contribute following their wages.
This principle enables BPJS members to provide subsidies for each other to cover the medical cost.
The second principle is non-profit, this principle assigns BPJS to use the contribution fund to give the most significant benefit to all of BPJS member, and the third principle in BPJS is an openness to simplify the access of information.
The fourth principle is prudent BPJS has to manage the fund wisely, careful, secure, and orderly.
The fifth principle is accountability; BPJS has a responsibility to be responsible for financial management.
The sixth principle is the probability that enables the BPJS member to continue their medication although they move to another city (within the country) or change their job.
The seventh principle is mandatory membership that requires all of the Indonesian citizens to be a BPJS member step by step.
The eighth principle is a trust fund, the contribution funding is just a deposit, and the last principle is the fund management result that must do to fulfill the needs of the member.19 According to this principle, there is some deficiency.
In the first article of Law Number 40 the year 2004, we can see that the government must ensure that they give protection to all Indonesia citizens as a part of social justice.
However, in the same constitution, in article 4 that mentions about BPJS principle, BPJS only continues to cover the BPJS member that moves within this country.
In other words, the government no longer can give social security if their citizen going overseas.
Furthermore, Law Number 17, the year 2007, states that one of the long terms national targeted equitable development and provides the same access to social services for all the Indonesian people.
19 SJSN’ Law, article 4 This issue can be the legal challenges that have to be faced by the government to bring social justice for all.
As the researcher already mention before, the opportunities to take advantage of 4.0 industrial revolutions is the ability to adapt.
Our legal system can adapt to this shift of an era.
Indonesia’s government has the same direction to bring along the 4.0 industrial revolution across sectors to make a fast improvement of social services at the grass-root level.
Including the task to take the 4.0 industrial revolution, the government policy has already opened up the possibilities to develop mobile device apps, significant data resources, and telemedicine that can reach a more extended scope.
Although the development of this application still in the very first step, we can see that Indonesia has a supportive public policy related to the 4.0 industrial revolution.
As it mentions in the President Decree Number 82 the year 2018 about Health Insurance Article 65, if there is no medical services provider, the government can make a mobile healthcare service, healthcare services based on the telemedicine or other medical services that might be appointed by the ministry of health.
Furthermore, the health ministry set a rule about telemedicine.20 For the healthcare services’ innovation related to the 4.0 industrial revolution, the ministry of health with BPJS makes an application that coined Mobile JKN.
This application is applicable to access your personal information based on BPJS membership.
Figure 2 shows the display of mobile JKN.
Some button still cannot be accessed, but we can see that this application is quite complete in the future.
To make this application, the ministry of health working together with the ministry of civil registration, because this account has some button that will linkage with other(s) accounts, that exists in the same family card.
20 Minister of Health Regulation Number 20 year 2019 about Organizing Telemedicine Services Between Health Facilities Services.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 104 | Kusuma, Hermawan Examining on Indonesian Legal Challenges for… Figure 2.
Mobile JKN Figure 3.
Medical report screening agreement Figure 4.
Medical Behavior question With this application, as we can see in figure 3 and figure 4, the ministry of health also wants to conduct the individual medical record.
We also can find the button to fill essential medical records and our medical behavior.
If we choose to fill this database, the ministry will use our data to make an analytical medical report, based on our data.
This kind of data can be a great start to make a big data center that applicable to track our medical report, the healthcare service that we receive from the social security program, and this will be a data that might be able to be accessed by the medical service provider in the emergency.
As we know, that in an emergency, time is very important, if the database of our medical report accessible at the right time, it can help in the critical condition.
Mobile JKN still a new application and the publication about these apps is at the minimum condition.
Of course, the government needs to get this app ready before a lot of BPJS members start to use it.
But with no socialization about how to use it Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Kusuma, Hermawan Examining on Indonesian Legal Challenges for… | 105 and what the privilege that we might have in the future, it will be difficult to reach a lot amount of individual medical reports and behavior.
As we can see in figure 5, there are also challenges because of the gap in using internet access.
The government still has to assist fill out the form.
If the individual medical record can achieve by the government this will be a great analytical medical resource.
Furthermore, the government of Indonesia can use this Big Data to make regional join research to give more accurate, effective, and efficient prescription or telemedicine for their citizens.
The regional medial Big Data analysis that already exists also can develop as a basic telemedicine that will also give social security coverage for Indonesian people that live overseas.
Moreover, with the adaptive legal system and improvement in the healthcare services using telemedicine and collaboration within ASEAN countries as a region, Indonesia can develop transnational healthcare services.
Figure 5.
Internet access gap21 IV.
CONCLUSION In Southeast Asia, Social Security is not the central concern of the government.
The priority of a nation still focuses on the economic sector, rather than social security, this is a usual case because social security always takes most significant part of National expenditure.
But recently, the awareness of the social security benefit and importance begins to arise within this region.
To make the most suitable social security model, the government of Indonesia and Malaysia still meet with some difficulties.
They still focus on how to give a better social security service in the field of healthcare service with the minimum budget and more comprehensive scope.
The 4.0 Industrial Revolution gives us a new point of view about social security 21 Anis Fuad, Inovasi dan Pemanfaatan teknologi Digital BidangKesehatan, (Presentation, Rakerkesnas, Tangerang, 12 February 2019).
services.
This new trend forces us to imagine how the future will be if we can take advantage of this era.
The fast-changing of the digital revolution to the 4.0 industrial revolution only emphasizes the use of computerization, automation, and using electronic devices, this era constrains the utilization of the digital device with more complexity.
Using the Internet of Things Simulation and Autonomous Robots, this era needs to develop Artificial Intelligence (AI) that processing Big Data.
To follow the 4.0 Industrial Revolution, the government of Indonesia needs to examine its current legal system.
The principal access to enter 4.0 industrial revolutions is the legal system characteristic, whether they can or cannot adapt to the shift and global mechanism.
Moreover, the government has to realize that Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 106 | Kusuma, Hermawan Examining on Indonesian Legal Challenges for… this era requires a multisectoral and multistakeholder collaboration to bring out useful output for their citizen.
The ability to adapt to this current era will give more advantage to Indonesia as a country to provide a more comprehensive scope of social security.
The main challenges of Indonesia’s legal system are to ensure that the government will give an equal healthcare service (as a part of a social security program) to all of the Indonesian people, whether they live within the country or lived overseas.
According to the Indonesian constitution, the government has to provide social justice for all the Indonesian people, but UndangUndang BPJS still only covers Indonesian people that live in the Indonesian territory.
With the existence of the 4.0 industrial revolution, the government tries to improve their healthcare service for Indonesian people in the remote area first, by developing mobile JKN and telemedicine.
Mobile JKN that has been developed by the ministry of health is a great start to enter the 4.0 industrial revolution.
Although it will still need a lot of effort to get that app ready, there is no resistance from the Indonesian legal system.
The system can adapt to the global mechanism of the 4.0 industrial revolution.
This app will also be the principal source of our Big Data in the medical sector.
The government later can develop this data to be a good medical analytical resource based on the individual medical report and behavior.
This also will improve the healthcare service in a remote area that still doesn’t have medical service providers.
Furthermore, developing medical analytic based on this big data can be done across the country within ASEAN as a region.
This also will develop the ability to give more effective, efficient, and accurate diagnose.
Moreover, not only Indonesian people can use telemedicine facilities, but also Indonesian people that live overseas.
This kind of improvement can be a good start to give transnational healthcare services.
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82 | DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.06 International Principles of Sustainable Development and the Challenges to Environmental Rights Enforcement in Nigeria Murtala Ganiyu A. Murgana, Hakeem Ijaiyab aFaculty of Law, University of Ilorin, Nigeria.
Email: muritalaganiyu@gmail.com bFaculty of Law, University of Ilorin, Nigeria Email: hakeemijaiya@unilorin.edu.ng Submitted : 2020-02-13 | Accepted : 2020-04-13 Abstract: Human existence in the environment with disregard for International Principles of Sustainable Environment has often led to overutilization of the nation’s natural and environmental resources, excessive gas flaring with consequences of global warming, flood, environmental degradation, desertification, water pollution, solid waste pollution, diseases and such conditions that violate human rights to a clean and healthy environment.
Necessary International and National legal instruments as well agencies have also been put in place to overcome the above problems and enhance access to environmental justice for victims.
However, it observed that these instruments could still not save mankind from the threat to Sustainable Development and environmental rights.
This paper examines the challenges to the enforcement of environmental rights on sustainable development in Nigeria.
With the qualitative content analysis doctrinal method, the study concludes that the enforcement of human rights on environmental pollution is very poor in Nigeria.
The challenges to enforcement of Environmental rights on sustainable development goals also identify with useful recommendations.
Keywords: sustainable development; human environmental rights; enforcement; challenges.
I.
INTRODUCTION Awareness of the concept of Sustainable Development brings about the idea of how activities of governments, corporate bodies and individuals can be frugally carried out about the exploitation of environmental resources to meet the needs of the present generation without jeopardizing the needs of the future generation.
This vision well contains in the principles of Sustainable Development, which stands for (i) Equity towards future generation or passing a clean and healthy environment to future generation (ii) Equity within our generation or addressing economic inequalities and (iii) Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 83 Integrating Environmental Protection into development processes.1 The idea about the concept of sustainable development is based on the experience that a man in his quest for survival on the environment had to engage in a lot of activities such as mining of mineral resources, petroleum exploration, industrialization, felling of trees in the forest, stone blasting in the quarry, Aviation transportation, etc., all of which their overexploitation have resulted in environmental consequences like global warming, flooding, and erosion, environmental degradation, desertification, environmental pollution, poverty and diseases with impending danger of infringing on the needs of the future generation.2 It is sad to know that the above act of disregard for environmental sustainability is not limited to individuals alone but also perpetrated by the government and corporate organizations in Nigeria.
To reduce instances of unsustainable use of the environmental resources, a legal approach of using international legal instruments at the United Nations was put up to facilitate the implementation of the law on sustainable development, and Enforcement of Human Rights to clean and sustainable environment with the hope of bringing back sanity into the use of environmental resources and bringing conformity with the International Principles of Sustainable Development.
This approach considers plausible since the concept of Human Rights which involves the attainment of alienable rights of people to a good life, and a healthy environment is also found compatible and embraced by the concept of Sustainable Development.
Despite the above measure, it is still generally observed that the problem of sustainable Development continues in Nigeria with overexploitation of the natural resources, continuous gas flaring, constant flooding and general neglect for solid waste pollution thereby subjecting the earth 1 Edith Brown Weiss (ed), Environmental Change And International Law, (United Nations University Press, 1992), 385. population and environment to degradation, unhealthy environment, inequality, and poverty while the issue of enforcement of human rights to environmental remedy for abuse of sustainable development goals remains a far cry.
The purpose of this paper is to examine the challenges to enforcement of human rights on the attainment of Sustainable environmental in Nigeria.
The paper divides into eleven parts for ease of discussion: Section one contains Introduction; Section two discusses the Concept, while section three explains the principles of Sustainable Development.
Section four is about International and Regional Instruments, for promoting sustainable Development, Section five explains the Regulatory Framework for the promotion of Sustainable Development.
II.
LEGAL MATERIALS AND METHODS This paper uses the qualitative content analysis doctrinal method to analyses the problem that arises regarding the environmental problem in Nigeria.
It also analyses legal approach of Nigerian legal instruments and international legal instruments at the United Nations was put up to facilitate the implementation of the law on sustainable development, and Enforcement of Human Rights to clean and sustainable environment with the hope of bringing back sanity into the use of environmental resources and bringing conformity with the International Principles of Sustainable Development.
It also used several cases regarding the environmental rights enforcement and sustainable development principle in Nigeria to explain and analyses the situation in Nigeria III.
RESULTS AND DISCUSSIONS Concept of Sustainable Development According to the United Nations (UN) World Committee on Environment and Development, sustainable development 2 Violet O. Aigbokhaevbo, ‘International Environmental Law Principles’ (2010) 1 Sustainable Challenges University of Benin Journal of Private and Property Law, 10.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 84 | Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... defines as: "Development that meets the need of the present without compromising the ability of the future generations to meet their own needs'3.
Based on the definition, it implies that the definition recognizes the right of future generations to achieve Sustainable Development and the right to utilize natural resources judiciously.
Sustainable Development also means the idea of building and managing our community in a frugal manner so that we can live in it comfortably without consuming all the resources within it.
In line with the above view, Tayo Akeem Yusuf explains Sustainable Development to mean a kind of Development that makes for improvement in the quality of human life within the capacity of earth resources.4 Sustainable development is “also a policy by which the environment can be protected from pollution, degradation, and or restored, replaced or resituated after degradation”5.
It involves economic and development activities that meet the needs of the present generation without compromising, reducing or destroying the ability of the future generation to meet their needs.
Sustainable development has been described to be an ancient concept that embraces international law and requires that any development undertaken takes into consideration the needs of the current generation without endangering the needs of the future generations to benefit from it.6 Judge Weeramantry, in the GabcikovoNagymaros’s case, explains that: 3 The Brutland Report, World Commission on Environment and Development: (WECED) Our Common Future, (New York, Oxford University Press UN DocA42/47, 1987).
Agenda 21, 15.
4 Yusuf A.T, Implementing the nine Principles of a Bustainable Society: Can Nigerian Government Deliver?
(2009) <http//www.nigeriansinamerica.com/article/264/1 /implementing thenineprinciples of –asustainable society-cannigerian governmentdeliver/page1.htm> accessed 26/1/2020.
5 Fagbemi Sunday Akinlolu, ‘The Concept of Sustainable Development: A Double-Edged Sword’, (2012) NIALS Journal of Law and Public Policy, Meiden Edition, 122.
6 Alan Boyle, ‘Human Rights and the Environment: Where Next?’, (2012) 23(3) The European Journal of International Law, 629.
"Sustainable development is thus not merely a principle of modern international law.
It is one of the most ancient of ideas in human heritage.
Fortified by the rich insights that can be gained from millennia of human experience, it has an important part to play in the service of international law.
"7 It, therefore, follows that for any development project to be considered sustainable, it should actively and meaningfully involve the individuals, and they should benefit from it without compromising the ability of the future generation to benefit too,8 and that principle should internationally Practice among nations.
The three pillars of Sustainable Development include Economic, Social and Environmental activities that promote the ability of the present and future generations to live within the earth's capacity and support as follow:9 a.
Economic: This means an economically sustainable system must be able to produce goods and services continuingly, to maintain manageable levels of government and external debt, and to avoid extreme sectoral imbalances which damage agricultural or industrial production.
b.
Environmental: Quotes that an environmentally sustainable system must maintain a stable resource base, avoiding over-exploitation of renewable resource 7 Gabcikovo-Nagymarmos Project (Hungary v Slovakia), ICJReporte (1997), 7, separate opinions, 88.
8 Jonathan Verschuuren, ‘Sustainable Development and The Nature of Environmental Legal Principles’, (2006) (9)1 Potchefstroom Electtronic Law Journal, 24.
9 Justice Mensah, Sustainable Development: Meaning, history, principle, pillars, and implications for Human Action: Literature Review, Cogent Social Science, 20019,p.9 See also: Haris, Jonathan M., Basic Principles of Sustainable Environment: Global Development, (an Environmental Institute Working Paper 00-04, 2000).
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 85 systems or environmental sink functions, and depleting non-renewable resources only to the extent that investment is made inadequate substitutes.
This includes maintenance of biodiversity, atmospheric stability, and other ecosystem functions not ordinarily classed as economic resources.
c. Social: means that a socially sustainable system must achieve distributional equity, adequate provision of social services, including health and education, gender equity, and political accountability and participation.
The main objective of Sustainable development as indicated in the pillars above is to ensure Economic Development, Social Equity and Justice and Environmental Protection.
These three pillars of sustainability introduce many potential complications to the original simple definition.
The goals expressed or implied are multidimensional, raising the issue of how to balance objectives and how to judge success or failure.10 For example, what if the provision of adequate food and water supplies appears to require changes in land use, which will decrease biodiversity?
Assuming the non-pollution sources are more expensive, thus increasing the burden on the poor, for whom they represent a larger proportion of daily expenditure?
Which goal will take precedence?
However, Sustainable development is observed to be highly related to the environment.
Since, the three issues involved are environmental management, environmental resource analysis/evaluation, and environmental protection and conservation.
Accordingly, Habitat 1994, stated in its elaboration that sustainable development "emphasizes how decisions and actions today can affect the future, especially about natural resources availability, environmental health and destruction, and 10 Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conflict between Climate Measure and WTO Law, (Martinus Nuhoff Publisher, Leiden, 2009), 4.
11 Habitat1994: Sustainable Human Settlement Development Implementing Agenda 21, Nairobi, Habitat.
global ecosystems"11.
Therefore, Sustainable Development is fundamentally concerned with the two-way relationship between development and the environment.
Based on the explanation above, it is now clear that more attention has to be exercised to live a balanced life within the environment that should be kept away from destruction.
The environment is the focal point in the drive for development in various sectors and institutions, stressing that there would be no development without the environment.
When the World Commission on Environment and Development presented its 1987 report, "Our Common Future", It sought to address the problem of conflicts between environment and development goals by formulating a definition of sustainable development.12 The Threats to Sustainable Development in Nigeria The poor state of Solid waste pollution arising from indiscriminate dumping of domestic wastes on the highways and public places in almost all the major cities of Nigeria including the Federal Capital Abuja which has now culminated into the outbreak and spread of Lassa Fever epidemic to nineteen states out of thirty states of Nigeria is a great threat to Sustainable Development and the quest of national policy on Environment to live under a clean and healthy environment in Nigeria13.
Presently, Lassa Fever has claimed 41 lives in Nigeria while many cases of Lassa Fever are reported to have spread to Bauchi, Adamawa, Taraba, Kano, Lagos, Kogi, Edo, Ondo, Ogun states among others.14 Persistent cases of oil pollution on water, rivers, aquatic lives and land in Ogoni land in the Niger Delta States of Rivers, Bayelsa, Delta, Cross River the Ondo States, etc through the activities of petroleum oil drilling companies are presently standing a 12 Obafori, Ekpu and Ojealaro, ‘An appraisal of the Concept of Sustianable Environment Under Nigerian Law’,(2009) 28(2) J. Hum Ecol, 135.
13 Channels Television News Headlines at 8PM, Friday 24 January, 2020.
14 Channels Television News Report at 10Pm, Tuesday 28 January 2020.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 86 | Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... great threat to sustainable development in Nigeria.
Continual flaring of gas by the oil companies in the Niger Delta area of Nigeria without a serious legal control in Nigeria has continued to add to Nigeria’s problem of the problem of global warming, climate change, air pollution, respiratory disease, flood, erosion, desertification, death of animals and extinction of wildlife and trees in the forest.
In 2018 and 2019, a lot of people in Port Harcourt and parts of Rivers State suffered serious air pollution from the outbreak of soot, which emanated from persistent flaring of gas.
The soot attack prevented people from getting access to fresh and clean air for breathing.15 Rampant cases of conflict over the destruction of farmland and search for grazing land between the Fulani cattle herders and food crop farmers in Benue, Plateau, Kaduna, Nasarawa, Kogi, Ekiti and the Ondo States of Nigeria is part of the climate change problem and a threat to sustainable development that needs to be addressed in Nigeria.
Continuous illegal felling of trees in the forest reserves by forest poachers and indiscriminate killing of animals in the game reserves by game poachers in Nigeria thereby leading to increasing problems of desertification and extinction of wildlife are current threats to Sustainable Development in Nigeria.
The current lack of interest in implementing treeplanting programs by the Federal and State governments as well as private individuals in Nigeria has led to non-replacement of trees illegally felled for housing construction and making charcoal.
This has led to a grave problem of desertification and a threat to sustainable development in Nigeria.
For example, in BauciState of Nigeria, it is reported that deforestation is having a grave effect on the environment in the state as almost all the trees in the forest reserves in the state have lost to activities of tree cutters.
It is further reported that though the state’s law makes indiscriminate felling of trees an 15 Channels Televiision Environmental Report, Wedneday, 16 October 2019.
16 Channels Television Environmental Report, 2020.
17 United Nations Conference on Human Environment, “Stockholm Declaration” (16 unlawful act, its implementation is not certain.16 All the above therefore require effective implementation of a necessary legal regimes to restore Sustainable Development in Nigeria.
International and Regional Instrument for Promotion of Sustainable Development International legal instruments take the form of a treaty (also called the agreement, convention, or protocol) that binds the contracting states to the negotiated terms.
The process of ratification of an international treaty to become national law involves an agreement with the treaty by the ratifying state and the international body.
However, a treaty has to be ratified by an Act of the national assembly of the ratifying country before it becomes part of the national law of that country.
The international treaties, declarations, and commitments that address human rights and sustainable development include: a. Stockholm Declaration on Environment 1972:17 The need to conserve global resources through the adoption of the International Principles of Sustainable Development started with the Stockholm Declaration of 1972.
This was the United Nations Conference on Human beings and Development of Environment.
As contained in its Brutland Report, Agenda 21 of the Stockholm Declaration conceded to nations the need for nations to explore their resources within their environmental jurisdiction based on their policies.
The above marked the beginning of the adoption of a legal regime to drive the policy for sustainable development of the environment.
b.
The Rio Declaration on Environment and Development 1992:18 This Rio de Janeiro United Nations Convention in Brazil is a more direct global international convention that presses for June1972),UN.Doc.A/Conf.48./14 /Rev.1 (UN.
Pub.
73.11.A.14),10.
18 The United Nations Conference on Environment and Development “The Rio Declaration” UN.DocA/Conference.48/Rev,20.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 87 global adaptation of the principles of Sustainable Development.
It was a departure from the conservative attitude of individual states to a more liberal appreciation of the universal danger of the environment.
In this declaration, environmental conservation is regarded as a key element to sustainable development, it also emphasizes the need to ensure development projects meet the needs of both present and future generations.
This declaration further, emphasizes the importance of poverty eradication as a means to achieve development and spells out the duties of states to protect their natural environment c. The United Nations Convention on the rights of Child19 It is a common concern that most of the global international instruments on human rights do not mention the environment because they were drafted before the emergence of environmental law.
However, Article 24 of the UN Convention on the Right of Child speaks of the provision of clean drinking water and the dangers of pollution.
The above provision can be claimed to speaks in support of Sustainable Development.
d. African Charter on Human and Peoples Rights (1987).20 The African Charter on Human and People's Rights, a regional legal instrument for promoting Sustainable Development states in article 24, that "all people shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind."
It is observed that the provisions of the African Charter on Human and Peoples Rights are the first international instrument on human rights to contain an explicit guarantee of environmental quality.
Other articles within the Charter that address the 19 THE Unite Nations Convention on the Rights of the Child November 20 1989, article 24.
20 African Charter on Huma and Peoples Rights, Article 24.
21 National policy on Environment in Nigeria 1988, Paragraph 30(A).
rights of people to participate democratically in their government; to work with equal pay and benefits; to enjoy physical and mental health and well-being; to receive an education with due respect and protection for traditional values.
All of these rights are to be enjoyed in an environment that is favourable for development.
Regulatory Framework for Promotion of Sustainable Development in Nigeria The national regulatory framework relevant for the promotion of sustainable development of the environment in Nigeria include the National Policy on Environment, the Constitution of the Federal Republic of Nigeria 1999 (As amended), the NESREA Act, the Environmental Impact Assessment Act, and the State Environmental Protection law in Nigeria.
The National Policy on Environment in Nigeria is specifically to promote Sustainable Development.
Paragraph 30(a) of the policy seeks for the enactment of a law for achieving sustainable development in Nigeria21.
The Constitution of the Federal Republic of Nigeria 1999 (As amended) is another national legal instrument that seeks for the promotion of Sustainable development.
Section 20 of the Constitution provides that “the State shall protect and improve the environment and safeguard the water, air, and land, forest, and wildlife of Nigeria'22.
Although the 'right' provided under this section is not justice able, it, however, recognizes the need for embracing the International Principles of Sustainable Development.
The National Environmental Standards Regulations Enforcement Agency (NESREA) Act 2007 has its provisions on S.1 (2) dedicated to promotion to sustainable Development in Nigeria, particularly, the natural resources.23 This act which focuses on the protection and development of natural resources in Nigeria, and covers a lot of areas of environmental concern such as monitoring 22 The Constitution of the Federal Republic of Nigeria 1999(As amended), Section 20.
23 The National Environmental Standards Regulations Enforcement Agency Act 2007, section 2(1).
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 88 | Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... of environmental standards and regulations on air, land, water body, forest, and sea, biodiversity excluding the oil and gas sector.
The Act gives power to the agency to make and review regulations on air and water quality, control of harmful substances, and other forms of pollution, all of which are geared towards a sustainable environment.
The Environmental Impact Assessment Act (EIA) is another legislation for the promotion of Sustainable development.
The significance of the Act is to ensure a sustainable environment by assessing the potential impact of proposed public and private sector projects on the environment before embarking on the construction of such projects.24 The specific amount of money is to be paid as fine for non-compliance with the provisions of EIA.
The National Environmental (Soil and Flood Control) Regulations 2011 aims at achieving a sustainable environment through restriction of land-disturbing activities and usage that are harmful to human health and the environment.25 The Mineral Act is another law that aims at achieving a Sustainable Environment.
The Act requires from the mining investor, submission for approval, relevant documents on mining environmental compliance of project to the Mines Compliance Department.
There is also, the State Environmental Sanitation and Protection law for protecting the thirty states of Nigeria against environmental pollution and other activities that will affect Sustainable Development.
However, it should be known that the application of these laws, for achieving Sustainable Development in Nigeria is faced with some limitations.
Section 2O of the Constitution of Federal Republic of Nigeria 1999(As amended), which seeks for living under a clean and healthy environment falls under section two of the constitution which makes it legally unenforceable.
The power of the NESREA Act which covers other forms of pollution, however, limited as it can’t 24 Environmental Impact Assessment Act1992, Section 14.
25 National Environmental (Soil and Flood Control) Regulations 2011. apply to incessant air pollution of gas flaring from the oil sector in the Niger Delta area.
Other environmental provisions of the Act suffer weak enforcement considering the poor state of the environment and public health arising from solid waste pollution and the outbreak of Lassa fever and Cholera in Nigeria.26 Also, rampant reports on indiscriminate felling of trees in the forest for building construction and burning of wood for charcoal supply which has caused serious deforestation in Nigeria.
This shows that the NESREA Act is far from achieving the objectives of a sustainable environment in Nigeria.
Failure of the Environmental Sanitation law in the thirty-six states of Nigeria, including Abuja and the state Environmental Protection agencies to overcome the ever-increasing problem of an indiscriminate solid waste dump in Nigeria, also shows that the limitation of the law in achieving Sustainable Development.
The Environmental Impact Assessment Act also suffers the serious problem of noncompliance from the public and private sector in Nigeria going by the spate of complaints on how erosion has caused the collapse of public bridges on Federal roads in Adamawa, Bauchi Taraba, Bayelsa, Delta Benue, and Kwara states, while lack of proper compliance with project requirements there are report of incessant building collapse and gas explosion in gas outlets in Lagos State, Anambra, Kwara, Kano, Ogun States and other parts of Nigeria.27 Environmental Rights The concept of Human rights is very wide and has been defined in many ways.
Contemporarily, Human rights are the rights that are recognized as legitimate to human beings globally and not a privilege.
The rights are usually divided into two categories: (1) civil and political rights, and (2) economic, social, and cultural rights.
Civil and political rights ensure moral and political order and include the right to life, participation, and equality.
Moreover, 26 Obi Ogbalu, ‘Environtal Regulation in Nigeria’ 10 (6) Oil and Gas Law and Taxation Review, 25.
27 Channels Television Environmental Report November, 2019.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 89 economic, social, and cultural rights maintain principles for an individual's well-being.
Therefore, environmental rights fall within the second category of the above.
Environmental Rights is an aspect of Human Rights that centres on the rights of human beings while existing in the environment and it focuses on the rights of human beings to clean a healthy and sustainable environment.28 Following careful study of human rights, it is observed that apart from the UN Convention on the Rights of the Child that guarantees clean drinking water and protection from risks of pollution, no other Human Rights treaty proclaims general rights to environment Environmental rights are majorly implied as part of socioeconomic rights, as they are not explicitly present in most of the international instruments.
However, recent developments have shown that Environmental Rights are now contained in Article 24 of the African Charter on Human and Peoples Rights.
The African Charter on Human and Peoples Rights is observed today as the first international instrument that contains a clear guarantee for the protection of the environment.
The efficacy of these rights was tested in a case between the People of Ogoni Land v Federal Government of Nigeria.
The petition filed before the African Commission on Human and Peoples Rights was on violation of rights to a satisfactory environment by the Federal Government of Nigeria through the uncontrolled activities of the foreign oil companies.
The Commission acting on the petition and applying the articles for control on the provision of a satisfactory environment held that the Federal Government of Nigeria had violated the Charter guaranteed right to a satisfactory environment favourable to development.
The Interdependence of Environmental Rights and Sustainable Development Sustainable development is highly related to the environment.
The three issues 28 The adopted Aarhus Convention of June 25 1998 can be regarded as a kind of environment a agreement as it links Environmental Rights and Human Rights and acknowledges that present involved in the relationship are environmental management, environmental resource analysis/evaluation, and environmental protection/conservation.
Also, Habitat 1994, stated in its elaboration that sustainable development "emphasizes how decisions and actions today can affect the future, especially about natural resources availability, environmental health, and destruction and global ecosystems".
Sustainable development is fundamentally concerned with the two-way relationship between development and the environment.
It is now clear that more attention has to be exercised to live a balanced life within the environment that should be kept away from destruction.
Sustainable human development seeks to expand choices for all people, including men, women, and children of the present and future generations while protecting the natural systems on which all life depends.
Moving away from a narrow, economy-centred approach to development, sustainable human development places people at the core and views humans as both a means and an end of development.
Thus sustainable human development aims to eliminate poverty, promote human dignity and rights, and provide equitable opportunities for all through good governance, thereby promoting the realization of all human rights economic, social, cultural, civil and political.
The promotion of environmental rights is particularly relevant in the context of globalization and its potential for excluding and marginalizing weak members of the international community and people with limited resources, most especially the indigenous people.
Environmental rights afford protection against such exclusion and marginalization.
Sustainable Development and Environmental Rights are found related in the sense that if development is unsustainable whereby people’s health is endangered due to environmental degradation and pollution, where rule of law generation owes the future generation see http://www.unece.org/envy/welcome.html,access ed January 26. http://www.unece.org/envy/welcome.html,accessed http://www.unece.org/envy/welcome.html,accessed Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 90 | Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... and equity do not exist; where natural resources are confiscated or denied under whatever guise; or where large numbers of people live in abject and degrading poverty.
Similarly, environmental rights are enhanced when equity or poverty reduction programs or development meets the need of the present without compromising the ability of future generations to meet their own needs.29 The view about the linkage between Environmental Rights and Sustainable Development has, however, been endorse in the functions of many international Human Rights Organizations.
The Universal Declaration of Human Rights is its linking of rights with responsibilities for Sustainable Environment, states that it is the responsibility of every individual and every organ of society to promote respect for human rights and to secure their universal recognition and observance and that all human beings should relate with one another in a spirit of brotherhood.
Article 29 states:30"Everyone has duties to the community in which alone the free and full development of his personality is possible."
These concepts form the Universal Declaration are important in the context of sustainable human development; by implication, social capital is a critical factor for development, and full development of man is only possible in a conducive environment.
Moreover, the Rio Declaration on Environment and Development 1992 introduces environmental conservation as a key element to sustainable development.
According to the Rio Declaration, development projects must meet the needs of both present and future generations.
This means that humans need to have the ability to live "a healthy and productive life in harmony with nature".
This declaration also emphasizes the importance of poverty 29 Tim Hyward, Constitutional Environmental Rights, (New York, Oxford University Press, 2005), 7.
30 Universal Declaration of Human Rights 1948, Article 29.
31 In July 1994 Fatimah Zohra Ksentini, submitted a final report of the UN on Human Rights and the Environment.
Mrs Ksetini, the special UN Rapporteur on Prevention of Discrimination and eradication as a means to achieve development.
Moreover, the 1986 UN Declaration on the Right to Development states that development is a human right.
That proclamation was strengthened by the Declaration of the 1993 UN World Conference on Human Rights, which says that "the right to development is an inalienable human right and an integral part of fundamental human freedoms.” The UN global conferences on population and development (Cairo) and women (Beijing) and at the World Summit on Social Development (Copenhagen) further confirmed the above view.
The indivisibility of Environmental Rights and Sustainable Development has also summarized by Special Rapporteur Fatma Zohra Ksentini and accompanied by a Draft Declaration of Principles of sustainable Environment.31Also, a series of reports have been received by the UN Human Rights Commission from Ms. Ksentini on the narrower topic of the impact of toxic and dangerous products and wastes on human rights.
Also, regional and-international tribunals have allowed victims to bring cases based on rights violations caused by environmental harm, and some national tribunals have accepted suits claiming violations of a right to a healthy environment.32 Notwithstanding the above developments, no binding international agreement has had environmental rights as its primary focus.
Also, the issue continues to suffer from in attention because that it fails to fit neatly within the agenda of either the human rights movement or the environmental movement.
Few international human rights organizations have programs devoted to this set of rights; likewise, movements focused on protecting the environment do not generally have as their Protection of the minorities made her final submission in response to a demand for sub commission report on how to overcome the problem of environment in relation to human rights.
32 See Allan Boyle and Michael Anderson (eds) Human Rights Approach to Environmental Protection, (Oxford University Press, 1996), 20.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 91 aim the more human-cantered goals of environmental rights, which commonly include social justice issues such as the disproportionate suffering of poor, indigenous, and minority communities from toxic industrial activity.
Even the environmental justice movement in the United States predominantly limits its scope to situations occurring within the nation's borders.36 Environmental Human Rights Enforcement in Nigerian Courts Environmental human rights include those basic human rights that pertain to minimum biological requirements, notably of food, water, and shelter; and the civil and political rights that enable individual and group participation in the creation of institutions that ensure social and ecosystemic viability.
In past eras, when economies and societies were place-based, these rights were mutually interdependent.
In today's world, where cultural identity is fluid and involves membership in multiple communities, and where economies are shaped by global as well as local forces, control over local resources is rarely in local user hands.33 Individual and group efforts to secure necessary environmental human rights often conflict with broader governmental efforts to control natural resources.
Such conflicts can be characterized as environmental human rights abuses when political and economic institutions and processes: (1) wrest control over traditionally-held resources without negotiation or compensation, or when such institutions continue actions that knowingly harm the critical resources that sustain a cultural way of life; (2) degrade the environment, and place individuals and populations at risk.
To avoid the above precarious condition, enforcement of human environmental rights through the court of law is therefore considered the legal and legitimate way out.
Protection of fundamental rights of citizens and where necessary balancing the 33 Oluwatoy in Adejowo-Osho, Evolution of Human Rights Approach to Environmental Protection, 22.
34 {1996} 4NWLR(pt445) 657. conflicting interests of parties in a dispute are part of the core duties of courts.
This position was attesting to in the case of Olawoyin v Attorney General of Nigeria, where it held that the court has the power and jurisdiction to safeguard Nigerians and prevent infringement of such rights.
Buttressing the above, section 46(1) and 2 of the Constitution of Federal Republic of Nigeria 1999(As amended) states that any person whose right has been or likely to infringe upon can seek a remedy in a court of law.
Similarly, the Fundamental Rights (Enforcement Procedure Rules) 2009 also made for the regulation of rules of Practice and Procedure for the enforcement of Human Rights in Nigeria.
Experience in Nigeria shows that the oil sector, where environmental degradation is most prevalent, the all-pervading influence of the oil companies and (he paternalistic attitude of the judges towards them in matters relating to environmental hazards created by the companies have made the enforcement of environmental laws ineffective.
Contrary to the Indian situation where an act damaging the environment ordered to cease by the court despite the significant loss of investment that would occur, the situation in Nigeria had been different until quite recently.
The Nigerian judiciary has been reluctant to give orders compelling companies whose operations are damaging the environment to cease the actions complained of.
The consideration of the potential loss of revenue and investment outweighs considerations for the protection of the environment.
This is due largely to the fact that the Nigerian economy is dependent on the revenue from the sale of crude oil.
Several oil-related cases filed in the courts in Nigeria alleging pollution from oil exploration, loss of income, loss of property, contamination of drinking water leading to water-borne diseases and pollution of land had been lost in court for lack of locus standi or declared un-justiciable instead of considering the effects of environmental damage.
In the cases of Shell v, TieboV1134, Shell v. Isaiah,35 "Seismograph Services v. Mark36, Ogiale v. Shell,37 Shell v. 35 {1997} 6NWLR(pt508)226.
36 {1993}7NWLR(pt304)293.
37 {1997}1NMLR(pt480).
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 92 | Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... Ambah.38The general characteristics that run through all the above-mentioned cases are all claims for compensation for the operation of oil companies in their local communities; they are usually oil spillage claims for loss of income from fishing and farming, pollution of drinking water, damage to farmlands and the environment.
Also, in J. Chinda & Ors v Shell BP Petroleum Company of Nigeria Ltd, the plaintiff’s claim that a lot of damage had done to his economic trees, land, and house as a result of negligence in the control and management of the defendant’s gas flare site which located within a short distance to the plaintiff’s house.
The court’s decision on this case was that the plaintiff failed to produce evidence of negligence in the defendant’s operation, and the action failed.
The case of Amos v Shell BP Petroleum is another test on the rejection of environmental human rights.
This case is of relevance in the sense that it involves the issue of Public Nuisance and Locus Standi.39 In this case, the plaintiff’s action against the defendant alleging that the erection of a temporary dam across the entire Ogba community caused severe floods on the community land and the creek to the extent that the community members could not paddle their canoes and transport goods and people to the market.
The court decided the case against the plaintiff on the ground that the creek was public water, and the act of blocking the creek was a public nuisance, unless the plaintiff had unusual proof that he suffered special personal damage from interference with public rights, his claim lacked merit in court.
The court overlooked the issue of the flood, which was environmental damage in the case and considered the issue of locus standi.
There is also the case of Joel Odim & Ors v Shell BP over cleaning oil from river water in Ogoni land, which not upheld in court for many years.
The above defects explain why the enforcement of 38 {1999}3NWLR(PT593).
39 The term Locus Standi refers to legal capacity to institute proceding as per Justice Fatai Williams I the case of SenatorAbrahamAdesanya v President Federal Republic of Nigeria.
environmental rights is weak in Nigeria.
Although it is now a fact from the above that securing access to human environmental rights is weak in Nigeria, it equally observes that there are few cases where the courts in Nigeria have upheld decisions in of consideration for sustainable development and environmental rights: Such include the case of Shell Petroleum Development Company v destruction of economic trees and loss of animals in Ofugbene, Burutu Local Government Area of Edo State due to spillage of crude oil from the defendant’s/appellant’s Trans Forcadoe Petroleum oil pipeline that was laid over the land of the plaintiff/respondents.
Having lost this case at the first instance at the lower court on the ground of reasonable evidence to prove the negligence, the plaintiff/respondent eventually won the case as the appeal court on the ground of want of care.
In Umudje v Shell Petroleum Development Co (Nig) Ltd.40 The trial judge held the defendant liable for negligence for the construction of culverts, which blocked water passage and resulted in drying up of lakes and destruction of fishes in the ponds of the plaintiff.41There is also the case of AG Lagos v A.G Federation and 3 Ors (2003),42 where a decision in the case based on consideration for sustainable development and the case of Oronto Douglas v Shell BP43 which decided in favour of the plaintiff.
Apart from the above few cases, it generally observes that achieving effective enforcement of environmental rights on violation of goals of International Principles of Sustainable Development in Nigeria is still a big challenge that needs to surmount with all seriousness.
The Challenges to Enforcement of Human Rights n Application of International Principles of Sustainable Development in Nigeria 40 See Adeoye, R.O., Environmental Rights and Sustainable Development, (LLM Seminar Paper, Faculty of Law, University of Ilorin, Nigeria), 15.
41 {20000}10NWLR248.
42 {2003}6SC 24.
43 {1998}LDELR6457(CA).
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 93 The unenforceability or non-binding status of the provisions of Section 20 of the Constitution of the Federal Republic of Nigeria (As amended) is a big legal challenge to enforcement of environmental rights in Nigeria.
The Constitution of Nigeria does not grant an express right to a healthy, clean environment.
Section 20 of the Constitution of the Federal Republic of Nigeria 1999 provides that 'the State shall protect and improve the environment and safeguard the water, air, and land, forest, and wildlife of Nigeria'44.
The 'right' provided under this section is not justice able; it cannot be relied upon by a plaintiff in an environmental violation case in the court of law.
It is only in Section 33 of the Constitution that provides for the protection of fundamental rights to a good life.
Whether the courts in Nigeria will be ready to consider this view in cases bothering on enforcement of environmental rights as it did in other jurisdictions like India is another issue entirely.
Lack of compliance with the law on environmental protection is another legal challenge to the realization of environmental rights in Nigeria.
Particularly, Federal and state governments have identified as the worst offenders for not implementing or keeping to the rules and laws on environmental protection.
For example, both the federal environmental regulation agency(NESREA) and State Environmental Protection Agencies in the 36 states of Nigeria including the Federal Capital Territory in Abuja are presently guilty of negligence and failure to dispose or make adequate provision for disposal of everincreasing urban solid waste in their respective states thereby contributing to the poor state of environmental sanitation and further denying people access to clean, safe and healthy environment as provided in the 44 Emanuel E. Okon, The Legal Stts of Sustainable Development in the Nigerian Environmental Law <http://dx.doi.org/10/4314/jsdplv712.6accessed on 25, January 2020, 116.
45 Ibid.
46 Orji Uchenna Jerome, ‘Enchancing the Implementation of Sustainable Development in Nigeria through Legal Strategies’, (2012) 8(1) Constitution and relevant environmental legislation in Nigeria.45 Also, these government agencies are guilty of non-compliance with the Environmental Impact Assessment Act on government project, which now results in more problems of environmental degradation, erosion, and building collapse in Nigeria.
The access to enjoyment and enforcement of environmental rights in Nigeria will be more enhanced if both the government and their agencies learn to do their bidding by complying with the environmental law and regulations.
The concentration of power of Locus Standi on governments and government agencies over matters of public nuisance and environmental governance by courts in Nigeria is another legal challenge to enforcement of environmental rights in Nigeria.46 Since it is only the National Environmental Standards Regulation Enforcement Agency (NESREA) and the StatesEnvironmental Agencies that have to enforce power environmental law and policies in Nigeria, non-government agencies and individuals do not have locus standi to bring claims for enforcement of environmental law for public environmental degradation based on the principles of Sustainable Development.
This approach will continue to be a set-back to the realization of environmental justice in Nigeria and possibly the main reason why Nigerian environmentalists seek environmental justice outside Nigeria, as in the case of Saro-Wiwa and 9 Ors v Royal Dutch Petroleum Company.47 Other challenges include the poor attitude of people at reporting activities that involve environmental violations in court but rather resulting in self-help or militancy as displayed in many parts of the Niger Delta Area in Nigeria.
Poor enlightenment, lack of Consilience: The Journal of Sustainable Development, 93.
47 Mohammed Tawfiq Ladan, Legal Issues in Environmental Sanitation and Waste Management in Nigeria: Role of Environmental Courts, A (Seminar paper presented to Magistrateson Environmental Sanitation Law, National Institute of advanced Legal Studies Abuja Nigeria, 2015.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 94 | Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... information, and lack of understanding of the need to enforce environmental rights by members of the public over incidences of environmental pollution have constituted another challenge to enforcement of environmental rights on sustainable Development in Nigeria.48 IV.
CONCLUSION Having found that both the concept of Sustainable Development and Human Rights are strongly interrelated, the study examined cases on the enforcement of environmental rights on implementation of International Principles of Sustainable Development as it relates pollution and degradation of the environment in Nigeria and concluded that enforcement of environmental rights on environmental pollution and degradation cases is still weak due to a lot of challenges.
It found that unenforceability of Section 20 of the Constitution of Federal Republic of Nigeria 1999(As amended)lack of compliance with environmental protection law and regulations by Federal and State governments environmental protection agencies, poor attitude of people at reporting cases of environmental violations, poor and lack of information enlightenment on enforcement environmental rights are the challenges confronting enforcement of environmental rights on the International Principles of Sustainable Development.
Accordingly, it recommended that section 20 of the constitution of the Federal Republic of Nigeria 1999 should be amended to become enforceable or transferred to Section 33 of the Nigerian Constitution to become part of the enforceable fundamental human rights to life.
Also, there should be effective compliance with environmental protection laws and regulations in Nigeria by the Federal and state government’s Environmental Protection agencies.
There should be devolvement of concentration of power Locus Standi on federal and governments in Nigeria to create room for public-private participation in environmental litigations.
There should be more enlightenment activities for improving 48 Ibid.
awareness and participation of private individuals in the enforcement of environmental rights on violation of Principles of sustainable development.
REFERENCES Book and Report Boyle, Allan and Michael Anderson (eds) Human Rights Approach to Environmental Protection, (Oxford University Press, 1996)Weiss, Edith Brown (ed), Environmental Change And International Law, (United Nations University Press, 1992) The Brutland Report, World Commission on Environment and Development: (WECED) Our Common Future, (New York, Oxford University Press UN DocA42/47, 1987) Tim Hyward, Constitutional Environmental Rights, (New York, Oxford University Press, 2005).
Voigt, Christana, Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law, Martinus Nuhoff Publishers, Leiden, 2009.
Journal Aigbokhaevbo, Violet O., ‘International Environmental Law Principles’, (2010) 1 Sustainable Challenges University of Benin Journal of Private and Property Law.
Akinlolu, Fagbemi Sunday, ‘The Concept of Sustainable Development: A DoubleEdged Sword’, (2012) NIALS Journal of Law and Public Policy, Meiden Edition.
Boyle, Allan, ‘Human Rights and the Environment: Where Next?’, (2012) 23(3) European Journal of International Law.
Jerome, Orji Uchenna, ‘Enchancing the Implementation of Sustainable Development in Nigeria through Legal Strategies’, (2012) 8(1) Consilience: The Journal of Sustainable Development.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Murgan, Ijaiya International Principles of Sustainable Development and the Challenges... | 95 Obafori, Ekpu and Ojealaro, ‘An appraisal of the Concept of Sustianable Environment under Nigerian Law’, (2009) 28(2) J. Hum Ecol.
Okon, Emanuel E., ‘The Legal Status of Sustainable Devlopment in the Nigerian Environmental Law’, (2016) 1(2) AfeBabalola University Journal of Sustainable Development and Policy.
Mensah, Justice, ‘Sustainable Development: Meaning, history, principle, pillars, and implications for Human Action: Literature Review’, (2019) Cogent Social Science.
Verschuuren, Jonathan, ‘Sustainable Development and the Nature of Environmental Legal Principles’, (2006) (9)1 Potchefstroom Electtronic Law Journal.
Research Adeoye R.O, Legal Analysis of NESREA on Environmental Protection and Climate Change in Nigeria, (PhD Law Thesis, University of Ilorin, Ilorin, Nigeria, 2017).
Adeoye, R.O., Environmental Rights and Sustainable Development, (LLM Seminar Paper, Faculty of Law, University of Ilorin, Nigeria).
Haris, Jonathan M., Basic Principles of Sustainable Environment: Global Development, (an Environmental Institute Working Paper 00-04, 2000).
Ladan, Mohammed Tawfiq, Legal Issues in Environmental Sanitation and Waste Management in Nigeria: Role of Environmental Courts, (Seminar paper presented to Magistrateson Environmental Sanitation Law, National Institute of advanced Legal Studies Abuja Nigeria, 2015), http.rssrn.com.doi.org.
Internet Source T. Yusuf A., Implementing the nine Principles of a Bustainable Society: Can Nigerian Government Deliver?(2009).
<http//www.nigeriansinamerica.com/a rticle/264/1/implementing thenineprinciples of –asustainable societycannigerian governmentdeliver/page1.htm> accessed 26/1/2020.
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Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 1 Volume 2(S) No.
1 (2015) PRESS FREEDOM IN SINGAPORE AND MALAYSIA: DEFAMATION AND OTHER CONSTRAINTS Georgia Kate Chapman Law School, University of Wollongong ABSTRACT This paper focuses on the arguments around restriction on freedom of the press in the Strong States of Singapore and Malaysia.
It assesses the presence of constraints on press freedoms in democratic western countries imposed by corporation rather than the nations and the similar effects that these constraints may have on the bias present in publicly accessible news reporting.
It argues that independence of the press does not only require protection from legal and executive regulation, but also protection from large media corporations and their political alignments.
This report will assess the bias of reporting and news media publication that exists in Malaysia and Singapore due to legislative and regulatory constraints as opposed to the bias that exist in the western liberal democratic nations of the United Kingdom (UK) and the United States of America (USA) due to Media Organisation control.
Key words: freedom of press, publication control, media and politics.
I.
INTRODUCTION Civil defamation law limits the capacity of media outlets to report the news freely.
There are ever present constraints to media from both corporate and political influences 1 .
These create an interesting priority list; a hierarchy that does not put the interests of the individual and their access to accurate information first, or second.
Global media groups are the key social actors playing a large part in media accessibility; shaping the social world by exerting control over issue-framing and information gate keeping.
One of the largest media organisations in the world, NewsCorp (top 5) is an example that will be used in this paper to outline influences on public’s access to media in the liberal democracies of the UK and the USA.
The separation of corporation and State from power is difficult and it is 1 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore 129.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 2 Volume 2(S) No.
1 (2015) even harder to determine whether it is to be the direct dominator of the other 2 .
This will assist in supporting the view that the power which large media organisations possess can have large influences over both politics and legislation; moreover, their use of this power in changing access to the media and journalist ability to freely express opinions 3 .
Defamation legislation and the application of this legislation and regulation in Malaysia, Singapore—as opposed to the UK and the USA—will support the argument that restrictive regulation creates political and corporate alignments over press freedom and public access to information.
Freedom of expression and speech is topical around the world.
Article 19 is an example of this international focus 4 .
II.
DEFAMATION LEGISLATION AND REGULATION The United Kingdom (UK) and The United States of America (USA) In the UK, civil actions around defamation for damages may be made brought to the High Court if the statement is defamatory, identifies or refers to the claimant, and were published’ 5 .
This is covered by the Defamation Act 2013 6 .
The defamation against media generally deals with libel—the publication of a statement in permanent form, generally; a. print, b. broadcast on TV or radio, c. film, and d. Internet.
2 Arsenault and Castells, (2008) ‘Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis’ 23(488) International Sociology 489.
3 Ibid.
4 Article 19 and Suaram, (2005) Freedom of Expression and the Media in Malaysia www.article19.org/data/files/pdfs/publications/malaysia-basline-study.pdf.
5 Defamation Laws in UK, 25/5/14, Kelly/Warner: International Defamation Law Legal Database, <http://kellywarnerlaw.com/uk-defamation-laws>/.
6 Defamation Act 2013 (UK).
http://www.article19.org/data/files/pdfs/publications/malaysia-basline-study.pdf Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 3 Volume 2(S) No.
1 (2015) The rule in Reynolds 7 (UK) outlines recognition of ‘responsible journalism’, via a ten point test determining how information was collected and verified, and how consultative steps had been taken prior to publication 8 .
It also addresses the urgency to publish.
Thus, it is a public interest test rather than a political or economic test which allows individuals to represent themselves better or to publish media without any fear of litigation.
This test ensures whether the information published is appropriately sought and presented.
In the USA, defamation legislation is dealt with by each individual state.
It is also referred to as slander.
Here, defamation is directly related to the First Amendment 9 ; making a case in defamation much more difficult for a plaintiff to bring about; as opinion cannot be considered as defamation in the USA.
Moreover, in this nation, service providers on the internet are not held to be accountable for defamatory statements made by visitors to their sites.
Large portions of the media outlets in both nations are owned by NewsCorp 10 .
The influence of NewsCorp and the large political authorities within the UK and the USA will be investigated further in this article.
In both of these democratic nations, defamation legislation is used predominantly by celebrities who feel that their image has been defamed in media.
Malaysia and Singapore There are high levels of media regulation within both Malaysia and Singapore; both of which are non-liberal Asian democracies.
Within non-liberal Asian democracies—sometimes referred to as semi or pseudo democracies 11 —government regulation over access to media and 7 Reynolds v Times Newspapers Ltd [2001] 2.
8 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore 135.
9 United States Constitution amend I.
10 Arsenault and Castells, ‘Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, (2008), 23:488, International Sociology, 495.
11 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore 131.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 4 Volume 2(S) No.
1 (2015) press freedoms is high 12 .
There is large political pressure on editors of publication, in order to ensure that information provided to the public is not damaging the powerful political parties of these nations.
In Singapore, the Newspaper and Printing Presses Act (NPPA) 13 will not circulate foreign publications if they are seen to be detrimental to the local political regime 14 .
These laws also require the possession of a licence for publishers to be able to release press to the public.
The licensing has been—from interviewees—the most onerous element of the press freedom restrictions within Singapore 15 .
This regulation is seen to be more restrictive than the defamation legislation itself —Defamation Act (cap.
75).
In Singapore, it has been seen that in the court a media defendant has never succeeded against a government plaintiff 16 .
This historical track has led to self-censorship by many journalists, for fear of financial consequences and licensing removals 17 .
It is interesting to note that the Singaporean judicial system has not come under scrutiny of process.
However, it is the restrictive legislation causing the removal of press freedoms and access to media for the public.
The Malaysian legal system has historically imposed temporary bans or content censorships on media that ‘displeased the government 18 ’.
Article 10 of the Malaysian Constitution guarantees the right to freedom of expression: ‘every citizen has the right to freedom of speech and expression… All citizens have the right to assemble peaceably and without arms 19 ’.
This right to freedom of expression has many restrictions placed on it.
In 12 Ibid, 132.
13 Newspaper and Printing Presses Act (rev.
edn 2002).
14 Whiting and Majoribanks(2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore, 132.
15 Ibid, 142.
16 Ibid, 136.
17 Ibid, 132 and 145.
18 Ibid, 132.
19 Constitution of Malaysia 1957, art X. Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 5 Volume 2(S) No.
1 (2015) reality, it may lead to heavy fines or potentially a prison sentence 20 .
It can be seen that there is also strict legislative control under the Printing Presses and Publications Act (PPPA) 21 .
Due to these restrictions, there is an increasing level of self-censorship by editors and journalists to ensure that they are able to renew their publishing licences.
The Royal Commission of Inquiry in 2007, following the ‘Lingham Tape’ matter, led to Malaysians and others being able to open a dialogue around the issues within the Malaysian Courts with regard to defamation cases for media publication.
The court system in Malaysia has come under scrutiny for the efficiency and transparency of its judiciary, following a group of highly contentious defamation cases in the 1990’s where government and business interests were reported by international reporters and journalists.
The damages awarded to the plaintiff’s in these cases were exorbitant and received criticisms in an international sphere 22 .
This belief that the courts ‘defer to the State at the expense of the plaintiff’s rights’ 23 , outlines the lack of faith of in those in power.
‘Responsible journalism’—based on Reynolds 24 —has been addressed in both Malaysia and Singapore with different outcomes of importance in each legal system.
Malaysian courts have accepted the idea of responsible journalism to the extent of critical speech—in principle 25 .
Singaporean courts have rejected the rule on all occasions.
This rejection of responsible 20 Randhawa et al, (2005) Freedom of Expression and the Media in Malaysia: Part of A Series of Baseline Studies on Seven South East Asian Countries 6.
21 Printing Presses and Publications Act 1984 (Act 301).
22 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore, 136.
23 Ibid, 136.
24 Reynolds v Times Newspapers Ltd [2001] 2.
25 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore, 135.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 6 Volume 2(S) No.
1 (2015) journalism, allowing for appropriate verification, shows that press freedoms do not exist under the legislature or the judiciary in Singapore and are still restrictive in Malaysia 26 .
These restrictions have led to a ‘chilling’ effect on media, reporting, and journalism in both of the nations, where levels of self-censorship have increased over the last 20 years following exorbitant claims by political and business officials against individual journalists and media outlets.
This chilling effect occurs as individuals are deterred from publishing items that they believe could even potentially cause issue for the powerful political parties of the United Malays National Organisation (UMNO) Malaysia and the People’s Action Party (PAP) Singapore 27 .
III.
POLITICS OVER MEDIA ORGANISATIONS Malaysia and Singapore The strength of the PAP in Singapore and the UMNO in Malaysia , along with a concentration of media ownership (aligned with these parties), shows that revenue and business interests fall a close second to the political interests of the affluent politicians in both nations.
Although there might be relationships with editors and owners of publishing houses, the political power that the PAP and UMNO have over media organisations damages the credibility of that media by overriding newsworthy items and appropriately balanced coverage 28 .
International press is not owned by the politicians; yet, it is closed monitored by the government through the PPPA and the NPPA.
26 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore, 135.
27 Thio, (2010) ‘Soft Constitutional Law in Non Liberal Asian Constitutional Democracies’, 8(4) International Journal of Constitutional Law 766-799.
28 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore, 135.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 7 Volume 2(S) No.
1 (2015) The alignment of the judiciary, executive, and legislature through the strict controls over publication and access to media has led to a lack of ability for economic prosperity for those companies that do not align themselves with either the PAP or the UMNO.
This was apparent when the UMNO aligned The New Straits Times supported the government’s prosecution of former Deputy Prime Minister (Ibrahim) on sodomy and corruption charges.
The Reformasi rejected this and subsequently had a massive fall in circulation 29 .The courts in both Singapore and Malaysia are concerned with the protection of the reputation of government figure, regardless of the effect on news reporting and commentary 30 .
Media practitioners in Singapore are aware of the threat of defamation cases and aware of what issues constitute sensitive topics and should be avoided—ASEAN, China, race, religion, PAP internal politics, PAP personalities, corruption, and government linked companies 31 .
Media practitioners in both Malaysia and Singapore were aware of defamation law.
However, most Singaporeans were not fully aware of their legal rights, nor did they have the resources available to them to successfully defend themselves against powerful political players 32 .
Malaysians and Singaporeans considered media and publishing as part of a whole institutional context; where freedom of the press is not a right but that publishing falls within a legislation and regulation, and managing these was simply part of the world of reporting and journalism 33 .
The media organisations are aware that there are many restrictions.
Thus, draft articles and stories that do not breach these restrictions, the deterrent nature of the legislation, and regulation imposed by Strong hold States being effective in quashing individualism or 29 Ibid, 132.
30 Ibid, 135.
31 Ibid, 142.
32 Ibid, 142.
33 Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore, 135.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 8 Volume 2(S) No.
1 (2015) disagreement.
Consequently, companies align themselves with the political parties to ensure that they are successful and remain in circulation.
IV.
MEDIA ORGANISATIONS OVER POLITICS The United Kingdom (UK) and The United States of America (USA) In evaluating media organisation control in both of the UK and the USA, a focal corporation in place of a Strong hold State should be assessed.
NewsCorp (owned by Rupert Murdoch) allows for an effective assessment of the role that media organisations (conglomerates) negotiate political powers and what media is released to the public to benefit their economic goals 34 .
NewsCorp media reaches approximately 75% of the world’s population over five continents with around $28 billion in annual revenue.
Their power over press freedoms and access to the media makes them may have no competitor.
In 2003, the 175 NewsCorp controlled newspapers supported Murdoch’s personal stand for the invasion to Iraq; which was also supported by the Georg W Bush and Tony Blair (USA and UK leaders at the time) 35 .
Murdoch has used the NewsCorp publications to back those political policies that support the NewsCorp group.
The power of NewsCorp and the financial dealings of the company mean that regulators are sometimes hesitant to enforce laws for fear of ramifications by NewsCorp publications 36 .
The power of NewsCorp throughout the UK, the USA, and Australia has led to a large interference with politics and election cycles.
This political leverage leads to the presentation of regulatory favours for NewsCorp entities and subsidiaries assisting with the growth of NewsCorp entities leading to more regulatory freedoms which increase the company and 34 Arsenault and Castells, (2008) ‘Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, 23(488), International Sociology, 489.
35 Ibid, 493.
36 Arsenault and Castells, (2008) ‘Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, 23(488), International Sociology, 496.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 9 Volume 2(S) No.
1 (2015) escalate its political influence 37 .
The political alliances made by NewsCorp are fickle.
It reflects the business and economic interests of NewsCorp rather than any deep seeded political affiliation; contradictory to the political power and business affiliation in both Singapore and Malaysia 38 .
NewsCorp has historically provided direct financial contributions to politicians and political parties (US$ 4.7 million between 1998 and 2007) 39 .
The media regulatory review generally coincides with the contributions from NewsCorp.
As in 2006, NewsCorp provided 10% of campaign contributions to Senator Ted Stevens, during which period Stevens was sponsoring a telecommunications bill that assisted with the NewsCorp business objectives.
Similarly, HarperCollins, a NewsCorp owned company has provided book deals to politicians who then supported media regulatory changes 40 .
NewsCorp has also been credited with shifting the outcome of the 1997 British Election of Tony Blair as prime minister—New Labour, when NewsCorp was historically Conservative and in support of Margaret Thatcher.
Shortly before the election, all NewsCorp print media outlets endorsed Tony Blair for the Prime Minister role; which he subsequently won.
New Labour has a favourable position on media regulation in contrast with the more accountable stance of the Conservative party at the time 41 .
Increased revenue and market share have led to NewsCorp being able to gain regulatory favours from politicians via financial contributions to their campaigns 42 .
This increases the power had by media organisations (conglomerates) over politics, whilst still controlling access to media and press freedoms.
37 Ibid, 497.
38 Ibid, 497 39 Ibid, 497.
40 Ibid, 499.
41 Arsenault and Castells, (2008) ‘Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, 23(488) International Sociology, 500.
42 Ibid, 507.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 10 Volume 2(S) No.
1 (2015) V. CONCLUSION Press Freedoms By analysing the presentation of legislation and political power in Malaysia and Singapore contrasted with economic powers in the UK and the USA; it is clear to see that regardless of who hold the power political parties or media organisation there appears to be an intrinsic link between the two.
This power and influence has led to restrictions being placed on what journalists and reporters publish and what is accessible by the masses.
Defamation Legislation Defamation legislation creates chilling effect in Malaysia and Singapore which means that the level of litigation is no longer high as journalists are self-censoring to minimise their risk of personally being taken to court.
It is important to note that although defamation legislation is not as restrictive; however, in the UK and the USA it does exist.
Wider understanding between general population, report of individual legal rights, and more accessible independent judiciaries allow for the appropriate application of defamation legislation taking into consideration notions of responsible journalism.
It is fair to say that those restrictions and regulations present in Malaysia and Singapore as strong hold states are less plaintiff friendly and more intensive.
Nevertheless, it is clear that with the removal of this global media companies and their influences on political parties and policy, it regulates and restricts what is published in the media for access by the public.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 11 Volume 2(S) No.
1 (2015) REFERENCES Journals: Arsenault and Castells, (2008) ‘Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis’ International Sociology.
Article 19 and Suaram, (2005) Freedom of Expression and the Media in Malaysia.
Randhawa et al, (2005) Freedom of Expression and the Media in Malaysia: Part of A Series of Baseline Studies on Seven South East Asian Countries.
Thio, (2010) ‘Soft Constitutional Law in Nonliberal Asian Constitutional Democracies’ 8(4) International Journal of Constitutional Law.
Whiting and Majoribanks, (2013) ‘Media Professionals’ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore’ Democracy, Media and Law in Malaysia and Singapore Laws: Constitution of Malaysia 1957 art X. Defamation Act 1957 (Malaysia) Defamation Act 1985 (Singapore) Defamation Act 2013 (UK) Newspaper and Printing Presses Act (rev, 2002 edition) (Singapore) Printing Presses and Publications Act 1984 (Malaysia) United States Constitution amend I.
Cases: Reynolds v Times Newspapers, Ltd. [2001] 2.
74 | DOI: http://dx.doi.org/10.21776/ub.blj.2018.005.01.06 The Struggle of Becoming the 11th Member State of ASEAN: Timor Leste’s Case Rr.
Mutiara Windraskinasih, Arie Afriansyah 1 1 Faculty of Law, Universitas Indonesia E-mail : arie.afriansyah@ui.ac.id Submitted : 2018-02-01 | Accepted : 2018-04-17 Abstract: In March 4, 2011, Timor Leste applied for membership in ASEAN through formal application conveying said intent.
This is an intriguing case, as Timor Leste, is a Southeast Asian country that applied for ASEAN Membership after the shift of ASEAN to acknowledge ASEAN Charter as its constituent instrument.
Therefore, this research paper aims to provide a descriptive overview upon the requisites of becoming ASEAN Member State under the prevailing regulations.
The substantive requirements of Timor Leste to become the eleventh ASEAN Member State are also surveyed in the hopes that it will provide a comprehensive understanding as why Timor Leste has not been accepted into ASEAN.
Through this, it is to be noted how the membership system in ASEAN will develop its own existence as a regional organization.
This research begins with a brief introduction about ASEAN’s rules on membership admission followed by the practice of ASEAN with regard to membership admission and then a discussion about the effort of Timor Leste to become one of ASEAN member states.
Keywords: membership, ASEAN charter, timor leste, law of international and regional organization I.
INTRODUCTION The 1967 Bangkok Conference produced the Declaration of Bangkok, which led to the establishment of ASEAN in August 8, 1967.
The Declaration itself does not specify the rules of admitting new member states, as it only says that, “the Association is open for participation to all States in the South-East Asian Region subscribing to the aforementioned aims, principles and purposes.”1 Therefore, it does not limit to any 1 ASEAN, “The Asean Declaration (Bangkok Declaration)”, accessed October 4, 2017, < South East Asia countries outside the founding father states to join ASEAN who wish to bind to the aims, principles and purposes of ASEAN.
In 2004, Malaysia proposed the idea of introducing ASEAN Charter to which was formally adopted at the Eleventh ASEAN Summit in 2005.
ASEAN Charter was formally adopted by leaders in November 20, 2007 and came into effect in December 15, http://asean.org/the-asean-declaration-bangkokdeclaration-bangkok-8-august-1967> mailto:arie.afriansyah@ui.ac.id http://asean.org/the-asean-declaration-bangkok-declaration-bangkok-8-august-1967 http://asean.org/the-asean-declaration-bangkok-declaration-bangkok-8-august-1967 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 75 2008.2 This adoption effectively provides the legal personality of ASEAN as well as perfecting its organs and mechanisms for operation.
It is conveyed through Article 3 of ASEAN Charter explicitly that states, “ASEAN, as an intergovernmental organization, is hereby conferred legal personality”.3 Therefore, ASEAN effectively stipulates its legal power and binding towards its member states to ease the operation of ASEAN in conducting its functions.
In comparison to the 1967 Declaration of Bangkok, ASEAN Charter is rules-based that specifically provides provisions in matters that were not found in the Declaration.
One of which is the matter of membership admission.
It is stated in Article 6 (2) of ASEAN Charter that the admission shall be based on the following criteria, such as: Location in the recognized geographical region of Southeast Asia; Recognition by all ASEAN Member States; Agreement to be bound and to abide by the Charter; and Ability and willingness to carry out the obligations of Membership.
Although ASEAN is a prestige regional intergovernmental organization in Southeast Asia, it still excludes Timor Leste.
The people of Timor Leste declared its restoration of independence in May 20, 2002, making its nation to be world’s newest nation.4 They initially rejected special autonomy from Indonesia, which led to its independence.5 With all the struggling that Timor Leste had 2 L. Leviter, ‘The ASEAN Charter: ASEAN Failure or Member Failure?’ (2010) 43 New York University Journal of International Law and Politics 159.
3 ASEAN, “Asean Charter”, Article 3, accessed September 4, 2017, <http://www.asean.org/archive/publications/ASE AN-Charter.pdf> 4 Macaluay, "Timor Leste: Newest and Poorest of Asian Nations" to endure in gaining its independence, it is still not admitted as a permanent member state of ASEAN despite its formal application for ASEAN membership in 2011.6 Still to this day, the admission of Timor Leste as a member state of ASEAN after six years from its formal application remains to have no solution despite its strong urge to become one due to many implications.
This is a stark contrast to the no time-consuming admission of Cambodia, Laos, Myanmar, and Vietnam in the late 1990s.7 The case of Timor Leste’s membership admission to ASEAN prevails the issues of ASEAN’s legal framework itself to which may be in conflict with its own advocacy of determined to transform from an informal organization to a rules-based organization.
This causes on-going the accession of Timor Leste that has no end until today.
This article aims to analyze the admission process of Timor Leste in becoming a member state of ASEAN through the eyes of international organizational law in regards to the ASEAN Charter and other ASEAN instruments.
In emphasizing the issues of ASEAN’s legal framework above, the article follows to summarize the membership system of international organization.
Subsequently, it discusses the legal framework of ASEAN in regards to membership admission in a lengthy detail that distinct the ASEAN Declaration and 5 İlker Gökhan Şen, Sovereignty Referendums in International and Constitutional Law, (Switzerland: Springer International Publishing, 2015), 104.
6 Fina Astriana, Muhammad Arif, and Askabea Fadhilla, ‘Rethinking the Process for TimorLeste’s Application for ASEAN Membership,’ (March 2016) 3 4 ASEAN Briefs 3, no.
4 (March 2016).
7 Ibid.
http://www.asean.org/archive/publications/ASEAN-Charter.pdf http://www.asean.org/archive/publications/ASEAN-Charter.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 76 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… ASEAN Charter Era.
Additionally, the article also discusses the membership admission case of CLMV.
Afterwards, it provides examination of the Timor Leste’s membership admission.
To sum the main points of the article, conclusion and recommendations are provided at the end.
II.
LEGAL MATERIALS AND METHODS This research begins with a brief introduction about ASEAN’s rules on membership admission followed by the practice of ASEAN with regard to membership admission and then a discussion about the effort of Timor Leste to become on eof ASEAN member state.
Legal materials used in this research include:  ASEAN Declaration.
(August 8, 1967)  Treaty of Amity and Cooperation in Southeast Asia.
(1976)  Declaration on the Admission of the Lao People’s Democratic Republic into the Association of Southeast Asian Nations.
(July 23, 1997).
 Declaration on the Admission of the Union of Myanmar into the Association of Southeast Asian Nations.
(July 23, 1997)  Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia.
(July 25, 1998)  Declaration on the Admission of the Kingdom of Cambodia into the Association of Southeast Asian Nations.
(April 30, 1999)  ASEAN Charter.
(November 20, 2007) 8 Sri Setianingsih Suwardi, Pengantar Hukum Organisasi Internasional, (Jakarta: Penerbit Universitas Indonesia, 2004), 46  Third Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia.
(July 23, 2010).
III.
RESULTS AND DISCUSSIONS Membership of International Organization In practice, membership principles are grounded upon the purposes and aims of the international organization itself.8 Generally, the principles of membership that are adopted by international organization mostly are universal principles and selective principle.
International organization whom applies universality principle truly dedicate its work to global-concerning matters, whether regarding to its wide and complex range of programs or to its specialized scopes within the international organization itself.9 In comparison, the selection principle establishes specific requirements concerning certain factors for its members to follow in order to gain membership.
Furthermore, another principle of membership in international organization is the principle of geographical proximity.
International organizations whom adhere to said principle tend to form regional or subregional organizations in which the members will be limited to states located within its own territories.
An example of international organization whom applied this principle is ASEAN, a regional organization in Southeast Asia with 10 members.
States outside Southeast Asia region are not allowed to join, such as Sri Lanka.
This is explicitly declared upon Article 6 (2) point a of ASEAN Charter to which admission of new members shall be based on the criteria of “location in the 9 Sumaryo Suryokusumo, Pengantar Hukum Organisasi Internasional, (Jakarta: PT Tatanusa, 2007), 50 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 77 recognized geographical region of Southeast Asia.”10 ASEAN’s Legal Framework of Membership Admission 1.
Legal Personality The legal personality of international organization can be endowed through many modes, whether it is directly from the constituent instrument, multilateral agreements, or whether any implication that may arise from such instruments.
It is certain that the international legal personality is through the manifestation of the will of the founders.11 In the case of ASEAN, the international legal personality arises through the constituent instrument, as it says in Article 3 in ASEAN Charter that ASEAN “as an intergovernmental organization, is hereby conferred legal personality.”12 Thus, the legal personality of ASEAN is indisputable.
However, the legal personality of ASEAN prior to the establishment of ASEAN Charter shall be examined further although this claim does not mean ASEAN lacked international legal personality in the first place.
The Reparation of Injuries case set out a theory that may be adopted for the question of international legal personality, which is known as the will theory.
This 10 ASEAN, “Asean Charter”, Article 6, accessed November 8, 2017, <http://www.asean.org/archive/publications/ASE AN-Charter.pdf> 11 Philippe Sands Q.C.
and Pierre Klein, Bowett’s Law of International Institutions (London: Thomson Reuters, 2009), 479.
12 ASEAN, “Asean Charter”, Article 3, accessed November 14, 2017, <http://www.asean.org/archive/publications/ASE AN-Charter.pdf> 13 Henry G. Schemers and Niels M. Blokker, International Institutional Law: Unity Within Diversity, 4th ed., (Leiden: Martinus Nijhoff, 2003), 989-993. theory can be understood that the founders of international organization have the intention for the formation is underlined with legal personality; therefore, it is valid to be considered into having international legal personality.
In this context, this reasoning without doubt can be extended to ASEAN with respect to the Member States, which is that ASEAN has such legal personality as the founding members have endowed it.13 2.
Transformation from Informal to Rules-Based Organization The transformation of ASEAN from an informal organization14 to rules-based organization has been an on-going discussion with the adoption of the ASEAN Charter.
Southeast Asian governments intended to do such transformation with ASEAN Charter that established a normative framework for the region through the practice of regional cooperation and integration.15 Prior to the entry into force of the Charter, ASEAN was widely known as intergovernmental cooperation between the founding Member States that later expanded to other Southeast Asian States, namely: Brunei Darussalam, Vietnam, Cambodia, Myanmar and Laos.
It is a conscious decision for ASEAN to be adopting informal modes of operation in which is evident from the ASEAN 14 Prior to ASEAN Charter 2007, ASEAN was formed by a declaration in 1969 and did not expressly the organization was a rule-based one.
See for further elaboration, Simon Chesterman, ‘Does ASEAN Exist?
The Association of Southeast Asian Nations as an International Legal Person’, (2008) 12 Singapore Yearbook of International Law 12 15 Prof. Jürgen Rüland, “ASEAN’s Citizens Rights: Rule of Law, Judiciary and Law Enforcement,” Directorate-General for External Policies of the Union Policy Department, (Belgium: European Union, 2013): 5, <http://www.europarl.europa.eu/RegData/etudes/ note/join/2013/433716/EXPOAFET_NT(2013)433716_EN.pdf> http://www.asean.org/archive/publications/ASEAN-Charter.pdf http://www.asean.org/archive/publications/ASEAN-Charter.pdf http://www.asean.org/archive/publications/ASEAN-Charter.pdf http://www.asean.org/archive/publications/ASEAN-Charter.pdf http://www.europarl.europa.eu/RegData/etudes/note/join/2013/433716/EXPO-AFET_NT(2013)433716_EN.pdf http://www.europarl.europa.eu/RegData/etudes/note/join/2013/433716/EXPO-AFET_NT(2013)433716_EN.pdf http://www.europarl.europa.eu/RegData/etudes/note/join/2013/433716/EXPO-AFET_NT(2013)433716_EN.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 78 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… Declaration that described ASEAN as an “Association for Regional Cooperation” comprising of “the collective will of the nations of Southeast Asia to bind themselves together in friendship and cooperation.”16 The shift to a more rules-based organization acquires Member States to oblige themselves to “take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter, and to comply with all obligations of membership,” which indicates that compliance becomes an obligation for all Member States.
Furthermore, the Charter to which endows the legality of ASEAN an international organization is essentially impacted by the constitutive and authoritative decision of ASEAN’s governing institutions.
3.
Membership System and Requirements ASEAN as an intergovernmental organization adheres to the principle of selective for its membership system with the focus of geographical proximity as its selection requirement.
There are changes of requirements for one in admitting to be a Member State of ASEAN due to the shift of constituent instrument from ASEAN Declaration to ASEAN Charter.
Such differences will be elaborated respective to the two ASEAN eras below.
16 ASEAN, “ASEAN Declaration,” accessed November 14, 2017, <http://asean.org/the-aseandeclaration-bangkok-declaration-bangkok-8august-1967/> 17 Rodolfo C. Severino, Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General, (Pasir Panjang: ISEAS Publishing, 2006), 50 a. ASEAN Declaration (Pre-Charter) Era Prior to the ASEAN Charter, the only conditions for gaining membership and participating in ASEAN were location in “the Southeast Asian Region” and with the capacity to adhere to the “aforementioned aims, principles and purposes” according to the ASEAN Declaration.17 Another requirement for joining ASEAN is that Member States must ratify the Treaty of Amity and Cooperation of Southeast Asia (TAC).18 The treaty stipulates fundamental principles: mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations; the right of every State to lead its national existence free from interference, subversion or coercion; non-interference in the internal affairs of one another; settlement of differences of disputes by peaceful means; renunciation of the threat or use of force; effective cooperation among themselves.19 It is to be understood that acceding TAC conveys subscription to the aims, purpose and principles of ASEAN itself, which becomes as an inevitable requirement of gaining membership.
However, there are no substantive internal requirements set out under the ASEAN Declaration nor the TAC.20 In addition to such aforementioned conditions, an observer status may be assigned as a step to be taken for potential candidates of Member States to ASEAN.
It 18 Alison Duxbury, The Participation of States in International Organisastions: the Role of Human Rights and Democracy, (Cambridge: Cambridge University Press, 2011), 170 19 ASEAN, “1976 Treaty of Amity and Cooperation in Southeast Asia,” Article 2, accessed December 16, 2017, <http://asean.org/treaty-amity-cooperationsoutheast-asia-indonesia-24-february-1976/> 20 Ibid.
http://asean.org/the-asean-declaration-bangkok-declaration-bangkok-8-august-1967/ http://asean.org/the-asean-declaration-bangkok-declaration-bangkok-8-august-1967/ http://asean.org/the-asean-declaration-bangkok-declaration-bangkok-8-august-1967/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 79 shall be noted that this is not regulated under the ASEAN Declaration.
However, Rodolfo C. Severino stated that the observer status “should be granted only to potential members of ASEAN who satisfy the criteria set for ASEAN membership.”21 This status was granted to CLMV countries during their “candidacy-in-waiting” period after bidding to join ASEAN.
However, it must be noted that said status does not endow automatic admission into ASEAN and vice versa.22 CLMV (Cambodia-Laos-MyanmarVietnam) Membership Admission to ASEAN CMLV as Southeast Asian countries joined ASEAN as Member States in the period of 1990s to which the ASEAN instrument that applies to such admission was the ASEAN Declaration.
The only requisite for membership under the Declaration was one’s region to be located within Southeast Asia and its adherence to the principles and purposes set out under the Declaration.23 The enlargement of Member States of ASEAN is, without a doubt, through consensus by the current Member States.24 Vietnam joined ASEAN in July 1995, Laos and Myanmar in July 1997, and Cambodia in April 1999.25 21 Rodolfo C. Severino, Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General, 77 22 Moe Thuzar, “What does it Take to Join ASEAN?” ISEAS-YUSOF ISHAK Institute Analyse Current Events No.
36, (Singapore: ISEAS-YUSOF ISHAK Institute, 2017): 6, <https://www.iseas.edu.sg/images/pdf/ISEAS_Pe rspective_2017_36.pdf> 23 ASEAN Declaration 24 Joshua Kurlantzick, “ASEAN’s Future and Asian Integration,” Institutions and Global Governance (New York: Council on Foreign Relations, 2012): 15, <https://www.cfr.org/sites/default/files/pdf/2012/ 10/IIGG_WorkingPaper10_Kurlantzick.pdf> It is to be noted that many “informal” requisites or political considerations were taken into account.
One of the things is to develop steady and strong state relations with the founding Member States of ASEAN.
Vietnam could have been considered as an enmity due to the fact that it adheres to a different political system: communism.26 Despite such disparity, it was believed that Vietnam’s entrance to ASEAN would create a stronger regional cooperation, as it was set out as one of the purposes and aims of ASEAN’s establishment.27 The most remarkable step of Vietnam progressing towards such formal association was acceding the ASEAN Treaty of Amity and Cooperation in July 1992, which had been drafted in 1976 Bali Summit.28 Such intention was officially notified to Philippines.29 It was considered as the gesture of Vietnam in accepting ASEAN concept of regional cooperation in Southeast Asia, as the Treaty fully governs the principles that ASEAN binds to.30 Therefore, this may be viewed as fulfilling the requisite of Vietnam adhering to the “aforementioned aims, principles and purposes” according to 25 Pou Sovachana, “The Challenges of the CLMV Countries and the Role of Development Partner,” (ASEAN Center), 25 26 Dr. Frank Frost, “Vietnam’s Membership to ASEAN: Issues and Implications,” Current Issues Brief No.
3, (Australia: Parliamentary Research Service, 1995): 3, <http://www.aph.gov.au/binaries/library/pubs/cib/ 1995-96/96cib03.pdf> 27 ASEAN Declaration 28 Dr. Frank Frost, “Vietnam’s Membership to ASEAN: Issues and Implications,” 3 29 Carlyle A. Thayer, “Vietnam and ASEAN,” Vietnamese Foreign Policy, (Washington, D.C.: 2000): 3, <http://www.vpainc.org/conference/pdf/thayer2.pdf> 30 Ibid https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_36.pdf https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_36.pdf https://www.cfr.org/sites/default/files/pdf/2012/10/IIGG_WorkingPaper10_Kurlantzick.pdf https://www.cfr.org/sites/default/files/pdf/2012/10/IIGG_WorkingPaper10_Kurlantzick.pdf http://www.aph.gov.au/binaries/library/pubs/cib/1995-96/96cib03.pdf http://www.aph.gov.au/binaries/library/pubs/cib/1995-96/96cib03.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 80 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… the ASEAN Declaration.31 It was also acknowledged that such accession of the Treaty was viewed as Vietnam’s step into becoming a Member State of ASEAN, which was clarified by the Deputy Foreign Minister Vu Khoan that said, “Vietnam wishes to become an ASEAN Member.
Following the accession to the Bali Treaty, Vietnam hopes to take part in the annual ASEAN AMM […]”32 The following year after Vietnam has signed the Treaty, which comprises of ASEAN fundamental principles, it gained its observer status in ASEAN in 1993.33 As it has been discussed previously, the status of Special Observer is governed under Article 44 to which is considered as status of external parties.34 It is to be noted that such status given to Vietnam is perceived as another phase in order to gain full membership of ASEAN, regardless it is not mentioned in any of the ASEAN instruments.
However, observer status is commonly known as a starting point in gaining full membership, with partial rights.
Ordinarily observers cannot vote, however, allows to be participating in discussion.35 In the case of ASEAN, observers States “may be invited to meetings or cooperative activities.”36 However, such regulation did not exist prior the establishment of ASEAN Charter in which was unclear.
Eventually, Vietnam showed its determination of joining ASEAN 31 Rodolfo C. Severino, Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General, 50 32 Stephanie Balme and Mark Sidel, Vietnam’s New Order: International Perspectives on the State and Reform in Vietnam, (New York: Palgrave Macmillan, 2007), 54 33 Dr. Frank Frost, “Vietnam’s Membership to ASEAN: Issues and Implications,” 3 34 The actual formulation of Article 44 is: “1.
In conducting ASEAN’s external relations, the ASEAN Foreign Ministers Meeting may confer on an external party the formal status of Dialogue through its formal application in 1994.37 It is not stated specifically anywhere in what kind of formal application is being referred to here.
Considering other international organizations, the formal application here refers to the statement conveying one’s wish to join said international organizations.
The process of accepting the application and the membership gain itself was very short, considered that by July 28, 1995, Vietnam officially became a Member State of ASEAN.
This denotes through Declaration on the Admission of the Socialist Republic of Vietnam into the Association of Southeast Asian Nations with certain regards and considerations upon several aspects.
The first aspect is obviously in which ASEAN is open for all States within the region of Southeast Asia highlighting the aims, principles and purposes of ASEAN itself.38 It is inevitable that Vietnam is within Southeast Asia, bordering with Laos, Thailand, and Cambodia.
The second aspect is Vietnam’s accession to the Treaty of Amity and Cooperation in Southeast Asia, which has been explained beforehand.
Not only this Treaty, Vietnam also agreed to: Subscribe or accede, as the case may be, to all ASEAN’s Declarations, Treaties and Agreements, including all ASEAN’s Agreements with Dialogue Partners, Sectoral Dialogue Partners and Consultative Partners, the Partner, Sectoral Dialogue Partner, Development Partner, Special Observer, Guest, or other status that may be established henceforth; 2.
External parties may be invited to ASEAN meetings or cooperative activities without being conferred any formal status, in accordance with the rules of procedure,” (Article 44, ASEAN Charter) 35 Jan Klabbers, An Introduction to International Institutional Law, (New York: Cambridge University Press, 2002), 113 36 Article 44, ASEAN Charter 37 Dr. Frank Frost, “Vietnam’s Membership to ASEAN: Issues and Implications,” 5.
38 ASEAN Declaration Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 81 Framework Agreement on Enhancing ASEAN Economic Cooperation and the Agreement on the Common Effective Preferential Tariff Scheme for the ASEAN Free Trade Area.39 Henceforth, it displays the fulfillment of Vietnam in integrating ASEAN’s aims, purposes and principles by agreeing to accept said regulations to be enforced in the scope of its domestic legislations.
This ensures the condition of membership that Vietnam must oblige to, which consequently under the ASEAN Declaration, Vietnam is accepted as the seventh Member state of ASEAN.40 Subsequently, Laos and Myanmar also gained membership in 1997.41 Laos, similar to Vietnam, gained the Special Observer status during the 25th AMM In Manila in July 1992, as its application was approved.
After attending the AMM as an Observer for three consecutive years, Laos eventually applies for membership through a letter of application dated March 15, 1996, which was also announced by its Foreign Minister at the 28th AMM in Bandar Seri Begawan.42 Cambodia followed this step, also applied for membership in March 23, 1996.43 Reviewing the applications of both candidates, the ASEAN Security Committee (ASC) formed a Working Group on the Membership of Cambodia and Laos in assessing all issues in regards to the preparations.
This was in response to the invitation from the Lao Foreign Minister to which the ASC established a fact-finding team to conduct an 39 ASEAN, “Declaration on the Admission of the Socialist Republic of Vietnam into the Association of Southeast Asian Nations,” accessed December 12, 2017, < http://arcagreement.asean.org/file/doc/2015/01/declaration -on-the-admission-of-the-socialist-republic-ofvietnam-into-the-association-of-southeast-asiannations.pdf> urgent study for membership requirements to join ASEAN.
All of these steps also performed in assessing Cambodia’s membership application.
During this time, Myanmar officially gained an Observer status underlying its application dated July 22, 1995.44 Thus, the ASC Working Group extended its mandate for Myanmar’s membership admission as well.
Eventually, Laos and Myanmar gained their membership in 1997 and Cambodia in 1999.
Laos’ admission to ASEAN was marked with the Declaration on the Admission of the Lao People’s Democratic Republic into the Association of Southeast Asian Nations.
The content of the Declaration is similar to the ones that have been set out in Vietnam’s Declaration, however, there was one additional consideration that shall be pointed out as a requirement for Laos to become a Member State of ASEAN.
The consideration is to be said that: Noting further that the Lao People’s Democratic Republic will, from the date of its membership in ASEAN, extend on a reciprocal basis Most Favoured Nation Treatment to ASEAN Member States; National Treatment on products of the territory of any ASEAN Member State imported into the territory of the Lao People’s Democratic Republic vis-à-vis like products of national origin in respect of all laws, regulations and requirements (including sales tax, 40 Ibid 41 Thuzar, “What does it Take to Join ASEAN?” 2 42 Amitav Acharya, Constructing a Security Community in Southeast Asia: ASEAN and the Problem of Regional Order, (London: Routledge, 2001) 43 Ibid.
44 Ibid http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-socialist-republic-of-vietnam-into-the-association-of-southeast-asian-nations.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-socialist-republic-of-vietnam-into-the-association-of-southeast-asian-nations.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-socialist-republic-of-vietnam-into-the-association-of-southeast-asian-nations.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-socialist-republic-of-vietnam-into-the-association-of-southeast-asian-nations.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-socialist-republic-of-vietnam-into-the-association-of-southeast-asian-nations.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 82 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… exchange rate determination and foreign exchange control) affecting their internal sale, offering for sale, purchase, transportation, distribution or use; and ensure transparency in its trade regime on goods and services by keeping ASEAN Member States informed of all its laws, regulations and requirements and subsequent changes thereto which affect its trade in goods and services with ASEAN Member States […]45 This shows that the acceptance of one to be transparent in conducting its trade regime for the purpose of economic cooperation is also another requisite that shall be fulfilled by a SEA country to become a Member State of ASEAN.
It is unclear that why such consideration is not listed in the Vietnam’s Declaration.
It may likely due to the disparity economic condition of Vietnam and Laos.
However, it is to be noted, based upon Laos’ Declaration, that economic condition, especially in trade sector, is to be acquired as a Member State in order to “strengthen[ing] the economic and social stability of the [Southeast Asian] region,” as set out in the ASEAN Declaration.46 Such consideration is also evident in Myanmar’s 45 ASEAN, “Declaration on the Admission of the Lao People’s Democratic Republic into the Association of Southeast Asian Nations,” accessed December 12, 2017, < http://arcagreement.asean.org/file/doc/2015/01/declaration -on-the-admission-of-the-lao-people-sdemocratic-republic-into-the-asean.pdf> 46 ASEAN Declaration 47 ASEAN, “Declaration on the Admission of the Union of Myanmar into the Association of Southeast Asian Nations” and “Declaration on the Admission of the Kingdom of Cambodia into the Association of Southeast Asian Nations,” accessed December 12, 2017, < http://arcagreement.asean.org/file/doc/2015/01/declaration -on-the-admission-of-the-union-of-myanmar-intoasean.pdf > and < https://cil.nus.edu.sg/wpDeclaration as well as Cambodia’s Declaration.47 The reason to which Cambodia was admitted later although it was initially agreed to be admitted in 1997, due to political consideration.
The Cambodian Premier Hun Sen at the time ousted his co-premier Prince Norodom Ranariddh in July 1995 coup; thus, the invitation to be admitted into ASEAN was withdrawn, as political stability became a condition that shall be fulfilled for bidding membership.48 This is due to the consensus that was not achieved with objection from Singapore, which it acquired Cambodia to authorize a constitutional amendment for a new upper house or senate.49 However, after contemplating, all Member States of ASEAN agreed to admit Cambodia as the tenth Member State.50 Evidently, one’s political condition is also another factor to be taken into account for gaining full membership of ASEAN, as it is clearly depicted in the case of Cambodia’s admission.
Although it is not governed anywhere under the ASEAN instruments due to the principle of noninterference that ASEAN adheres to; thus, it is considered to be rather controversial if there is a regulation indicating such.
After examining the case of accession of CLMV to ASEAN, it is to be concluded content/uploads/formidable/18/1999-Declarationon-the-Admission-of-the-Kingdom-of-Cambodiainto-ASEAN.pdf > 48 CNN, “ASEAN Nations Disagree on Admitting Cambodia,” CNN (CNN, 1998), accessed December 12, 2017, < http://edition.cnn.com/WORLD/asiapcf/9812/15/ asean.03/index.html> 49 Ibid 50 Agence France-Presse, “Asian Group Says It Will Admit Cambodia, Despite Instability,” New York Times (New York: New York Times, 1998), accessed December 12, 2017 < http://www.nytimes.com/1998/12/17/world/asiangroup-says-it-will-admit-cambodia-despiteinstability.html> http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-lao-people-s-democratic-republic-into-the-asean.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-lao-people-s-democratic-republic-into-the-asean.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-lao-people-s-democratic-republic-into-the-asean.pdf http://arc-agreement.asean.org/file/doc/2015/01/declaration-on-the-admission-of-the-lao-people-s-democratic-republic-into-the-asean.pdf http://edition.cnn.com/WORLD/asiapcf/9812/15/asean.03/index.html http://edition.cnn.com/WORLD/asiapcf/9812/15/asean.03/index.html http://www.nytimes.com/1998/12/17/world/asian-group-says-it-will-admit-cambodia-despite-instability.html http://www.nytimes.com/1998/12/17/world/asian-group-says-it-will-admit-cambodia-despite-instability.html http://www.nytimes.com/1998/12/17/world/asian-group-says-it-will-admit-cambodia-despite-instability.html Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 83 that the requirements of membership admission is not only restricted to what has been regulated under the ASEAN Declaration, which is the regional aspect and the integration of aims, principles and purposes.
Political and economic factors are also highly considered to ensure the longevity of ASEAN itself, though it may vary to one country to another.
b. ASEAN Charter Era The previously mentioned conditions still apply under the ASEAN Charter, however, with certain additional requirements, as stated in Article 6 (2) of ASEAN Charter in the concern of admission of new members.
The Article specifically regulates the criteria for admission, which are namely: (a) Location in the recognized geographical region of Southeast Asia; (b) Recognition by all ASEAN Member States; (c) Agreement to be bound and to abide by the Charter; and (d) Ability and willingness to carry out the obligations of Membership.51 Location, as one of the requirements, irrefutably demonstrates the selective principle that ASEAN follows, which conveys that ASEAN is a regional organization.
Therefore, all current Member States have, without doubt, fulfilled this condition.
Furthermore, Member States must acknowledge one in order to gain membership in ASEAN.
It is not stated under 51 Article 6 (2), ASEAN Charter 52 James Crawford, “The Criteria for Statehood in International Law,” British Yearbook of International Law, (1977): 95, <https://www.ilsa.org/jessup/jessup13/British%20 Yearbook%20of%20International%20Law-1977Crawford-93-182.pdf> the ASEAN Charter to what constitutes as one’s recognition.
However, it is believed that recognition is in the context of acknowledgement of one holding a status as a State or also understood as recognition of statehood.
The application of recognition of statehood under the ASEAN Charter depicts the constitutive theory of said recognition in which “a State is, and becomes an International Person through the recognition only and exclusively.”52 Therefore, in brief, all Member States must recognize one to be in the condition of possessing statehood for this requirement to be realized.
The third condition stipulated as shown above is in regards to the agreement to declare one’s consent in binding and abiding itself to the ASEAN Charter.
Previously, such condition did not exist, as there has not been any countries joined ASEAN in the era of ASEAN Charter.
Therefore, the instruments that one must abide to were ASEAN Declaration and TAC as it governs the aims, purposes, and principles of ASEAN.
This also occurred during Vietnam in gaining membership in ASEAN that in 1992, Vietnam signed the TAC.53 Another condition that is set out in this Article is the capacity of one to carry out obligations of being a Member State of ASEAN.
The obligations of Member States are stipulated in Article 5 that includes all Member States to have equal rights and obligations and enacting appropriate domestic legislation to in implementing provisions within the ASEAN Charter.54 For instance, the Member States have the right to 53 Dr. Frank Frost, “Vietnam’s Membership to ASEAN: Issues and Implications,” 3, <http://www.aph.gov.au/binaries/library/pubs/cib/ 1995-96/96cib03.pdf> 54 The actual formulation of Article 5 of ASEAN Charter stipulates “1.
Member States shall have equal rights and obligations under this Charter.
2. https://www.ilsa.org/jessup/jessup13/British%20Yearbook%20of%20International%20Law-1977-Crawford-93-182.pdf https://www.ilsa.org/jessup/jessup13/British%20Yearbook%20of%20International%20Law-1977-Crawford-93-182.pdf https://www.ilsa.org/jessup/jessup13/British%20Yearbook%20of%20International%20Law-1977-Crawford-93-182.pdf http://www.aph.gov.au/binaries/library/pubs/cib/1995-96/96cib03.pdf http://www.aph.gov.au/binaries/library/pubs/cib/1995-96/96cib03.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 84 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… immunities and privileges for its Permanent Representatives and Officials under ASEAN duties.
However, the immunities and privileges shall be further governed under national law of the ASEAN Member State concerned.55 In carrying out the obligations, there are various conducts that should be performed by the Member States.
One of the obligations is to comply to all “findings, recommendations or decisions resulting from an ASEAN dispute settlement mechanism” in the case of there is a dispute occurred among Member States.56 This obligation illustrates that compliance is a key component under the ASEAN Charter, which is an effort in transforming ASEAN from an informal institution to a rules-based organization.
Aside from aforementioned obligations, ASEAN now also applies a more “institutional assessment process” in undertaking one to be a Member State.
The institutional assessment process essentially involves a senior-official level-working group that evaluates one’s national capacities by examining its political, economic and socio-cultural implications.57 Such assessment is performed upon Timor Leste’s application for admission in which will be discussed in depth in the next chapter.
It is further governed under Article 6 (3) of the ASEAN Charter that the admission of new members to ASEAN will be decided by consensus within the ASEAN Summit upon Member States shall take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of Membership.
3.
In the case of a serious breach of the Charter or non-compliance, the matter shall be referred to Article 20,” (ASEAN Charter) 55 Article 19, ASEAN Charter.
56 Article 27, ASEAN Charter 57 Ibid 58 Article 6, ASEAN Charter the recommendation of the ASEAN Coordinating Council.58 4.
Decision-Making Process of ASEAN ASEAN regulates and contained its decision-making process within the Charter to which is clearly stated in Article 20 that, “As a basic principle, decision-making in ASEAN shall be based on consultation and consensus.”59 Such principle has been derived by the Indonesian-Malay practice known as musyawarah and mufakat.60 The consensus-based decision-making in ASEAN does not necessarily imply unanimity or it involves voting since there is no requirement of explicit agreement to be said towards any proposal.
In other words, a unanimous agreement is not acquired, as long as no Member State openly voices an objection.
Yet, there is a requirement for endorsing proposal with certain number of supports for adoption even though there is no specific number mentioned in neither ASEAN documents nor instruments.61 Such mechanism also facilitates Member States to veto any proposal with the consideration that it might jeopardize the national interests of said Member State.
This is because the decision will only be binding if the Member State agrees to sign and ratify.
Therefore, there is no pressure to comply and implement.62 Essentially, this tool allows Member State agree to disagree with the underlying ground of maintaining solidarity.
59 Article 20, ASEAN Charter 60 Kim, “The changing role of dialogue in the international relations of Southeast Asia.” 61 Atena S. Feraru, ‘ASEAN Decision-Making Process: Before and After the ASEAN Charter,’ (2015) 4 1 Asian Development Policy Review 29 62 T. Kawasaki, ‘Neither Skepticism nor Romanticism: the ASEAN Regional Forum as a Solution for the Asia-Pacific Assurance Game,’ (2006) 19 2 The Pacific Review 223 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 85 This conveys the “flexible consensus” that ASEAN employs that mostly applies to economic decisions or sensitive political issues, which becomes a polemic debate that ASEAN still institutes as an informal organization.
a.
Decision-Making Scheme in ASEAN Declaration (Pre-Charter) Era Prior to ASEAN Charter, there were no documents indicating a machinery as such to conclude a decision.
However, a forum of discussions among the five Southeast Asian foreign ministers was convened.
This was also known as the Annual Meeting of Foreign Ministers (“AMM”), yet the powers and functions of the AMM were not further elaborated.
In making the decisions, cooperation between an ad-hoc and Permanent Committees, Standing Committee, and Annual Meeting of Foreign Ministers were significant.
AMM was similar to today’s ASEAN Summit, which basically comprised of leaders of the Member States discussing certain matters.
Meanwhile, a Standing Committee was chaired by the foreign minister of the host country that consisted of the ambassadors of the Member states in the hosting country.63 The next important organ prior the ASEAN Charter in the process of decision-making was the ad-hoc and Permanent Committees to which comprised of experts and government officials reviewing certain matters.
Therefore, ad-hoc and Permanent Committees would be the front-runner organ that reviewed many aspects of specific issues in which would be addressed to the Standing 63 Atena S. Feraru, “ASEAN Decision-Making Process: Before and After the ASEAN Charter,” 30 64 T. Koh, R. Gonzales Manolo and W. Woon, The Making of the ASEAN Charter, (Singapore: World Scientific Publishing Co. Pte.
Ltd, 2009) Committee.
The Standing Committee clearly would deliver the specific issues into their own respective ministers with the hope bringing contribution in the AMM.
b.
Decision-Making Scheme in ASEAN Charter Era In comparison to the scheme illustrated previously in regards to the scheme of decision-making in the Pre-Charter era, the shift of ASEAN in adopting the ASEAN Charter consequently resulted in the change of character of the decision-making process itself.
It enforces the governmental character of decision-making, which translates that focuses upon the prevailing codified regional values as well as incorporated principles and ideas into ASEAN agreements.64 ASEAN’s today’s decision-making converge upon five organs, namely: ASEAN Summit, ASEAN Coordinating Council (ACC), ASEAN Community Councils, ASEAN Sectoral Ministerial Bodies, and the Committee of Permanent Representatives to ASEAN (CPR).
The functions of these five organs have been discussed previously.
These organs essentially collaborated of intergovernmental consultations to reach the aim of seeking consensus.
It is to be noted that the Summit is still the organ with the authority to “provide policy guidance and take decisions” under the Charter.65 However, the other four organs have the task to coordinate and supervise the implementation of the Summit’s decisions by intergovernmental meetings under their purview with reporting back to the Summit.66 Furthermore, it is to be emphasized that the 65 Article 7 (a), ASEAN Charter 66 Atena S. Feraru, “ASEAN Decision-Making Process: Before and After the ASEAN Charter,” 32 Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 86 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… nature of the relationship between the organs is subordination in the process of decisionmaking, as the organs under the Summit have the obligation to report back to their leaders.
Even, for the supervision of implementation goes to the extent of requesting the SecretaryGeneral of ASEAN to “monitor” implementation of agreements by Member States and to report to the Summit annually.67 Notice, the Charter states, “when consensus cannot be achieved, the ASEAN Summit may decide how a specific decision can be made.”68 This is, by many, considered as a step backward by ASEAN as, there is a lack of clear reference to the mechanism of concluding such a decision, either by majority vote or other formulas.69 Therefore, this negates the aim and purpose of ASEAN Charter in the first place in providing clear procedure of decision-making process.
Within ASEAN, one’s admission membership will be decided through the mechanism of consultation and consensus as its decision-making tool.
It is governed under Article 6 (3) of ASEAN Charter that: “Admission shall be decided by the consensus by the ASEAN Summit, upon the recommendation of the ASEAN Coordinating Council.”70 As has been explained previously, consensus is, in reference to Article 20 of the ASEAN Charter, the decision-making tool of ASEAN.
Therefore, in the process of admitting a new Member State, the scheme of decision-making that has been explained previously.
67 Ibid, 33 68 Article 20, ASEAN Charter 69 ASEAN Studies Centre, The ASEAN Community: Unblocking the Roadblocks, (Institute of Southeast Asian Studies, 2008), 88 70 Article 6, ASEAN Charter.
71 Ben Kiernan, “War, Genocide, and Resistance in East Timor, 1975-99: Comparative Reflections on Cambodia,” (2003): 200 and 204, < Analysis of Timor Leste’s On-going Membership Admission to ASEAN 1.
History of State Formation Independent sovereignty is a struggled achievement for Timor Leste, with after a long period of time through colonization era of Portuguese and Indonesia’s occupation.
Timor Leste declared independence from Portugal on November 28, 1975, however, it was effectively occupied by Indonesia hereafter.
The occupation of Indonesia was motivated by the political aspect to ensure that Timor Leste, after decolonized by the Portuguese, would not follow the concept of communism as its political system, similar to Vietnam at the time.
Such motivation declared by Indonesia’s President Soeharto was supported by the United States of America, as The Revolutionary Front for an Independent East Timor (Fretilin) was perceived as a “Communist wing.”71 However, to hide such motivation in avoiding any controversies, President Suharto declared on July 8, 1975, that there was a lack of economic basis for viable independence of Timor Leste.72 Timor Leste was integrated as a region of the Republic of Indonesia based upon the Balibo Declaration, signed in November 30, 1975.73 This was a resistance to the unilateral declaration of Timor Leste’s independence made by the Freitilin although the international community did not acknowledge such declaration.74 In exercising said ‘integration’, Indonesian https://gsp.yale.edu/sites/default/files/03263_ch_09.pdf> 72 Ibid, 204 73 Hendro Subroto, Saksi Mata Perjuangan Integrasi TimorTimur, (Jakarta: Pustaka Sinar Harapan, 1996), 113 74 Robert Dubler SC, “The International Law Aspects of the Case of the Balibo Five,” Melbourne Journal of International Law 11 (2010): 9, Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 87 armed forces arrived and invaded the territory of Timor Leste on December 7, 1975 that led to a full-scale war raged until 1980.75 Said integration by the government of Indonesia was a de facto legitimation to which was also noted in Indonesian national legislation in Law No.
7 Year 1976, which integrated Timor Leste as the 27th province of Indonesia.76 As a contrast, from the de jure perspective, there was no authority for Indonesia to perform said integration upon Timor Leste, as Timor Leste was included in the United Nations Agenda.
In addition, the UN Resolution 1246 in 1999 by the UN Security Council had decided to form UN Mission in East Timor (UNAMET) to hold a referendum.
The referendum was eventually held in August 30, 1999, with the result of rejecting the special autonomy from Indonesia by 79% of Timorese wished for independence.77 The result ultimately led Timor Leste to its independence.78 Timor Leste, eventually attained its full statehood, and commemorate May 20, 2002 as its Restoration of Independence day to which it is viewed its true independence was ‘taken’ away by the Indonesian government.79 2.
Timor Leste and ASEAN accessed September 4, 2017, <http://law.unimelb.edu.au/__data/assets/pdf_file/ 0008/1686275/Dubler.pdf> 75 Kiernan, “War, Genocide, and Resistance in East Timor, 1975-99: Comparative Reflections on Cambodia,” 203 76 Perserikatan Bangsa-Bangsa, “Perserikatan BangsaBangsa dan Timor Lorosae” (2000),4 77 Ibid 78 İlker Gökhan Şen, Sovereignty Referendums in International and Constitutional Law, a.
Involvement in AMM and ASEAN Summit as a Guest After ASEAN settling with the accession of Cambodia in 1999 as its tenth Member State, the rebirth of a new nation in Southeast Asia was rather unexpected, which presented the issue of another membership decision.
The pursuit of membership by Timor Leste is visible through the speech delivered by President Ramos-Horta in 2000, accepting its Nobel Prize award, announcing that, “We are conscious of our geography, which compels us to coexist with our neighbors in that part of the world.
We will seek membership in ASEAN and APEC.”80 ASEAN did not respond to such claim until 2002, which ASEAN informed Timor Leste of a continuous discussion upon Timor Leste’s obtainment of an observer status and accession to the Treaty of Amity and Cooperation (TAC).
Consequently, the involvement of Timor Leste began at this point of time, as it was invited to attend the Annual Ministerial Meeting (AMM) in July 2002 by Brunei Foreign Minister, Prince Mohamed Bolkiah, on behalf of ASEAN Standing Committee.
From that point, Timor Leste has been invited to AMM, In the Joint Communiqué of the 38th AMM in Vientiane, Timor Leste was addressed as a Guest to the Chairman of the Standing Committee, as conveyed above.
Such status was maintained by Timor Leste (Switzerland: Springer International Publishing, 2015), 104 79 Abraham Joseph and Takako Hamaguchi, The History and Development of Asia’s Newest Nation, (Maryland: Lexington Books, 2014), 1 80 APEC stands for the Asia-Pacific Economic Cooperation, which is a forum established in 1989 to promote sustainable economic growth as well as prosperity in the region of Asia-Pacific.
Today, Timor Leste is not a member of APEC nor has an observer status with the forum (Joseph, The History and Development of Asia’s Newest Nation, 143) http://law.unimelb.edu.au/__data/assets/pdf_file/0008/1686275/Dubler.pdf http://law.unimelb.edu.au/__data/assets/pdf_file/0008/1686275/Dubler.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 88 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… until the Joint Communiqué of the 40th AMM in Manila.
With the shift of ASEAN Declaration to ASEAN Charter, AMM was altered to ASEAN Summit.
Such alteration did not affect any status of Timor Leste gained in ASEAN.
Until today, Timor Leste is still considered as a Guest, as it was addressed in 31st ASEAN Summit by 2017.81 Therefore, this is a contrast to the CLMV countries in which they were accorded observer status during their “candidancy-inwaiting,” meanwhile, Timor Leste has not only the status of a Guest in attending open sessions of AMM and ASEAN Summits.82 b.
Participant Country of ASEAN Regional Forum Timor Leste placed its position to move forward in intensifying its relationship with ASEAN, to gain endorsement of full membership in the Association.
Therefore, Timor Leste embarked upon a campaign for such purpose.
The first step that it was determine to take was the possibility of becoming a participating country in the ASEAN Regional Forum (ARF).83 At the AMM in Phnom Penh in June 2003, the expectation of Timor Leste of being accepted, as a participant in the ARF was not fulfilled, instead Pakistan was accepted as the 24th participant in ARF to which had been requesting as such for years.
Timor Leste represented by Ramos-Horta attended the 81 Rosemarie A. Zamora, “Gov’t bares preparations for 31st ASEAN Summit,” BusinessWorld, (Business World Publishing: October 25, 2017) < http://bworldonline.com/govt-bares-preparations31st-asean-summit/ > 82 Moe Thuzar, “What does it Take to Join ASEAN?” ISEAS-YUSOF ISHAK Institute Analyse Current Events No.
36, (Singapore: ISEAS-YUSOF ISHAK Institute, 2017): 6, <https://www.iseas.edu.sg/images/pdf/ISEAS_Pe rspective_2017_36.pdf> 83 ASEAN Regional Forum, or abbreviated to ARF, is an annual forum established in the year of 1994, AMM as a guest.
However, eventually, ASEAN agreed to invite Timor Leste as the 25th participating country in ARF by July 2005 with the belief that such participation would contribute to the enhancement of political and security dialogue as well as cooperation within the region.84 After joining the forum since 2005, Timor Leste took its turn in hosting the 5th Meeting of the ASEAN Regional Forum Experts and Eminent Persons from January 27 to 28, 2011.
This truly marks the hard-won achievement of Timor Leste in grabbing the attention of the international community, especially ASEAN, to show its determination of showcasing its capability as a sovereign state.
Additionally, it also improves the relationship that Timor Leste has with ASEAN, with the main goal of accession into the Association.
It is to be noted; nonetheless, that membership of ARF does not prelude ASEAN membership, as there are no prevailing ASEAN instruments containing such suggestion.
c. Non-regional Signatory of the Treaty of Amity and Cooperation in Southeast Asia Another milestone step that Timor Leste conducted in improving its relationship with ASEAN is the signing of the TAC.
TAC is fundamental treaty that sets out principles in which ASEAN adheres to; thus, the with the aim to foster constructive dialogue and consultation on political and security issues of common interest and concern; and to make significant contributions to efforts towards confidence-building and preventive diplomacy in the Asia-Pacific region (ASEAN, “ASEAN Regional Forum (ARF), ASEAN, accessed in December 17, 2017, < http://asean.org/aseanpolitical-security-community/asean-regionalforum-arf/> 84 Severino, Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General, 79. https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_36.pdf https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2017_36.pdf http://asean.org/asean-political-security-community/asean-regional-forum-arf/ http://asean.org/asean-political-security-community/asean-regional-forum-arf/ http://asean.org/asean-political-security-community/asean-regional-forum-arf/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 89 signing of TAC of one may exemplify its acceptance as well as integration of ASEAN principles.
The treaty is not exclusive only for ASEAN Member States, as there has been many non-ASEAN Member States signed said treaty.
Thus, the question that was addressed towards ASEAN was whether such accession by Timor Leste would be conveyed as a regional or non-regional signatory.85 There is a distinctive consequence of regional and non-regional signatories upon TAC.
The accession of Timor Leste for TAC as a regional signatory would have an effect of acknowledging Timor Leste as a Southeast Asian country to which acquire a lengthy amendment process of TAC, as well as ratification process by the regional signatory state.
Article 1 of the Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia clearly amended Article 18 (3) to be revised as: States outside Southeast Asia may also accede to this Treaty with the consent of all the States in Southeast Asia, namely, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People's Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Vietnam.86 85 Severino, Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General, 77 86 ASEAN, “Second Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia,” ASEAN, accessed in December 17, 2017, < http://agreement.asean.org/media/download/2014 0117142023.pdf > 87 Severino, Southeast Asia in Search of an ASEAN Community: Insights from the Former ASEAN Secretary-General, 77 With such amendment, it is to be highlighted that if ASEAN decided to view Timor Leste as a regional signatory then there shall be another amendment, adding Timor Leste in said Article above.
The amendment process may not be as lengthy, however, the ratification process by all the Southeast Asian signatories was the issue, as well as delaying other signatures of nonregional states that ASEAN looked forward to.87 Finally, Timor Leste acceded TAC by January 13, 2007 during the ASEAN Summit in Cebu, Philippines.88 The Third Protocol of Amending the Treaty of Amity and Cooperation in Southeast Asia particularly also amended Article 18 (3) to which does not include Timor Leste in its new formulation of Article as the: Sovereign States subject to the consent of all the States in Southeast Asia, namely, Brunei Darussalam, the Kingdom of Cambodia, the Republic of Indonesia, the Lao People’s Democratic Republic, Malaysia, the Union of Myanmar, the Republic of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the Socialist Republic of Viet Nam.89 Therefore, from such formulation of said Article, it is, without doubt, placed Timor Leste as a non-regional signatory of TAC to which not resulting in consequences, as it has been explained previously.
88 Lex Rieffel, Myanmar/Burma: Inside Challenges, Outside Interests, (Washington, D.C.: Brookings Institution Press, 2010), 163 89 ASEAN, “Third Protocol Amending the Treaty of Amity and Cooperation in Southeast Asia,” ASEAN, accessed in December 17, 2017, <http://agreement.asean.org/media/download/201 40117144104.pdf> Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 90 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… 3.
Membership Application of Timor Leste based upon ASEAN Charter a.
Location in the Recognized Geographical Region of Southeast Asia The Democratic Republic of Timor Leste was previously called as East Timor, is a country located in Southeast Asia.
The island of Timor is part of the Maritime Southeast Asia and is the largest as well as the most-eastern part of the Lesser Sunda Islands.90 It is bordered with Australia and Indonesia to which it occupies an area of 14,874 km2.
It is inevitable that Timor Leste lies upon the region of Southeast Asia, which indefinitely fulfills the first requisite of joining ASEAN under the Charter.
Figure 1 below displays the location of Timor Leste in the region of Southeast Asia: Figure 1: Map of Timor Leste (source: www.theasian.asia) b.
Recognition by all ASEAN Member States In the context of ASEAN’s legal framework, it is not explicitly stated to which is considered as recognition.
However, it may come into conclusion that the applied theory in the concept of recognition under the ASEAN Charter is the constitutive theory, as it acquires acknowledgment of the ASEAN Member States towards the statehood of Timor Leste.
This can be seen through the capacity of ASEAN, all Member states agreed to invite Timor Leste as Guest in 90 Embassy of the Democratic Republic of TimorLeste, “Country Profile,” Embassy of the Democratic Republic of Timor-Leste in Washington D.C., accessed December 17, 2017, ASEAN meetings, such as AMM and ASEAN Summit.91 Such gesture may be acknowledged as Timor Leste having the capacity to enter into relations with ASEAN as a platform comprising of sovereign Member States.
Therefore, the criterion of “recognition by all ASEAN Member States” has been met.
c. Agreement to be Bound and to be Abide by the Charter There have not been any comprehensive rules of procedures in <http://www.timorlesteembassy.org/index.php?pa ge=country-profile> http://www.theasian.asia/ Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 91 displaying this step, as Timor Leste is the first case applying for membership during the Charter era.
It is rather vague that said agreement should be done after one is officially admitted to as a Member State of ASEAN, or rather before in expressing such acceptance to accede and ratify the Charter, as the Charter is “subject to ratification by all Member States.”92 However, it is certain that after gaining consensus by all Member States, Timor Leste will have to sign the Instrument of Accession to the Charter, as explained in Article 6. d. Ability and Willingness to Carry out the obligations of Membership The criterion of having the “ability” to carry out membership obligations is the obstacle that Timor Leste struggles with in gaining its full membership in ASEAN.
The obligations of Member States, as set out under Article 5 of ASEAN Charter, include the enactment of appropriate domestic legislation to effectively implement the Charter as well as to comply with all obligations of membership.93 The ASEAN Coordinating Council, with the authority to assess the readiness for one to become a Member State, formed ASEAN Coordinating Council Working Group (ACCWG) on Timor Leste’s ASEAN Membership Application in the March 4, 2011 following the submission of formal application.94 This is similar to ASEAN Security Committee Working Group on the Membership of Cambodia, Laos, Myanmar.
92 ASEAN Charter, Article 47 93 Ibid, Article 5 94 Woon, The ASEAN Charter: A Commentary, 83 95 Ibid 96 The Joint Meeting essentially was preparations of ASEAN Coordinating Council for the upcoming ASEAN Summit; thus, it consists of many suborgans of ASEAN itself.
(Ministry of Foreign Essentially, the ACCWG also has similar function with the underlying consideration of the three pillars of ASEAN, deciding whether Timor Leste has the capacity to carry out obligations of being a Member State by making recommendations.
The ACCWG started very slow as by the time of the 20th ASEAN Summit in April 2012, there had not been any meetings discussing matters to be taken into account for Timor Leste’s admission.95 The discussion of ACCWG was first performed in Joint Meeting of ASEAN Senior Officials Meeting (SOM), Senior Economic Officials Meeting (SEOM) and ASEAN Socio-Cultural Council (SOCA) that comprised of ASEAN senior officials.
The Joint Meeting was convened twice in March 2012 in Phnom Penh, Cambodia and Singapore.
The result of the meeting was the completion of Terms of Reference (ToR) of the ACCWG in regards to the application of Timor Leste to become a Member State of ASEAN as well as its implications to ASEAN, by “harmonize[ing] the views of relevant ToR ACCWG in all three pillars of the ASEAN Community.” The ToR ACCWG includes the points of the scope of the ToR itself in the context of ASEAN membership application, the mandate and modalities of the ACCWG, and other technical issues related to the application of new membership in ASEAN.96 It is not to be regarded that ToR is not publically published to which the working mechanism of the Affairs of Republic of Indonesia, “Joint Preparatory Meeting for the Preparations of the 20th ASEAN Summit in Phonm Penh, Cambodia, 5 March 2012,” accessed in December 17, 2017) < https://www.kemlu.go.id/en/berita/siaranpers/Pages/Joint-Preparatory-Meeting-for-thePreparations-of-the-20th-ASEAN-Summit-inPhnom-Penh-Cambodia-5-Mar.aspx> Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 92 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… independent studies is unclear, at least to public.
Following such emergence of working group, a study was commenced by Prof. Dr. Richard Pomfret from the University of Adelaide, Australia in early 2013 to conduct a research in assessing the economic implications of acceding Timor Leste into ASEAN.
The study was funded from the Asia Development Bank.97 A study on political and security implications was also implemented by joining the Singapore-based Institute of Southeast Asian Studies (ISEAS) and the S. Rajaratnam School of International Studies (RSIS) in early 2015.98 Moreover, a study upon the socio-cultural implications was also performed by Malaysia’s Institute of Strategic and International Studies.99 As it is shown, the studies conducted upon Timor Leste under the mandate of ACCWG are respectively to three pillars of ASEAN.
Underlining this, the studies conducted upon Timor Leste to assess its capacity in joining ASEAN were independently commissioned by ACCWG, meaning that the researchers were experts outside ASEAN-related.
This may bring unbiased opinion.
However, there are no publications available in depicting the results of said studies, perhaps due to the intellectual property rights of the document from the studies belong to ASEAN.100 Moreover, Timor Leste apparently has never received as well the final reports conducted by those studies, despite it is the applicant 97 Termsak Chalermpalanupap, “Timor Leste’s Quest to Join ASEAN: The Process and the Pace,” ASEAN Focus 1, (2015): 9, <https://www.iseas.edu.sg/images/pdf/ASEANF OCUS_Issue1-2015.pdf> 98 Ibid 99 Ibid 100 Astriana, “Rethinking the Process for TimorLeste’s Application for ASEAN Membership,”3-4 101 The results of the interview of the Author with Marcos da Costa, the Counselor of the Embassy of country in which shall be informed the lack of capacity it may have to improve.
The reports are still confidential that supposedly will be disclosed to Timor Leste at the time ACCWG will visit Timor Leste personally.
Also, the meetings of ACCWG on Timor Leste’s Membership Application never involved officials of Timor Leste.101 The confidentiality nature of the results of the studies is also reaffirmed by ASEAN Secretariat staffs, which cannot be disclosed to public, even Timor Leste.102Such lack of transparency in the work of independent studies commissioned by the ACCWG is the issue of legal framework that ASEAN faces.
Nonetheless, Timor Leste has taken initiatives to prepare for its accession into ASEAN, particularly in the economic aspect.
Asian Development Bank, which funded the ACCGW-commissioned study upon Timor Leste as an assessment of membership application, has provided technical assistance (TA) for the preparation of regional economic integration since 2013 and is ongoing.
The TA essentially works in aligning Timor Leste’s current legal frameworks with the requirements under the ASEAN Community Blueprints and ASEAN legal instruments.103 It is targeted that the proportion of binding ASEAN legal agreements that Timor Leste should be in compliance with should increase to 50% by June 2018, which by 2015, there has been only 1.6%.104 Such low rate of compliance the Democratic Republic of Timor Leste in December 22, 2017 at 16.00 WIB 102 The results of the e-mail by the Author to the ASEAN Secretariat staffs in the Political and Security Directorate in December 22, 2017.
103 Asian Development Bank, “Democratic Republic of Timor Leste: Capacity for Regional Economic Integration,” Technical Assistance Report, (January 2016): 3, accessed in December 17, 2017, < https://www.adb.org/sites/default/files/projectdocument/184281/49002-001-tar.pdf> 104 Ibid, 6 https://www.adb.org/sites/default/files/project-document/184281/49002-001-tar.pdf https://www.adb.org/sites/default/files/project-document/184281/49002-001-tar.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 93 becomes a strong point for ASEAN to hold the accession of Timor Leste into ASEAN, as this shows the lack of capacity for Timor Leste in carrying out the obligations of membership, in accordance to Article 6 of the ASEAN Charter.
Another factor to be looked at is the political stability of one.
Although, it is not governed under ASEAN Declaration with great details, political cohesion is one of the aims of ASEAN to realize.
Thus, implicitly, political stability is acquired.
For comparison, the case of Cambodia’s admission into ASEAN truly depicts such requisite.
At the time, Cambodia suffered from political instability due to the coup in 1997, which resulting in the halt of Cambodia’s accession into ASEAN, as it was stressed by the Singaporean Prime Minister Goh Chok that political stability is linked to increased foreign investment.105 Hence, resulting in the delay of Cambodia’s entry.
Despite such instability occurring, ASEAN still wanted to include Cambodia as its tenth Member State, with certain criteria that Cambodia had to fulfill, namely: the internal political stability, respectful human rights and democracy, the free and fair election on July 26, 1998, and the government formation through the genuine election.
Even to assist Cambodia in meeting these requisites, ASEAN established the so-called ASEAN Troika, consists of the former chair, the current chair and the incoming chair of the ASEAN Standing Committee, to cope with Cambodia’s political crisis.
Although, the 105 “ASEAN and History of Cambodia’s Membership International Law Essay,” LawTeacher.net, (All Answers Ltd, November 2013), accessed in December 18, 2017 106 Julio S. Amador and Joycee A. Tedoro, The Role of the Association of Southeast Asian Nations in Post-Conflict Reconstruction and Democracy Support, (Stockholm: International Institute for Democracy and Electoral Assistance, 2016): 12, ASEAN Troika was unsuccessful, ASEAN eventually agreed to admit Cambodia as its tenth Member State by viewing the July 1998 election, as enough for Cambodia gaining its membership.106 Without explicit connotation, political stability is weighed in for one to become ASEAN Member State.
This also applies to the case of Timor Leste.
The political journey of Timor Leste had been very turmoil, considering the history of Timor Leste itself.
However, the first independent election in 2017 exemplifies an emergence of internal political stability.
Despite only gaining independence 15 years ago, the presidential as well as parliamentary elections were “organized in a peaceful manner” to which many Timorese were eager to gain its hardwon democratic rights.107 This should be taken into consideration for ASEAN Member States that Timor Leste, despite its young age of independence and turmoil history, is capable to maintain a stable condition in regards to its political views.
In a contrast to Cambodia, Timor Leste, since submitting its formal application to ASEAN, has not suffered from a political instability as worse as Cambodia at the time of its application.
Thence, Timor Leste should have more stance in gaining its membership underlying said situation, as Timor Leste may be deemed as capable in making political cohesion with other Member States, considering its own political condition is stable currently.
Despite all the considerations above that shall be taken into account by ASEAN in <https://www.idea.int/sites/default/files/publicatio ns/the-role-of-asean-in-post-conflictreconstruction-and-democracy-support.pdf> 107 Khoo Ying Hooi, “After Timor-Leste’s Eelection, a Young Democracy Looks Forward,” The Diplomat, (2017), accessed in December 18, 2017, <https://thediplomat.com/2017/07/after-timorlestes-election-a-young-democracy-looksforward/> https://www.idea.int/sites/default/files/publications/the-role-of-asean-in-post-conflict-reconstruction-and-democracy-support.pdf https://www.idea.int/sites/default/files/publications/the-role-of-asean-in-post-conflict-reconstruction-and-democracy-support.pdf https://www.idea.int/sites/default/files/publications/the-role-of-asean-in-post-conflict-reconstruction-and-democracy-support.pdf Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 94 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… admitting Timor Leste, it is evident that there are no substantive requirements set out under the ASEAN Charter.
This becomes a huge issue in stipulating to what constitutes as ‘ability’ of one to become a Member State, as each Member State shall have its own definition or understanding.
Such lack of substantive requirements become the obstacle for ASEAN Charter in becoming more of a rules-based organization – under the ASEAN Charter – due to vagueness of what is considered as being able to carry out obligations of ASEAN membership.
Furthermore, the function of ACCWG is also undetermined to which only drafts recommendations to ASEAN Summit upon the independent studies that are performed to the candidate countries, such as Timor Leste, or whether it is to set out the parameter that shall be met by Timor Leste in order to gain membership.
This is due to the unclear regulations or legal framework that stipulate the functions and mandate of ACCWG in which is inaccessible to public.
However, the application of Timor Leste is still being further assessed, as stated by ASEAN Secretariat staff: The study on Timor-Leste’s application for ASEAN membership is ongoing.
The members of ACC Working Group (ACCWG) met and discussed on this matter in early of December this year.
ASEAN Sectoral Bodies and Organs continue exploring relevant capacitybuilding activities for Timor-Leste’s participation, in accordance with the elements and procedures outlined by ASEAN Member States.108 108 The results of the e-mail by the Author to the ASEAN Secretariat staffs in the Political and Security Directorate in December 22, 2017.
109 GDP, an abbreviation of Gross Domestic Product, is a primary indicator to illustrate the health of a It is indicated that “the elements and procedures outlined by ASEAN Member States” in regards to the application of Timor Leste.
Therefore, perhaps, this causes the strict confidentiality of the procedures, as there may have political drive underlying such policy.
This, without a doubt, causes the legal framework of ASEAN to become not transparent and efficient.
4.
Consensus Towards Timor Leste’s Membership Application Although, the requisites of membership application has been described under the ASEAN Charter, the role of political consideration is inevitable to be weighed in upon the case of one’s accession into ASEAN.
This goes to Timor Leste as well to which affect the consensus in admitting the new member.
In this context, consensus is unable to be achieved due to objections of several Member States expressing concerns for the capacity of Timor Leste in carrying out obligations of membership.
Singapore has been the most reluctant to endorse Timor Leste’s admission with the basis of economic reasoning to which it views Timor Leste as having the possibility to burden ASEAN.
However, it is to be noted that the economic condition of Timor Leste does not have very much disparities in comparison with CLMV countries, particularly Cambodia.
For instance, the GDP rate of Timor Leste, by 2014, was higher than Cambodia, which indicates the financial ability that Timor Leste has, can be considered as more or equal to ASEAN Member State.109 This is conveyed by Figure 2 below, yet it is to be country’s economy in which representing the total dollar value of all goods and services produced over a specific time period (“What is GDP and why is it so important to economists and investors?” Investopedia (2017)) Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 95 noted GDP is not the only indicator of one’s economy: Figure 2: GDP Rate of Timor Leste v. Cambodia (source: World Bank) It may be deemed as illogical for Singapore to claim such opinion towards Timor Leste for the reason of not admitting <https://www.investopedia.com/ask/answers/199.
asp> it.
Therefore, independent studies under the mandate of ACCWG on Timor Leste’s Membership Application are conducted, as Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 96 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… there are Member States needed convincing that Timor Leste is able and willing to carry out the obligations of membership, which includes regional economic integration.
However, despite rejections, there are other ASEAN Member states that deliver their strong support for Timor Leste’s accession into ASEAN, especially Indonesia.
Timor Leste’s formal application that was submitted during Indonesia’s chairmanship in 2011 is viewed as no coincidence.
This depicts the political strategy that Timor Leste attempts to make in order to gain support hoping that consequently leads to consensus of ASEAN Member States, as it acquires for all Member States agree or at least no objection is forwarded.
As for the consensus-making in admitting Timor Leste as the eleventh Member State, it has not been conducted properly due to the view that Timor Leste must meet certain requisites to ensure its capacity in conducting the obligations of membership.
This is because the ACCWG on Timor Leste’s Membership Application still prevails, meaning that the recommendations that the ASEAN Coordinating Council must draft has not been completed yet, as independent studies needed to be analyzed, presumably.110 Thus, the consensus towards Timor Leste’s admission to ASEAN is the final step that must be taken to decide whether it shall be done or not.
5.
The Influence of ASEAN’s Membership System for its Development The transformation of ASEAN from an informal to a rules-based organization with 110 ASEAN Charter, Article 6 111 ASEAN Charter, Article 2 (2) 112 ASEAN Declaration 113 Paulina Rezler, “The Copenhagen Criteria: Are They Helping or Hurting the European Union?” the establishment of ASEAN Charter influences its membership system.
Nonetheless, it is still to be noted that the principles of ASEAN remain the same with enhancement on the aspects of politicalsecurity, economic, and socio-cultural, as it states in Article 2 (2) of the ASEAN Charter.111 The case of membership application by CLMV countries as well as Timor Leste truly signifies the changes that the membership system of ASEAN.
During the era of the ASEAN Declaration, as the constituent instrument, the membership system was informal to which the conditions of membership only acquired two factors, namely: geographical location and subscription to aims, purposes and principles.112 Evidently, the ASEAN Charter prescribes additional requirements, such as one’s capacity in carrying out obligations of membership.
Said condition becomes a huge obstacle for a Southeast Asian country to enter into ASEAN, as illustrated by the case of Timor Leste.
However, this causes ASEAN to be more structural with its rulesbased transformation.
The comprehensive requisites that are applied for Timor Leste’s application, regarding to the studies and the strategic development in order to gain full membership in ASEAN, almost mirror the membership requirements of European Union.
The European Union acquires the negotiation process in which essentially comprises of negotiations between the Member States and the candidate country to which discuss the alignment of the acquis or EU’s body of law.113 This requisite is similar Touro International Law Review 14, No.
2, (2011): 390, <https://www.tourolaw.edu/ILR/uploads/articles/ V14_2/5.pdf> Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN…| 97 to the case of Timor Leste’s accession into ASEAN that also acquire alignment of Timor Leste to its legal instruments, with approximately 64 substantive legal instruments to accede and also make the necessary changes to domestic legislation for implementation.114 Therefore, such alterations of membership requirements may predict ASEAN’s development into being a more institutional organization, similar to the EU.
Regardless, notice that there are no criteria set out of what constitutes as ability and willingness of one to become an ASEAN Member State.
The vagueness of said stipulation invites various interpretations.
This essentially leads to the failure of consensus-making towards the membership application of Timor Leste.
Hence, one Member State may deem as Timor Leste being able and willing to join ASEAN, others may disagree, as each sovereign has different outlook to what constitutes such.
In considering the transformation of ASEAN to become a rules-based organization, this is an obstacle.
IV.
CONCLUSIONS AND SUGGESTIONS A case that excellently portrays issue of membership is ASEAN that experienced two eras because of its shift from ASEAN Declaration to ASEAN Charter as its constituent instrument.
Therefore, this indefinitely caused changes in stipulations regulating membership admission in ASEAN itself.
The case of Timor Leste’s membership application to ASEAN is rather a unique one due to being the first Southeast Asian country that applies for said membership during the ASEAN Charter era, specifically applied in 114 Asian Development Bank, “Democratic Republic of Timor Leste: Capacity for Regional Economic Integration,” 2 March 4, 2011.
The requisites of geographical location and willingness to subscribe to aims, purposes and principles of ASEAN become insufficient as there are other additional requirements that must be fulfilled under the ASEAN Charter, namely: (a) location in the recognized geographical region of Southeast Asia; (b) recognition by all ASEAN Member States; (c) agreement to be bound and to be abide by the Charter; (d) ability and willingness to carry out the obligations of membership.
Timor Leste has met the first three requisites, yet it is the capacity of Timor Leste in carrying out its obligations as Member State that is still questioned, even until recently.
However, the vagueness and lack of transparency of the procedures in assessing said capacity as well as lack of substantive requirements become the obstacles of ASEAN’s legal framework to be effective.
This is undoubtedly exemplified by the case of Timor Leste’s membership application that has been ongoing since 2011-2017, and still not resolved.
Therefore, the goal of ASEAN in transforming into a more rules-based organization is still not shown, despite its adaptation of ASEAN Charter as its new constituent instrument since 2008 being entered into force.
The diversity of ASEAN Member States is the heterogeneity that ASEAN embraces.
This is portrayed through its regulations that do not include political orientation as one of the requisites in becoming a Member State, although political stability is acquired in a very flexible manner.
The case of Timor Leste’s membership application essentially shows that transformation into a rules-based Brawijaya Law Journal Vol.5 No 1 (2018) Culture and Technological Influence in Regulation 98 | Windraskinasih, Afriansyah The Struggle of Becoming the 11th Member State of ASEAN… organization with the establishment of ASEAN Charter does not necessarily make its legal framework to be effective, perhaps even more problematic.
The time-consuming of determining Timor Leste as eligible to become a Member State truly exemplifies such claim.
Therefore, the transformation of ASEAN in becoming more institutional has not been successful if viewing such from the viewpoint of its membership admission.
ASEAN, as a regional organization, has its own ways in dealing with issues, specifically membership issues.
It utilizes certain ways that may not be similar to other organizations to align with its own aims and purposes.
However, based on the analysis of the Author, it is suggested for ASEAN to elaborate more for the requisites of its new members, especially in the sense of substantive requirements to set out objective parameters.
This refers to the ‘ability’ of one in carrying out the obligations of membership.
Also, it is suggested for ASEAN to be more transparent to candidate countries that wish to join the Association for certainty of obtaining full membership.
In addition, Timor Leste shall keep its efforts being involved in ASEAN with its current status, as well as to gain its ASEAN full membership.
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DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.02.06 | 205 Compensation as Sanctions for the Perpetrators of Corruption in the Dimensions of Indonesian Criminal Law Renewal Kukuh Dwi Kurniawana, Dwi Ratna Indri Hapsarib, Yaris Adhial Fajrinc, Ach.
Faisol Triwijayad aLaw Faculty of University of the Muhammadiyah Malang, Email: kukuhdwik@gmail.com b Law Faculty of University of the Muhammadiyah Malang, Email: indri3009@gmail.com cLaw Faculty of University of the Muhammadiyah Malang, Email: yarisroyaadhifa@gmail.com dStudent of Law Master in the Faculty of Law, Universitas Brawijaya, Email: achfaisolt@yahoo.com.
Submitted : 2019-08-02 | Accepted : 2019-10-14 Abstract: Corruption is one of the negative consequence of corporate crime.
Corruption perpetrators from corporations are still relatively new in Indonesia, so legal reform is still needed, which is close to the purpose of criminal law.
The existence of legal sanction in the form of compensation becomes a breakthrough for one type of sanction and can impose the perpetrator of corruption.
Thus, in this study, we want to find a theoretical basis for corporate punishment that commits corruption and the existence of criminal sanctions for corporate compensation as perpetrators of corruption in efforts to renew criminal law.
This study uses normative research by approaching the conceptual approach.
From this research, finding a corporate foundation that commits corruption can be imposed by a criminal is in line with the purpose of punishment as well as by ius constituendum.
For compensation that is an alternative to corporate punishment as a perpetrator of corruption, it can be brought down along with the principal penalty which has the purpose of accountability and reconciliation, guidance, reintegration, socialization or means of resolving conflicts to the community.
Keywords: compensation sanction; corporation; corruption.
I.
INTRODUCTION Changes in society that occur are caused by systems that are integrated into the lives of the people that are related to each other.
According to Talcot Parsons, the system consists of four sub-systems that influence each other, which include economics, politics, law and culture, of which the four economic sub-systems have the strongest influence that can change the mailto:yarisroyaadhifa@gmail.com mailto:achfaisolt@yahoo.com Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 206 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... three sub-systems.1 Economic changes that are in line with the flow of globalization, also have an effect on changes in people's behaviour which shows the existence of a corporate dimension in people's living systems, so that corporate growth continues to increase rapidly from the number and size.
This illustrates that community activities in the economic, social, and political fields are largely influenced by corporate behaviour so that corporations have an important role in the development process in the economic and other living systems.
The role of corporations in the development of their activities can increase economic growth through the inclusion of the state in the form of taxes and even foreign exchange, as well as the provision of extensive employment for the community.
2 In 2019 the corporate role of the tax sector showed an increase of 0.94% from the previous year.3 With this, the existence of corporations has an influential impact on the country's economy.
The power of economic development forces the law to adapt and follow the changes that occur as a means of disciplining the community, because these developments can have a negative effect in the form of the birth of new crimes using corporate means4, because the corporation is used as a means to get the maximum profit often causes lawlessness5 and bring negative 1 Raf Vanderstraeten, 'Systems Everywhere?'
(2019), 36.3 (April) Systems Research and Behavioral Science 1-8, p. 3-4.
2 Lilik Shanty, 'Aspek Teori Hukum Dalam Kejahatan Korporasi' (2017), 3.1 (January-June) Pakuan Law Review 56, 60.
3 Agatha Olivia Victoria, 'Penerimaan Pajak Hingga Juli 2019 Hanya Tumbuh 2,68%', Katadata.Co.Id, 2019, <https://katadata.co.id/berita/2019/08/26/penerim aan-pajak-hingga-juli-2019-hanya-tumbuh-268>, date accesed: 9 October 2019.
4 Muladi and Dwiwidja Priyatno, Pertanggungjawaban Pidana Korporasi (Jakarta: Kencana, 2015), p.3.
consequences to others even to the wider community.
6 One of the characteristics of industrial society is the widespread and powerful corporation, both as economic actors and in social life in general.7 Government policies that are oriented towards economic development, one of which is through the establishment of various industries whose operations are largely played by corporations, often leading to deviant behaviour.
This corporate behaviour deviation in its activities was later known as corporate crime.
8 Corporate crimes can be interpreted as an organizational crime who committed crimes in the sector financial manipulation, accounting fraud, food fraud, cartels, bribery, toxic spills and environmental harms.
9 The emergence of the term corporate crime led to several forms of criminal acts entering into a part of the corporate crime, one of which was corruption.
This can be seen in the regulation of the subject of corporate law in Law Number 31 Year 1999 concerning the Eradication of Corruption Crimes juncto Law Number 20 Year 2001 concerning Amendment to Law 31 of 1999 concerning the Eradication of Corruption Crimes (hereinafter referred to as the Corruption Law), namely in article 1 paragraph (1), which reads Corporations are groups of 5 Puteri Hikmawati, 'Kendala Penerapan Pertanggungjawaban Pidana Korporasi Sebagai Pelaku Tindak Pidana Korupsi' (2017), 8.1 (June) Jurnal Negara Hukum 131, 132 .
6 Munir Fuady, Teori-Teori Besar (Grand Theory) Dalam Hukum, (Jakarta: Kencana, 2013), p. 196.
7 I.S.
Susanto, Kejahatan Korporasi (Semarang: Badan Penerbit Universitas Diponegoro, 1995), p.19.
8 Lilik Shanty, above n 2, 60.
9 Judith van Erp, 'The Organization of Corporate Crime: Introduction to Special Issue of Administrative Sciences' (2018), 8.3 (July) Administrative Sciences 36, 1.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 207 people and/or assets that are organized either as legal entities or not legal entities.
Law enforcement efforts against corporations that make corruption were carried out by law enforcement in this country.
Beginning in the case of PT.
Giri Jaladhi Wana was submitted as a defendant by the Prosecutor's Office and was prosecuted to court corruption in 2010, where it was the first corporation to be made a defendant and convicted.
10 Then there is also PT.
Duta Graha Indah, who is now PT.
Nusa Konstruksi Enjiniring (PT NKE) in 2017, was investigated by the Corruption Eradication Commission (KPK) and was named a suspect in a corruption case at the hospital building project at Udayana University.
11 PT NKE was convicted of a criminal act of corruption and was sentenced in the form of a fine of 700 million rupiahs and an additional penalty in the form of payment of replacement money of 85,490,234,737, as well as revocation of the right to participate in the auction of goods/services to government agencies.
12 If interpreting the law as an effort to countermeasure crime, repressive law enforcement, Hoefnagels refer to it as part of criminal policy.
The verdict on PT.
NJE above is a depiction of criminal law enforcement efforts in Indonesia leading to the company as a criminal corruption perpetrator.
The spirit of law enforcement on the 10 Budi Suhariyanto, 'Progresivitas Putusan Pemidanaan Terhadap Korporasi Pelaku Tindak Pidana Korupsi' (2016), 16.2 (June) De Jure 201, 207.
Through Decision Number 812 / Pid.Sus / 2010 / PN.Bjm, it was decided that PT GJW had been legally and convincingly proven guilty of committing criminal acts of corruption continuously and was convicted of a fine of Rp1,300,000,000, and additional criminal sanctions in the form of temporary closure six months.
On appeal, the Banjarmasin High Court upheld the previous Decision.
corporate law subject is currently experiencing obstacles, one of which is caused by the lack of regulation of the legal subject in the current Indonesian Criminal Code (KUHP).
The subject of corporate law is still partially regulated and spread in various laws outside the Criminal Code.
Taking into account these obstacles, the Mahkamah Agung13 (MA) issued a Peraturan Mahkamah Agung (PERMA) Number 13 Year 2016 concerning Procedures for Handling Criminal Cases by Corporations, to overcome the insecurity of law enforcers in prosecuting corporations as perpetrators of crimes.
Law enforcement for corporations as perpetrators of the crime as well as subjects of criminal law will have implications for the form and type of criminal sanctions and their punishment.
Throughout the author's coronation and by looking at Munir Fuady's14 opinion, until the year 2019 in Indonesia there are various types and forms of criminal sanctions that can be imposed on corporations, such as: fines, revocation of licenses, dissolution of corporations, compensation, obligation to do something, statements of apology to the people or to other parties who have been harmed, or revocation of rights certain other.
Especially for sanctions damages, has not been known in the Corruption Law because the law only recognizes some types of sanctions that can be imposed on a corporation, namely: first, Confiscation of 11 Budi Suhariyanto, 'Pertanggungjawaban Pidana Korporasi Berdasarkan Corporate Culture Model Dan Implikasinya Bagi Kesejahteraan' (2017), 6.3 (December) Rechsvinding 441, 444.
12 Dylan Aprialdo Rachman, 'Perjalanan Kasus PT NKE, Korporasi Pertama Yang Divonis Korupsi', Kompas.Com, 2019, <https://kilaskementerian.kompas.com/kemenpar/ read/2019/01/04/06115311/perjalanan-kasus-ptnke-korporasi-pertama-yang-divonis-korupsi>, date accesed: 1 July 2019.
13 Indonesia Supreme Court 14 Munir Fuady, above n 6, p.196.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 208 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... movable or immovable goods used or gained from corruption ; second, the payment of as much substitute money as possible with the property obtained from criminal acts of corruption; third, closure of all or part of the company for a maximum of 1 (one) year; and fourth, revocation of all or part of certain rights or the elimination of all or part of certain benefits.
There has been the threat of additional criminal sanctions in the form of payment of substitute money, but this is only intended as a means of returning state losses15 due to the corruption committed by the perpetrators.
Corruption crimes committed by corporations have extensive consequences and victims, not only the state but the people will likely become victims.
Compensation for corporations committing crimes is known in positive criminal law in Indonesia, which is contained in Law Number 8 Year 1999 concerning Consumer Protection, namely Article 63.
Seeing the existence of rules regarding compensation sanctions by the corporation, then there is no harm if the sanctions are considered as an alternative sanction for corporations in criminal acts of corruption.
So through this paper, the author will explain how the idea of criminal sanctions in the form of compensation is applied to corporations that are perpetrators of criminal acts of corruption, as a discourse on criminal law reform, especially regarding the types and forms of sanctions against corporations.
In connection with the description of the background above, the author raised two formulations of the problem as the subject of the study in this article, what is the theoretical foundation for criminal prosecution of 15 Nur Syarifah, 'Mengupas Permasalahan Pidana Tambahan Pembayaran Uang Pengganti Dalam Perkara Korupsi', Lembaga Kajian & Advokasi Independensi Peradilan, 2015, <http://leip.or.id/mengupas-permasalahan-pidanacorporations committing corruption?
And what are the ideas of compensation sanctions for corporate actors in criminal acts of corruption in the dimension of criminal law reform?
II.
LEGAL MATERIALS AND METHODS This research uses a normative research method, which is to examine the law at the norm level with the point of pressing the Corruption Crime law, especially the articles relating to the corporation as the subject of criminal law and the system of giving sanctions.
The approach used is the conceptual approach as part of the solution to the problem.
The author uses the concept of compensation sanctions as a solution to address the issue of corruption crimes committed by corporations, moreover, the type of sanctions are not known in the positive criminal law in Indonesia.
Then the primary data source comes from book, journals and data from online media as secondary data sources which are then processed descriptively.
III.
RESULT AND DISCUSSION a.
Foundations and Purpose Corporations Doing Punishment against Crime The influence of economic development in criminality is a significant factor, thus encouraging the involvement of corporations in a criminal act, such as tax fraud, environmental damage, and in the sector of misuse of state finance that has an impact on the destruction of the lives of the wider community.
16 Corporate growth along tambahan-pembayaran-uang-pengganti-dalamperkara-korupsi/>, date accesed: 21 July 2019.
16 Muladi and Dwiwidja Priyatno, above n 4, p. 4243.
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6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 209 with the negative effects it brings, such as environmental pollution, tax manipulation, labour exploitation which will cause business failure.
17 This led to developments in the existence of corporations as legal subjects, who initially as subjects of ordinary law became the subject of criminal law.
The development of the corporation as a subject of law cannot be separated from social modernization which can have an impact on the economy, social, politics, thus according to Satjipto Rahardjo, the development of social modernization requires a control system that can balance so that the orderly society is maintained.
18 The lawmakers initially held that only humans (individuals or individuals) could be the legal subject of a crime, which can be seen from the history of Article 59 of the Criminal Code, especially how the offence was formulated with the phrase "hij die" which means “whoever".19 The function of criminal law protects the community when it only emphasizes the imposition of criminal acts on individuals or individuals as legal subjects, the function cannot work.
The function of criminal law cannot be carried out when it is only focused on individuals as legal subjects because at this time the corporation can also commit criminal acts.
Corporations that commit criminal acts can be referred to as corporate crime, which is classified as the White Collar Crime (WCC).
Corporate crime as a WCC uses a sophisticated modus operandi that can be transnational in nature because it is carried 17 Martin S Bressler, 'The Impact of Crime on Business : A Model for Prevention , Detection & Remedy' (2009), 7.5 (May) Journal of Management and Marketing Research 1, 10.
18 Social modernization is a community change in life patterns because of the influence of outside culture and globalization.
See: Muladi and Dwiwidja Priyatno, above n 4, p. 44. out across countries and territories, resulting in a wide scope of crimes and the impact of very large losses.
The extent of the dimension of crime has implications for the expansion of the dimensions of victims of corporate crime that encompass society in general.
20 Even according to Kristian, the state can also be a victim of corporate crime in the form of state financial losses or the country's economy.
21 Seeing the qualifications of transnational crime, corruption can also be classified as a transnational crime, so it does not rule out the possibility of criminal acts of corruption carried out by legal subjects in the form of corporations.
Law enforcement for corporations that commit corruption by making it the subject of criminal law will result in the functioning of criminal law in protecting the wider community, as well as the interests of the state in general.
Besides, in the development of crime and criminal law, it began to take into account the fact that humans also sometimes carry out actions within or through organizations in civil law, so that arrangements exist for legal entities or corporations as subjects of law in criminal law.
22 Addressing corporations as a legal subject cannot be released from the viewpoint of civil law, because it is civil law that has a lot to do with corporate issues and at the same time initiates discussions about corporations as legal subjects.
"Person" in the view of civil law means the bearer of rights or legal subject (subjectum juris), but that is not the only legal subject (natuurlijke 19 Budi Suhariyanto, above n 11, 442.
20 Budi Suhariyanto, ibid.
21 Kristian, Hukum Pidana Korporasi: Kebijakan Integral (Integral Policy) Formulasi Pertanggungjawaban Pidana Korporasi Di Indonesia, (Bandung: Nuansa Aulia, 2014), p. 33.
22 Eddy O.S.
Hiariej, Prinsip-Prinsip Hukum Pidana, (Yogyakarta: Cahaya Atma Pustaka, 2014), p. 155.
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6 No.2 (2019) State Regulations and Law Enforcement 210 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... persoon) because there are still other legal subjects who according to the law can have rights and do legal acts like a human being, so that he has his wealth and by means of his management can be sued and sued before the court.
23 The legal subject in question is a legal entity (rechtspersoon) which means a person created by law.
24 It's just that corporations according to civil law have a narrower understanding than in criminal law.
According to criminal law, the corporation can be a legal entity or non-legal entity, whereas according to civil law the corporation has a legal entity.
25 The emergence of the corporate crime concept in the theory of criminal law according to Munir Fuady, is interpreted as an act of doing or not acting by a legal entity or body that carries or is expected to bring benefits to a legal entity or association by breaking the law, which resulting in losses to other people or to society at large.
26 The corporation was known as the subject of criminal law since the Emergency Law Number 7 Year 1955 concerning Investigation, Prosecution and Economic Criminal Justice, which is mentioned by the name of the legal entity, company, association or foundation.
27 The Indonesian Criminal Code currently does not place corporations as the subject of criminal law, but various laws and regulations that exist outside the Criminal Code have recognized and placed corporations as subjects of criminal law other than humans.
Muladi and Diah Sulistyani said there was about 62 legislation in Indonesia that regulated criminal liability by corporations28, such as detailed in the following table: REGULATION ARTICLE Emergency Law Number 7 Year 1955 concerning Investigation, Prosecution and Economic Criminal Justice Article 15 Law Number 31 Year 1999 in conjunction with law number 20 Year 2001 concerning the Eradication of Corruption Crimes Article 1 paragraph (1) paragraph (3) and article 20 Law number 8 Year 2010 concerning Prevention and Limitation of Money Laundering Crimes Article 6 paragraph (1) Law number 35 Year 2009 concerning Narcotics Article 1 number 21 Law number 8 Year 1999 concerning Consumer Protection Explanation of article 1 paragraph (3) Law number 22 Year 2001 concerning Oil and Gas Article 50 Law number 32 Year 2009 concerning Environmental Protection and Management Article 1 number 23 The table illustrates that corporations as the subject of criminal law have been known and spread in various rules in Indonesia, including the Corruption Law.
It 23 Lilik Shanty, above n 2, 57.
24 Subekti, Pokok-Pokok Hukum Perdata, (Jakarta: Intermasa, 1984), p. 21.
25 Muladi and Dwiwidja Priyatno, above n 4, p. 33.
26 Munir Fuady, above n 6, p. 195.
27 Putri Hikmawati, 'Kendala Penerapan Pertanggungjawaban Pidana Korporasi Sebagai provides consequences Corporate need to be constructed as the subject of criminal law.
The author also cites the opinion of Steven Box, where corporations are used as the Pelaku Tindak Pidana Korupsi' (2017) 8(1) Negara Hukum, p 133.
28 Muladi and Diah Sulistyani, Pertanggungjawaban Pidana Korporasi (Bandung: Alumni, 2013), p. 50-53.
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6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 211 subject of criminal law when crimes for corporations occur, namely crimes committed by corporations in achieving certain businesses and objectives to gain profits.
29 Furthermore, the reasons for corporations can be used as subjects of criminal law are based on a study conducted by the Criminal Law Team, the Badan Pembangunan Hukum Nasional (BPHN), which concludes that only the corporation management does not guarantee that the corporation will not do any prohibited laws.
30 The draft National Criminal Code began to include corporations as subjects of criminal law, as stated in the following formulation of Article 46: 1) The Corporation is the subject of Criminal Actions; 2) Corporations as referred to in paragraph (1) include legal entities in the form of limited liability companies, foundations, cooperatives, state-owned enterprises, regionally owned enterprises, or those that are equated with them, as well as legal entities or non-legal entities or business entity in the form of a firm, partnership, or equivalent to it by the provisions of the legislation.
This illustrates that the Indonesian 29 Kristian, 'Urgensi Pertanggungjawaban Pidana Korporasi' (2014), 44.4 (October-December) Jurnal Hukum dan Pembangunan 575, 587.
30 Muladi and Dwiwidja Priyatno, above n 4, p. 151.
31 Bilal Ramadhan, 'Ini Kronologis Kasus Bank Century', Republika.Co.Id, 2014, <https://www.republika.co.id/berita/nasional/huk um/14/03/06/n20q0m-ini-kronologis-kasus-bankcentury>, date accesed: 21 July 2019.
32 The purpose of absolute punishment is trapping through criminal imposition in accordance with the actions committed, retaliation is the legitimacy of punishment.
Vos believes that crime is seen as the basis of the involvement of the perpetrators.
The answer to absolute theory is a relative theory called criminal law in the future will include corporations as subjects of criminal law in addition to the legal subjects of people, so that in terms of criminal matters and punishment they must have aspired in line with the renewal of Indonesian criminal law.
Especially for corporate subjects in criminal acts of corruption, the definition of "person" is not merely interpreted as a human being but also includes a corporation, as stated in Article 1 point 3 of the Corruption Law.
The aim is to punish corporations as perpetrators of corruption based on negative impacts in the form of profits that are obtained by corporations against the law (contrary to law) and cause losses to the state and society.
This view of the broad negative impact can be seen in large corruption cases in Indonesia, such as the case of Bantuan Likuiditas Bank Indonesia (BLBI) in 1998 which contributed to the monetary crisis, or the Century Bank case in 2008 which caused the state to lose Rp.
6, 76 trillion as a result of setting the Bank Century as a failed bank with a systemic impact.
31 Theoretically, there are at least three types of criminal purposes, namely absolute, relative and combined.
32 The three goals of punishment reflect the will to be achieved from the existence of criminal law and punishment, where among the three have differences.
The purpose of punishment is a goal theory.
This theory aims to prevent being divided into two forms of prevention specifically and in general.
Prevention of the general public through the formulation of heavy crimes in articles of criminal offenses so that people are reluctant to commit crimes, special granting is shown to perpetrators where the criminal is used as a means of improving the perpetrators.
Then the combined theory developed, Grotius and Hugo de Groot revealed criminality to criminals is fairness, but to what extent is the crime worthy of being charged?
Vos as a follower of the combined theory expressed revenge and protection of the people.
See : Eddy O.S Hiariej, above n 22, p. 31-43.
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6 No.2 (2019) State Regulations and Law Enforcement 212 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... manifestation of criminal sanctions as a reaction to a violation of the provisions of criminal law so that the placement of a corporation as the subject of criminal law must automatically also refer to the purpose of the sentence.
The purpose of punishment according to the Draft National Criminal Code in Article 55 whose contents are as follows: 1.
Punishment aims: a. prevent criminal acts by enforcing legal norms for the protection and protection of society; b. socializing convicts by holding coaching and mentoring so that they become good and useful people; c. resolve conflicts caused by criminal acts, restore balance, and bring a sense of security and peace in society; and d. Growing feelings of remorse and freeing guilt in the convicted person.
2.
Criminalization is not intended to provide suffering and degrading human dignity.
Seeing the formulation above, the punishment in the paradigm of renewing national law, began to leave the retributive/absolute paradigm.
Moreover, in the general explanation section of Law Number 12 Year 1995 concerning Corrections, it provides the basic reference that Indonesia as a country based on Pancasila has new thoughts on the function of punishment which is no longer merely 33 The involvement of corporations is one of the efforts to avoid criminal acts against corporate employees, because they can be weak parties.
See: Sutan Remi Sjahdeini, Pertanggungjawaban Pidana Korporasi, (Jakarta: Grafiti Pers, 2007), p. 53 and 59.
34 As Mudzakkir argues, corporate punishment aims to provide legal protection to the community, prevent victimization due to corporate actions, and can increase state income due to a crime deterrence but also an attempt at social rehabilitation and reintegration criminals.
Seeing the purpose of the sentence and correlating with the existence of the corporation as the subject of criminal law, the author has the following conclusions: 1) Making a corporation as the subject of criminal law is an alternative step of accountability for a criminal act (criminal responsibility not only for people but also for corporations), while at the same time reducing the reasoning of the legal subject of people.
33 2) Giving criminal sanctions to corporations can provide the effect of prevention and protection of society at large34, as the purpose of punishment according to relative theory.
3) Giving criminal sanctions to corporations can also be intended as a means of resolving conflicts35 due to the existence of a crime.
Regarding the penalties or sanctions that can be imposed on corporations there are various forms, and for the Corruption Law itself, it recognizes several types of criminal sanctions for corporations, the first principal penalty which can only apply criminal penalties plus the maximum criminal provisions plus 1/3 (one third) as contained in Article 20 paragraph (7).
The two additional crimes contained in article 18 can be applied to all corporations.
The effort to include corporations as the subject of criminal law, which had committed by the corporation.
See: Putri Hikmawati, above n 27, 146.
35 Indonesian society with its Pancasila paradigm views crime as a disruption of evenwichtoring, harmony and harmony in people's lives which results in damage to individuals and society.
So that punishment is a public reaction that aims to restore damage to balance, harmony, and harmony as a result of a criminal offense.
See: Muladi, Lembaga Pidana Bersyarat (Bandung: Alumni, 1985), p. 56 and 60-61.
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6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 213 implications for the opening of opportunities to convict corporations, is not smooth.
There are contradictory opinions on the idea of including corporations as subjects of criminal law, which generally use the argument that corporations do not have “mens rea” (heart attitude) as an element of error according to the principle of "geen straf Zonder Schuld" (no criminal without error).
“Mens rea” is only owned by the legal subjects of people, so everything he does is through the organs of his directors.
36 In addition to being based on the principle of “geen straf Zonder Schuld, contradictory opinions are also based on the principle of “societas delinquere non-potest” or “Universitas delinquere non-potest” (legal entities cannot commit criminal acts).
37 Whereas for those who are pro against the placement of corporations as the subject of criminal law, they are based on several doctrines, including: 1) Principle of equality before the law, where treats corporations like humans (natuurlijk persoon) and burdens the responsibility for criminal acts made in line with the principle of law that anyone is equal before the law.
38 2) Direct Corporate Criminal Liability Theory, which essentially states that the actions of certain agents of a corporation, as long as they are related to the corporation, are considered as actions of the corporation itself.
39 3) Strict liability interpreted as a crime does not require the existence of “mens rea”, but only requires the existence of an act.
40 L.B.
Curzon explained that the basis of this doctrine was one of the 36 Budi Suhariyanto, above n 11, 442.
37 Sutan Remy Sjahdeini, Pertanggungjawaban Pidana Korporasi (Jakarta: Grafiti Pers), p. 53.
38 Sutan Remy Sjahdeini, Ibid.
39 H.A.
Palmer dan Henry Palmer as quoted Ali Mahrus, Asas-Asas Hukum Pidana Korporasi (Jakarta: PT RajaGrafindo Persada, 2013), p. 106. reasons for seeing the high level of social danger caused by the crimes committed.
41 4) Vicarious liability is the concept of someone's responsibility for mistakes made by others, such as actions taken that are still within the scope of their work.
42 Because employers (corporations) have control and power over them (administrators and employees), and the profits that they get belong to the employer (corporation).
43 For the author himself, the corporation is now right to be included as one of the subjects of criminal law, given that the type and modus operandi of crime are increasingly serious and it has a broad impact/victim, especially the community.
Although the author agrees to place the corporation as the subject of criminal law, in terms of convicting corporations it must be wise to pay attention to the purpose of the punishment which is in line with the ideals of reforming Indonesian criminal law.
Criminalization against corporations who are perpetrators of corruption crimes had a purpose to be achieved, which the author based on the current enactment of the Corruption Law.
The purpose of punishment for the corporation is: First, to restore losses to state finances, which are reflected in the form of sanctions "seizure of tangible or intangible movable or immovable property used for or obtained from criminal acts of corruption", and sanctions "as much as possible to pay substitute money.
With assets obtained from corruption "as formulated in 40 Barda Nawawi Arief, Perbandingan Hukum Pidana (Jakarta: PT Rajawali Pers, 2002), p. 154.
41 Mahrus Ali, Asas-Asas Hukum Pidana Korporasi (Jakarta: Rajawali Pers, ), p. 114.
42 Barda Nawawi Arief, above n 40, p. 33.
43 C.M.V.
Clarkson as quoted Mahrus Ali, above n 41, p. 119.
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Article 18 paragraph (1) letter (a) and (b) of the Corruption Law, where the sanctions are included in the part of the types of additional sanctions.
Secondly, to ensnare the corporation, which is reflected in the form of fines as a type of principal in the provisions of Article 20 paragraph (7) of the Corruption Law.
The purpose of punishment in the form of trapping is rooted in the purpose of retaliation as in the doctrine of retributiveism in the Classical view.
Johanes Andenaes said the main purpose of the crime is to satisfy the demands of justice that the imposition is solely to seek justice by taking revenge.
44 Third, as a prevention measure, 45 which is reflected in the form of sanctions "closure of all or part of the company for a maximum of 1 year" and sanctions "Revocation of all or part of certain rights or the elimination of all or part of certain profits" as stipulated in Article 18 paragraph (1) letters (c) and (d) Corruption Law b.
Penalties Sanctions against Corporations as Criminal Sanctions in Corruption Crimes 1) Position of compensation for damages in Indonesian positive criminal law The form of criminal sanctions (criminal punishment) in Indonesian positive law consists of basic and additional criminal penalties and is regulated in Article 10 of the Criminal Code.
This type of principal consists of capital punishment, imprisonment, confinement and fines, while additional types of criminal penalties include seizure of certain goods, criminal penalties for the revocation of certain rights, and the 44 Eddy O.S Hiariej, above n 22 , p.33.
45 Corporate punishment aimed at prevention is based on the results of studies conducted by the BPHN criminal law section in 1980/81.
See: Muladi and Dwiwidja Priyatno, above n 4, p. 151.
46 The classic criminal aim is the purpose of imposition of criminal sanctions that focuses on criminal announcement of judges' decisions.
In principle, this additional criminal is facultative, which means that in its decision, the panel of judges may or may not drop the additional type of criminal offence against someone who has been proven guilty.
The imposition of this additional criminal type cannot stand alone as a basic crime, or in other words, this type of additional criminal must follow the existence of a basic crime.
In addition to recognizing the existence of the Criminal Code and Criminal Procedure Code, Indonesia's positive criminal law also recognizes the existence of various laws and regulations outside the Criminal Procedure Code as standing legal enforcement of criminal law in Indonesia.
The position of various regulations outside the Criminal Procedure Code is “lex specialis”, where if something to enforce criminal law is specifically regulated by the law, then it will override the provisions in the Criminal Code as “lex generalis”.
The enactment of a “lex specialis” provision also has implications for the regulation of criminal systems outside the Criminal Code which are specific and different from those stipulated in the Criminal Code.
Criminal systems in principle are a way of realizing the purpose of punishment, so that in the dimension of reforming Indonesian criminal law regarding the purpose of punishment also experiences developments that cannot be separated from the objectives of modern criminal law.
46 The development of the purpose of this punishment is the orientation of Indonesian criminal law to be in harmony with the sociocultural, socio-political, and socio-juridical punished acts, different from the objectives of modern crimes, which are not only acts that are targeted by crimes, but also people who are known as dader-strafrecht.
See:Eddy O.S Hiariej, above n 22, p.25.
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6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 215 aspects reflected in the Pancasila.
Also, criminals will need to pay attention to the position of parties outside the perpetrators, namely victims and the community.
The Corruption Law, as one of the laws that are “lex specialis”, has a criminal structure that is different from that found in the Criminal Code.
The difference lies in the rules regarding additional types of criminal acts in Article 18 paragraph (1) of the AntiCorruption Act, which recognizes four additional criminal forms, namely criminal: first, "seizure of tangible or intangible movable or immovable property used for or obtained from criminal acts of corruption, including convicted companies where criminal acts of corruption are committed, as well as goods that replace those items "; second, "payment of as much as possible substitute money with property obtained from corruption"; third, "closure of all or part of the company for a maximum of 1 year"; and fourth, "criminal Revocation of all or part of certain rights or the elimination of all or part of certain benefits, which have been or can be given by the Government to the convicted person".
The existence of the provisions of Article 18 paragraph (1) does not necessarily negate the provisions of Article 10 of the Criminal Code, because in law enforcement corruption acts apply both articles.
Related to the subject of criminal law in the form of corporations, Muladi and Diah Sulistyani47 said that there are around 62 laws in Indonesia that regulate that, which also illustrates various forms of criminal sanctions.
Munir Fuady48 mentioning the existence of various forms of additional criminal sanctions, such as revocation of 47 Muladi and Diah Sulistyani, above n 28, p. 50-53.
48 Munir Fuady, above n 6, p.196.
49 M. Sholehudin, Sistem Sanksi Dalam Hukum Pidana (Ide Dasar Double Track System Dan permits, dissolution, compensation, the necessity to do something, a statement of apology to the people or to other parties who have been harmed, or revocation of certain other rights.
Based on Munir Fuady's description, the compensation sanction (as the focus of this paper) has not been regulated as one of the types of sanctions in corruption in the Corruption Law.
Indeed the Corruption Law recognizes additional sanctions in the form of payment of substitute money, the amount of which should not exceed the loss due to corruption committed by the perpetrator.
But this is deemed by the author to be less relevant if it is dropped on the subject of corporate law, given the characteristics of the corporate crime that have been described previously, such as being organized and having serious and widespread impacts/victims.
Also, sanctions for paying substitute money to the state are deemed to be less targeted, because the corporation has a function and social responsibility towards the surrounding community.
Even though the consequences of corruption are not only detrimental to state finances but also harm the value of justice felt by the community.
The value of community social justice in efforts to enforce the law of corruption is contained in the first paragraph of the general explanation section of Law 31 of 1999, which states: "To realize a just, prosperous, and prosperous Indonesian society, prevention efforts need to be continuously improved and eradication of criminal acts in general as well as criminal acts of corruption in particular ".
Criminalization in the framework of reforming Indonesian criminal law must refer to the Pancasila philosophy49 as the soul of Implementasinya), (Jakarta: PT Raja Grafindo Persada, 2003), p. 106-110.
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6 No.2 (2019) State Regulations and Law Enforcement 216 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... the Indonesian people, which demands a balance and harmony between the interests of individuals, communities, nations and countries.
So that criminal law and punishment in Indonesia must be oriented to the balance of the interests of individuals (actors), and the interests of the community including victims of crime.
Van Boyen defines victims as parties to crime schemes both individually and in groups that have suffered losses, including physical and mental injury, emotional suffering, economic loss or real deprivation of their basic rights, both because of action (by the act) and because of negligence ( by omission).
50 According to Lilik Mulyadi, there are two types of rights that the victim has, namely procedural rights and service rights, where the right of service is carried out through compensation in the form of compensation, restitution, or an effort to return to the original condition.
51 Arif Ghosita said that the victim has the right to be compensated for as a result of the occurrence of a criminal offence,52 especially about crimes committed by the corporation, so it is highly recommended that compensation be given due to the wide and serious impact.
The Criminal Procedure Code regulates the opportunity to be able to award compensation through means of combining criminal cases with civil law, namely in Article 98 up to Article 101 of Law Number 8 Year 1981 concerning Criminal Procedure Law.
But the combination of compensation claims is limited to material losses, not including immaterial losses.
Another disadvantage is that if a criminal case is not carried out a legal remedy, the legal claim filed by the victim cannot be requested for 50 Rena Yulia, Viktimologi: Perlindungan Hukum Terhadap Korban Kejahatan, (Yogyakarta: Graha Ilmu, 2013), p. 50. legal action.
Then related to victims' restitution rights, which are regulated in Law Number 13 Year 2006 concerning the Protection of Witnesses and Victims in conjunction with Law Number 31 Year 2014 concerning the Regulation of the Act on Law Number 13 Year 2006 concerning Protection of Witnesses and Victims.
However, the law does not explain the perpetrator as a corporation, as well as the limitation of compensation rights only for gross violations of human rights violations.
Other weaknesses in compensation (restitution and compensation) are not integrated into the criminal justice system, so there is no binding force.
It is different if it is integrated into the criminal justice system with a judge's decision that has binding legal force and the power of execution that has legal certainty.
Actually, at this time there has been a known settlement of corruption cases outside the criminal justice line or commonly referred to as the non-criminal approach (in addition to the approach through criminal or criminal justice).
The non-penal approach is the use of a civil law mechanism, with the terms/conditions of the case not having enough evidence to be prosecuted criminally and in the case of the death of the defendant, as stipulated in Article 31 up to Article 34 of Law 31 of 1999.
This nonreasoning is very possible to apply to the subject of criminal law in the form of a person, and it is not possible for a corporation because of the condition that the "defendant dies".
Sanctions for compensation as a form of criminal sanctions are regulated in a number of regulations outside the Criminal Code, one of which is Law No.
8 Year 1999 51 Lilik Mulyadi, Bunga Rampai Hukum Pidana Perspektif Teoritik Dan Praktik, (Jakarta: Alumni, 2008), p. 408.
52 Rena Yulia, above n 50, p. 43.
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6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 217 concerning Consumer Protection Article 63, which reads: "Against criminal sanctions as referred to in Article 62, additional penalties may be imposed , in the form of: a. seizure of certain goods; b. announcement of the judge's decision; c. compensation payment; d. order to terminate certain activities that cause consumer losses; e. obligation to withdraw goods from circulation; or f. revocation of business license ".
There is no phrase which states that all of them are "additional crimes" in the formulation, but looking at the forms of sanctions and seeing their relevance to Article 62 which regulates criminal sanctions, the author can interpret that this is a type of additional criminal sanction.
Taking into account the recognition of compensation sanctions for corporations as perpetrators of crimes in the consumer field, there is no harm if these compensation sanctions are also possible to apply to corporate actors in criminal acts of corruption.
Sanctions for compensation for corporations who commit corruption have a fundamental difference with the types of sanctions for payment of substitute money as stipulated in the current Anti-Corruption Law.
The most principal difference is regarding its purpose, where sanctions for payment of substitute money are aimed at returning state losses as a result of criminal acts of corruption, while these compensation sanctions are intended as a means of resolving conflicts due to the occurrence of criminal acts of corruption between corporate actors and the public.
This compensation penalty also differs from the issue of the 53 Budi Suhariyanto, 'Restoratif Justice Dalam Pemidanaan Korporasi Pelaku Korupsi Demi Optimalisasi Pengembalian Kerugian Negara' (2016), 5.3 (December) Rechsvinding 421, 422.
According to Budi Suhariyanto, through restorative justice, it is expected that the corporation will become cooperative in returning the financial losses of the country being corrupted rights of restitution of perpetrators to victims which are currently regulated in the Witness and Victim Protection Act, where the right of refusal is submitted/petitioned by the victim to the court, while for compensation later through the prosecutor's demands.
Even the regulation regarding compensation sanctions can open the opportunity for settlement through a restorative justice approach.
53 In addition, ideally the right to restitution is possible for victims who are of a noncommunity nature who are broad and communal, and ideally those who are "prosecuted" to pay for the right to restitution are perpetrators who are individuals and not corporations.
Provision of sanctions for corporations who commit corruption should be taken wisely.
Although there are other sanctions such as sanctions "closure of all or part of the company for a maximum of 1 year" and "Revocation of all or part of certain rights or the elimination of all or part of certain profits" as stipulated in Article 18 paragraph (1) letter c and d the Corruption Law, this must be considered about the side effects if the sanctions are imposed.
It is undeniable that corporations have a very important role in the development process in the economic field, where the role of corporations in the development of their activities can increase economic growth through the inclusion of the state in the form of taxes and even foreign exchange, and the provision of extensive employment for the community.
In view of this, Yoshio Suzuki's opinion in his book "The Role of Criminal Law in the Control of without having to face prosecution before the trial.
His opinion is seen by the author as quite relevant if it is associated with the idea of compensation sanctions by corporations who are corruptors, because it is possible to reach an agreement between the corporation and the community in an effort to resolve conflicts due to corruption.
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The imposition of the two types of sanctions opens up the possibility of suffering that is not only accepted by the corporation, but also for workers who will be threatened with termination of employment.
So that compensation sanctions for corporate perpetrators of corruption are expected to be a middle way of achieving the goal of conviction that sets the values of social justice for the people of Indonesia, as well as a means of law enforcement.
2) The Idea of Corporate Penalty Sanctions in Corruption in Indonesia Moving on from what was stated by Herbert L. Packer on the existence of criminal sanctions in people's lives that are very necessary for dealing with crimes but also as a real threat to the community, the use of criminal sanctions for legislation needs to be done properly and correctly.
54 Moreover, it was associated with the opinion of Yoshio Suzuki above, as well as the opinion of Budi Suhariyanto regarding the idea of corporate depenalization of corruption perpetrators based on rational reasons related to national economic stability (including the fate of employees / corporate workers) that could trigger the emergence of crises in various fields, the imposition of sanctions on the corporation must be carried out wisely and carefully.
Paying attention to these considerations, the issue of law enforcement on corporations who commit corruption must be based on reasoning policies that are in line 54 Dey Ravena and Kristian, Kebijakan Kriminal (Jakarta: Kencana, 2017), p. 114. with the ideals of reforming Indonesian criminal law.
First and second paragraphs General explanation of Law 31 of 1999 concerning Eradication of Corruption Crime mandates the following: “National development aims to realize Indonesian people as a whole and Indonesian society as a whole that is fair, prosperous, prosperous, and orderly based on Pancasila and the Indonesian Constitution.
To realize this just, prosperous, and prosperous Indonesian society, efforts need to be continually improved prevention and eradication of criminal acts in general and criminal acts of corruption in particular.
During national development efforts in various fields, the aspirations of the community to eradicate corruption and other forms of irregularities have increased, because in reality corruption has caused enormous losses to the state which in turn can have an impact on the emergence of crises in various fields.
For this reason, efforts to prevent and eradicate corruption need to be intensified and intensified by upholding human rights and the interests of society.” This general explanation illustrates the existence of integration between criminal law policies (reason policy), and social policies and criminal policies.
Crime prevention efforts are essentially an integral part of social protection efforts and efforts to achieve social welfare, so the main purpose of criminal politics is to provide protection for the community and to achieve public welfare.55 Efforts to improve public welfare 55 Criminal politics is part of social policy, which is interpreted by Sudarto as a rational effort by the community in tackling crime.
While Marc Ancel Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 219 (as one of the directions of social policy) are through a criminal policy approach (as a crime prevention effort), namely by increasing efforts to prevent and eradicate corruption, because these crimes can have an impact on state losses which have implications for the ideals of national development.
The crime prevention efforts can be implemented through reasoning facilities, namely through the enforcement of criminal law as a form of a means of reasoning policy that upholds human rights and the interests of society.
It is not wrong if Law Number 31 Year 1999 in the explanation section mentions "public interest" as something that should not be forgotten in terms of law enforcement of corruption so that in terms of law enforcement, corruption should be neglected regarding the position of the community as victims.
As Mardjono Reksodiputro's opinion56, that the loss of the community due to corruption should not only be seen from economic losses (material, pen), but also that are not less important and greater are those which are immaterial losses in the form of public trust in the government and the private sector (corporations, pensioners).
Specifically regarding the perpetrators of corporate crime which is quite relevant about corruption, is the opinion of Kristian57 regarding social and moral losses in the form of damage to public trust in business people, because such crimes are integrated into a legitimate business structure.
It is the social interest of the community that is not currently formulated criminal policy as a rational control of crime by society.
G. Peter Hoefnagels is clearer in interpreting criminal policies, namely the science of reactions in dealing with crime, tackling crime, designing behavior for crime prevention.
See: Yaris Adhial Fajrin and Ach Faisol Triwijaya, 'Pencegahan Korupsi Pasca Putusan MK Nomor … Op.cit.
', 46.
56 As quoted: M. Arief Amrullah, Perkembangan Kejahatan Korporasi, Dampak Dan reached by law in the context of law enforcement against corporations who are corruptors.
The sanctions against corporations who are currently corruptors are only intended as a means of prevention, moreover as a means of deterrence, and sanctions that have not been seen as a means of resolving conflicts are felt by the community.
Or in other words, the sanctions that exist today do not reflect efforts to restore the public's sense of trust towards corporations in particular corruption, and it can have an impact on eroding public trust in business people (corporations) in general.
Sanctions for substitute money payments that are currently available the only function to restore state losses due to corruption, but have not touched reconciliation values between corporations as actors with the community.
Attention to "the interests of the community" is also part of the rule of reform of Indonesian criminal law as stated by Barda Nawawi Arief.
According to him the rule of renewal of national criminal law includes the monodualistic balance between society and individuals.
58 These balance values will lead to the ideals of social justice for all the people of Indonesia as mandated by the fifth principle of Pancasila and also as a basis for the social policies contained in the general explanation section of Law Number 31 the Year 1999 concerning Eradication of Action Corruption Crime.
Corporate relations with the issue of the social interests of the community are also reflected in the existence Permasalahan Hukum (Jakarta: Kencana, 2018), p. 65.
57 Kristian, above n 29, 586.
58 Monodualistic ideas are values derived from Pancasila.
Monodualistic values refer to the nature of Indonesian human beings as personal beings as well as social beings.
See: Muladi, Beberapa Catatan Berkaiatan Dengan RUU KUHP Baru, (Batam, 2004).
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 220 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... of corporate social responsibility (CSR) as a corporate responsibility to the community.
CSR aims as a corporate social investment to get a positive image or view, as part of the company's business strategy, to obtain community support for the company, and part of the company's risk management to reduce and avoid social conflicts caused by the existence of the company.59 Regulatory CSR is regulated in Law Number 40 Year 2007 concerning Limited Liability Companies, where it is an obligation of the Company whose implementation is carried out by observing propriety and fairness.
A brief description of the CSR illustrates that the existence of a corporation cannot be separated from its social and moral obligations and responsibilities towards the environment and its community so that all the consequences of corporate activities (both positive and negative) must be accountable to one of them.
The return of the results of corruption is not an excuse to erase the error, so in other words, it illustrates the law enforcement of criminal acts of corruption leads to the principle of “primum remidium”.
Paying attention to this direction, a sanction is needed that can accommodate the interests of all parties, whether corporate, community and state actors and not merely to provide deterrence or retaliation.
Munir Fuady revealed that currently there are models of non-conventional criminal penalties that are deemed suitable for a corporation that has committed a crime, one of which is: Community Service Punishment for corporate crime that has a negative impact on the community, so that the community it received a kind of compensation from the 59 Meilanny Budiarti and Santoso Tri Raharjo, 'Corporate Social Responsibility (CSR) Dari Sudut Pandang Perusahaan' (2014), 4.1 (June) Jurnal SHARE Social Work Journal 13, 15. results of the execution of the sentence.
60 The absence of criminal sanctions aimed at resolving conflicts due to corruption carried out by corporations has provided room for new ideas regarding the regulation of compensation sanctions for the corporation.
Efforts to incorporate current cases as stipulated in the Criminal Procedure Code also have weaknesses, so that by including compensation sanctions as a type of additional sanctions in criminal law regarding eradicating corruption is a middle way to achieve law enforcement goals as well as efforts to prioritize the interests of society.
The positive impact of the imposition of compensation sanctions is: 1) As a means of resolving conflicts as the purpose of punishment in the dimensions of national criminal law reform; 2) Returning public/community trust to corporations who are corruptors in particular, and other (corporate) business actors in general; 3) Returning losses due to corruption, both materially and immaterial; 4) Reducing reasoning to corporate managers; 5) Avoiding types of sanctions that can harm employees/employees of the corporation; and 6) Open opportunities for using the restorative justice approach in efforts to resolve corruption cases committed by corporations.
Giving sanctions for compensation to the corporation for the perpetrators of corruption is actually to give the burden of responsibility due to the occurrence of these crimes to the corporation and the compensation is intended for the benefit of 60 Munir Fuady, Doktrin-Doktrin Modern Dalam Corporate Law Dan Eksistensinya Dalam Hukum Indonesia, (Bandung: Citra Aditya Bakti, 2002), p. 29.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrator...| 221 the community.
That responsibility is part of the correctional process and helps harmonize the company and society.61 The idea of compensation penalties for corporations who commit corruption does not collide with the provisions of existing sanctions, such as fines and sanctions for payment of substitute money.
Penal sanctions as a type of principal can be imposed simultaneously with the compensation sanction as an additional sanction, in which penalty penalties have a limit of the amount that is limitations.
Limitation of fines sanctions is possible not to achieve the number of losses caused by criminal acts of corruption so that the sanctions are intended as means of deterrence.
Material state losses can be returned through sanctions for payment of substitute money by corporate actors so that the purpose of "redemption" can be achieved through these sanctions.
Whereas sanctions for compensation to corporations as perpetrators of corruption are a means of reconciliation, guidance, reintegration, resocialization, or as a means of conflict resolution, so that compensation sanctions, in this case, are not always in the form of nominal money (material) because these sanctions are more immaterial and immediately felt/accepted by the community.
Sanctions for compensation need to be based on the judge's decision as a way to have the power to press on the corporation of the perpetrators of corruption to account for their actions to the community.
Regarding the extent and locus of the people who receive compensation, it can be seen from the magnitude of the loss or impact of the crimes committed by the corporation, 61 Yusrizal, 'Tanggung Jawab Korporasi Terhadap Korban Kejahatan Tindak Pidana Lingkungan and by paying attention to the place of residence as the scene of the crime.
The idea of the author regarding the application of compensation sanctions to corporations that commit criminal acts as a renewal step for National criminal law which is oriented towards resolving conflicts between perpetrators and victims while at the same time presenting a balance between individuals and society.
IV.
CONCLUSION AND SUGGESTION Corporations can be categorized as one of the legal subjects in criminal acts of corruption because corporations to achieve the objectives of obtaining profit are made illegally.
The current purpose of pipetting begins to be directed toward the urgency of renewal of criminal law which begins to abandon the paradigm of retaliation.
Current criminalization should be based on Pancasila as a basic idea that is not oriented to the punishment but as rehabilitation and social reintegration to criminals.
Positioning corporations as the subject of criminal law in corruption crimes should be directed to three main objectives; Restore the country's financial losses, ensnare corporations and preventive efforts.
However, criminal rationing for corporations raises the issue of national economic stability.
The author considers the selection of criminal types that impact the deterrent effect but still positioning the social interests of society as well as the values of balance can be realized with criminal damages.
Criminal damages against corporations who commit future corruption crimes are expected to be a solution to provide a pattern of balance between crime prevention and a very Hidup' (2012), 14.2 (August) Kanun Jurnal Ilmu Hukum 217, 218.
Brawijaya Law Journal Vol.
6 No.2 (2019) State Regulations and Law Enforcement 222 | Kurniawan, Hapsari, Fajrin, Triwijaya Compensation as Sanctions for the Perpetrators... important corporate existence.
This balance pattern is a national criminal law reform direction as a form of compromise of some interests.
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Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 1 Volume 2(S) No.
1 (2015) ALIGNMENT OF MALAYSIA AND ASEAN AGREEMENTS ON ICT LAWS: A REVIEW Nazura Abdul Manap (Ph.D) Associate Professor Faculty of Law The National University of Malaysia (UKM) 43600 Bangi, Selangor, Malaysia.
nazura@ukm.edu.my ABSTRACT The mega Multimedia Super Corridor (MSC) project launched in 1996 is a strong endorsement of the Malaysian government’s commitment toward developing ICT industry in Malaysia.
To attract world-class technology companies and prepare the local ICT industry, the government has offered MSC Malaysia status to companies developing or using multimedia technologies in producing and enhancing their products and services and locating in any of the 26 cyber-cities and cyber-centres in Malaysia.
MSC status confers incentives, rights, and privileges under the MSC Malaysia Bill of Guarantees.
This ICT initiative also underlies Malaysia’s commitment to lead the region in protecting intellectual property and adherence to cyber laws.
As a member of e-ASEAN, this assurance aligns with the e-ASEAN initiative: ‘… to adopt electronic commerce regulatory and legislative frameworks that create trust and confidence for consumers and facilitate the transformation of businesses towards the development of e-ASEAN’.
This paper identifies and analyses the extent of the Malaysian government’s compliance with e-ASEAN principles particularly in the legal and regulatory aspects.
Keywords: electronic commerce, ASEAN.
I.
INTRODUCTION The information communication revolution has had a significant impact on the world today.
Computers and the Internet have become powerful tools permeating almost every area of modern living including making decisions on our behalf.
The tremendous spread of these facilities has influenced not only social well-being but also has major ramifications on the overall development of nations.
As in other countries, the use of ICT in Malaysia has contributed much to its development.
However, similar to any other technology, the many positive aspects of ICT also have their attendant downside risks.
While acknowledging the strategic importance of mailto:nazura@ukm.edu.my Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 2 Volume 2(S) No.
1 (2015) ICT as a driver to support and contribute directly to the growth of Malaysian economy, the government is aware that appropriate legal mechanisms are needed to monitor and manage this technology.
Thus, the Malaysian Multimedia Super Corridor project not only provides incentives for ICT development but also includes in its framework the necessary legislative and enforcement provisions.
II.
DEVELOPMENT OF ICT IN MALAYSIA Background In the early years following the independence in 1957, Malaysia focused its efforts on strengthening the agriculture-based economy through the development of its basic infrastructure particularly in rural areas.
After the riots of 1969, the New Economy Policy was formulated with its twin-pronged objective of eradicating poverty and restructuring Malaysia society to eliminate the identification of race with economic functions 1 .
During the 1980s, basic ICT infrastructure was developed in the form of basic telephony services to rural and urban area with the aim of increasing access to mobile and fixed-line services 2 .
Next, in 1991, Vision 2020 was formulated aimed at bringing Malaysia at par with developed countries by the year of 2020.
This vision was a turning point to transform Malaysia into a knowledge driven society in which ICT plays a major role.
Subsequently, the 8 th Malaysia Plan (2001-2005) included the introduction of a KEconomy and the potential growth of digital infrastructure.
The succeeding 9 th Malaysia Plan (2006-2010) incorporated the enhancement of ICT as one of its agenda involving the building of vital ICT infrastructures in the public and private domains.
The increased use of ICT infrastructure led to the need for national information security initiatives as reflected in the 1 Mudiarasan Kuppusamy and Bala Shanmugam, (2007) ‗Information Communication Technology and Economic Growth in Malaysia‘ 11(2) Review of Islamic Economics 89-90.
2 Mudiarasan Kuppusamy, Murali Raman, Geoffrey Lee, (2009) ‗Whose ICT Investment Matters to Economic Growth: Private or Public?
The Malaysian Perspective‘ 37(7) EJISDC 1-19, 5.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 3 Volume 2(S) No.
1 (2015) establishment of an emergency response centre to oversee the regulatory, technical, and security aspects of the internet 3 .
With this framework in place, Malaysia is well-prepared to introduce ICT into its everyday life through initiatives such as e-commerce, e-education, and e-health or telemedicine.
These strategic plans have produced increasing accessibility to the internet and its related services including wired and wireless technologies for enhancing broadband services throughout the country.
Competition in the telecommunication services is encouraged by allowing the entry of new players resulting in the proliferation of various products and services in the market and in more affordable internet services.
ICT connectivity was enhanced in 2000 when 33 pilot community-based Internet Centres were established nationwide of which 12 of them were in rural areas.
This was followed by additional thirty one Internet/ Information Centres developed throughout the country between 2001 until 2003 and 13 national pilot projects of the NITC Strategic Task Force conducted through a Public-Private Partnership model.
ICT development in the country was boosted with the implementation of the US$20 billion mega Multimedia Super Corridor project in Malaysia.
Multimedia Super Corridor Malaysia On 12 February 1996, the Multimedia Super Corridor was launched with the aim of accelerating the objectives of Vision 2020.
This MSC Malaysia project is an important program aimed at achieving the creation of knowledge based society.
Amongst the initiatives of this program is the formation of the MSC flagship which serves as a hub for players and users in the multimedia industry.
This mega project is fully supported by the Malaysian government and is a gateway to the ICT industry in Malaysia with the objective of attracting world class technology companies 3 Muhammad Jehangir, P.D.D Dominic, Naseebullah, Alamgir Khan, (2011) ‗Towards Digital Economy: The Development of ICT and e-Commerce in Malaysia‘ 5(2) Modern Applied Science 171 <www.ccsenet.org/mas>.
http://www.ccsenet.org/mas Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 4 Volume 2(S) No.
1 (2015) while preparing the local industry for the ICT age.
The companies that develop or use multimedia technologies to produce and enhance their products and services may be granted MSC Malaysia status and be located in any of the 26 cyber-cities and cyber-centres in Malaysia.
MSC status comes with some incentives, rights, and privileges accorded under the MSC Malaysia Bill of Guarantees.
It also underscores the assurance by Malaysia to be a regional leader in promoting intellectual property protection and adherence to cyber laws.
MSC Malaysia operates within an area of approximately 15 km (9.3 mi) by 50 km (31 mi) or about 750 km 2 (290 sq mi) starts from the Petronas Twin Towers in the city of Kuala Lumpur to the Kuala Lumpur International Airport in Sepang including the towns of Putrajaya and Cyberjaya.
The town of Port Klang was added to MSC Malaysia on 7 December 2006.
To oversee the coordinated and managed development of MSC Malaysia, the Multimedia Development Corporation (MDeC, formerly MDC) was established.
III.
ASEAN ICT INITIATIVE: e-ASEAN ASEAN was created in 1967 to promote regional cooperation among its member countries with the objective of (a) accelerating economic growth, social progress and cultural development and (b) promoting regional peace and stability in the region.
It currently has ten member countries, namely Brunei Darussalam, Cambodia, Indonesia, the Lao People‘s Democratic Republic, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Viet Nam.
Recognizing the potentials of ICT, ASEAN member countries endorsed the e-ASEAN initiative in 1999 based on the ASEAN Vision 2020 defined two years earlier.
Amongst others the vision seeks to create a stable, prosperous, and highly competitive ASEAN economic region that facilitates the free flow of goods, services, investments, and capital, as well as the promotion of equitable economic development and reducing poverty and socioeconomic disparities by the year 2020. http://en.wikipedia.org/wiki/Petronas_Towers http://en.wikipedia.org/wiki/Kuala_Lumpur_International_Airport http://en.wikipedia.org/wiki/Putrajaya http://en.wikipedia.org/wiki/Cyberjaya http://en.wikipedia.org/wiki/Port_Klang http://en.wikipedia.org/wiki/Multimedia_Development_Corporation http://en.wikipedia.org/wiki/Multimedia_Development_Corporation Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 5 Volume 2(S) No.
1 (2015) The Elements of e-ASEAN ASEAN views ICT as one of the economic key factors having a significant impact on enhancing competitiveness in other sectors of industry.
Accordingly, e-ASEAN was established in the Annual Summit Meeting of ASEAN leaders in Manila on 28 November 1999 and signed during the ASEAN Informal Summit in Singapore in November 2000 4 .
The primary objective of e-ASEAN is to develop a ‗broad-based and comprehensive action plan including physical, legal, logistical, social, and economic infrastructure needed to promote an ―ASEAN e-space” as part of an ASEAN positioning and branding strategy‘ 5 .
e-ASEAN Legal Framework The ASEAN Information Infrastructure (AII) under the aegis of the e-ASEAN Framework Agreement of November 2000 focuses on the hardware and software systems needed to access, process, and share information, as well as to promote the growth of electronic commerce in the region.
Towards this end, ASEAN countries are required to adopt electronic commerce regulatory and legislative frameworks that will promote trust and confidence for technology users.
Under the agreement, the member states are required to: a. Expeditiously put in place national laws and policies relating to electronic commerce transactions based on international norms; b.
Facilitate the establishment of mutual recognition of digital signature frameworks; c. Facilitate secure regional electronic transactions, payments and settlements, through mechanisms such as electronic payment gateways; d. Adopt measures to protect intellectual property rights arising from e-commerce.
Member states should consider adoption of the World Intellectual Property Organization (WIPO) 4 Samtani Anil, (2001) ‗Electronic Commerce in Asia: The Legal, Regulatory and Policy Issues‘ 9(2) Int.
J Law Info Tech 93 5 Rodolfo Noel S. Quimbo, (2012) ‗The e-ASEAN Legal Framework and Its Challenges‘ Harmonized development of legal and regulatory systems for e-commerce in Asia and the Pacific: Current challenges and capacity-building needs, 81-83.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 6 Volume 2(S) No.
1 (2015) treaties, namely: ‗WIPO Copyright Treaty 1996‘ and ‗WIPO Performances and Phonograms Treaty 1996‘; e. Take measures to promote personal data protection and consumer privacy; and f. Encourage the use of alternative dispute resolution (ADR) mechanisms for online transactions.
The implementation of the e-ASEAN Framework Agreement is to be achieved via a series of measures outlined in the Roadmap for Integration of the e-ASEAN Sector (the eASEAN Roadmap).
The two key targets in the roadmap are: a.
Measure 78: Enact domestic legislation to provide legal recognition of electronic transactions (i.e., cyber laws) based on common reference frameworks.
b.
Review of e-commerce legislation harmonization in ASEAN resulting in 8 out of 10 countries having e-commerce legislation by the end of the project in 2009.
However, at the end of the project, Cambodia and the Lao People‘s Democratic Republic had still not passed electronic transaction legislation.
IV.
THE MALAYSIAN PERSPECTIVE Law and Regulatory Framework Laws relating to ICT have been in place in Malaysia even prior to the formulation of the e-ASEAN initiative.
The launching of MSC Malaysia in 1996 saw the introduction of four cyber laws namely the Computer Crime Act 1997, the Digital Signature Act 1997, the Telemedicine Act 1997, and the Copyright Act 1987 (Amendment Act in 1997).
The purpose of these Acts is to foster the development of ICT systems and to address issues of threats and abuses arising from their employment.
ICT related laws were strengthened by the inclusion of four other legislations namely the Communication and Multimedia Act 1998, Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 7 Volume 2(S) No.
1 (2015) the Electronic Commerce Act 2006, the Electronic Government Activities Act 2007, and the recent Personal Data Protection Act 2010.
Along with specific legislation for ICT-related issues, existing laws can also be used to provide that the matters involved fall within the legal elements provided in the traditional statutes.
For example the application of the Computer Crimes Act 1997 and the Electronic Commerce Act 2006 are supported by the respective parent Penal Code and the Contract Act 1950.
Conformity of e-ASEAN Obligation by Malaysian Legal Framework: An Analysis The rapid developments in ICT have posed huge challenges to legislators in instituting effective legal mechanisms aimed at protecting users of the technology; despite that the Malaysian government has been proactive in ensuring that necessary legislations are in place for that purpose.
It can be said that with its wide range of cyber laws, Malaysia as a member state of ASEAN and in particular a signatory of e-ASEAN, has fulfilled the obligations required under the e-ASEAN Framework Agreement.
ICT opens up new and sophisticated opportunities for criminal acts and the potential to commit conventional crimes in non-traditional ways, cyber-crime being the foremost and most obvious among them.
The enactment of the CCA 1997 is seen as a means to combat such cybercrimes; where any unauthorised access/ modification to any programme or data in a computer is deemed an offence subject to penalties.
The anonymity provided by cyber space makes it necessary for additional and more robust security protections to be put in place.
In line with this, the Digital Signature Act 1997 was enacted to provide the security and confidence that would encourage the public to perform electronic transactions domestically and internationally.
Under the Act, the digital signature provides a verification system to authenticate the identity of the author and verify the transmitted message.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 8 Volume 2(S) No.
1 (2015) Being one of the seven flagships in the MSC Malaysia, telemedicine or tele-health activities require attention to ensure proper protection.
For this purpose, the Telemedicine Act 1997 was enacted to provide the regulatory framework governing the practice of telemedicine and to recognise the use of multimedia in the medical field.
The digital element of ICT allows easy unauthorised copying and pasting primarily on the internet.
The Copyright Act 1987 was amended in 1996 and 1997 to address this issue by extending copyright protection to internet transactions.
The amendments took into account the developments in information technology particularly those related to copyrights covered by the World Intellectual Property Ownership (WIPO) Copyright Treaty 1996.
The scope of copyright protection has been broadened to include the provision of exclusive rights of control to authors.
New copyright infringements and offences have been identified and regulated under this Act 6 .
The convergence of the three major technologies of telecommunications, broadcasting, and information resulted in the enactment of the Communication and Multimedia Act 1998.
This Act covers communications over the electronic media and does not affect the application of existing laws on national security, illegal content, defamation, and copyright.
It regulates various activities covering network facilities and service providers, application service providers, and content application services providers.
This Act empowers the minister to grant licenses for particular types of activities deemed fit and the flexibility to address the changing requirements as the industry evolves.
The easy access to the internet services in Malaysia has encouraged the extensive use of e-commerce transactions by both large companies and small scale enterprises.
Legal disputes arising out of such contractual transactions may be handled through the Electronic Commerce Act 2006 for resolution.
This Act provides legal recognition of electronic messages in 6 Nazura Abdul Manap et al, (2013), ‗The Influence Of e-Asean In The Development Of ICT Law In Malaysia‘ 8(5) Internal Journal of Soft Computing 377-380.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 9 Volume 2(S) No.
1 (2015) commercial transactions, the use of the electronic messages to fulfil legal requirements and to facilitate commercial transactions through the use of electronic means, and other related matters.
Electronic communication within the public sector as well as between the government and citizens requires a comprehensive legal framework to ensure efficient and secure electronic government services.
For this purpose, the Electronic Government Activities Act (EGAA) 2007 which came into effect on 1 January 2008 can be applied to agencies handling electronic dealings.
It does not grant any additional legal rights or change any substantive laws.
The above account demonstrates that Malaysia has met the provisions agreed upon in the e-ASEAN Agreement.
However, such legislation, no matter how comprehensive, requires appropriate and serious commitment in their implementation especially with regard to enforcement.
V. PROTECTING ELECTRONIC COMMERCE ACTIVITIES IN MALAYSIA Based on the combination of the Electronic Commerce Act 2006 and the Electronic Government Activities Act 2007, Malaysia has introduced a raft of comprehensive e-commerce laws.
With the enactment of the Personal Data Protection Act in 2010, Malaysia also became the first ASEAN member country to pass privacy legislation.
In addition, the government believes that updating of some provisions of its e-commerce legislation may be necessary owing to the constantly evolving technological changes and the emergence of social networking and mobile applications.
Malaysia had a very high number of mobile subscriptions at 127 per 100 inhabitants in 2011 and is also equipped with a moderate level of fixed broadband connectivity.
Overall Internet use in Malaysia stood at 61 per cent of the population in 2011, one of the highest in the region.
Electronic Transactions Laws Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 10 Volume 2(S) No.
1 (2015) The Electronic Commerce Act 2006 and the Electronic Government Activities Act 2007 are the key regulations governing e-commerce in the private and public sectors respectively.
The former closely mirrors the precepts of the United Nations Electronic Communications Convention.
Malaysia also has the Digital Signature Act 1997 specifically enacted for legislation for that purpose.
Its legal framework was subsequently strengthened to encourage future use via amendments in 2001.
In addition, the Electronic Commerce Act 2006 contains broad technology-neutral provisions on electronic signatures.
Consumer Protection The Consumer Protection Act 1999 is a general piece of consumer legislation in Malaysia that protects consumers against a range of unfair practices and enforces minimum product standards.
The amendments were introduced in 2007 and 2010 to widen its scope to cover electronic commerce transactions, and to introduce, among others, a new provision on general safety requirement for services.
The amendments also provide protection to consumers from unfair terms in a standard form contract respectively.
Malaysia also introduced the Consumer Protection (Electronic Trade Transactions) Regulations 2012, enforced in 2013.
These regulations impose certain obligations on online traders and online marketplace operators.
It seeks to promote consumer confidence in shopping and trading as a means to further spur the growth of e-commerce in the country.
There are also some limited consumer provisions incorporated in part 8 of the Communications and Multimedia Act 1998 which deal with the relationship between consumers and licensees and applies regardless of whether the transaction is electronic or not.
Subsection 188(1) requires all licensed service providers to deal reasonably with consumers and adequately address consumer complaints.
Part 8 of the Act also includes a voluntary consumer protection Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 11 Volume 2(S) No.
1 (2015) code covering the provision of information to consumers and the handling of personal information and complaints.
Privacy and Data Protection The Personal Data Protection Act 2010 governs the private sector and does not include government agencies.
It closely mirrors the principles in the European Union directive although some variations appear to adopt parts of the APEC Privacy Framework.
However, the Act does not contain any European Union style registration requirements.
To facilitate the implementation of Malaysia‘s Personal Data Protection Act which came into force on 1 January 2013, the Personal Data Protection Department was established.
Online Content Regulation The Communications and Multimedia Act 1998 established the Malaysian Communications and Multimedia Commission (MCMC) which is empowered to regulate ICT industries.
Broad authority has been provided by the Act to the commission to regulate online speech in which ―no content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten, or harass any person‖.
Thus, publishers of media content who violate this provision are subject to criminal penalties.
The Act also included the establishment of the Communications and Multimedia Content Forum of Malaysia which formulates and implements the Content Code—a set of voluntary guidelines for content providers on the handling of content considered offensive or indecent.
In general, the Malaysian government has pledged not to censor the Internet and there are no indications of technological filtering of the medium in the country.
However, existing government controls over the traditional media sometimes extend into the Internet resulting in self-censorship and the occasional investigation of bloggers and online commentators.
Cybercrime and Cyber Security Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 12 Volume 2(S) No.
1 (2015) Various sections of the Computer Crimes Act 1997 prohibit the following categories of activities related to unauthorized entry into computer systems: a.
Section 3: acts committed with intent to secure unauthorized access to programs or data stored in any computer; b.
Section 4: acts committed with intent to secure unauthorized access to programs or data stored in any computer to commit an offence involving fraud or dishonesty; c. Section 5: acts committed with the knowledge that they will cause unauthorized modification of the contents of any computer; d. Section 6: wrongful communication of any password, code, or means of access to a computer to any person not authorized to receive the same.
These provisions are more related to computer crimes than cybercrimes.
However, the provisions as found in e-commerce laws and copyright laws are updated and amended in 2012.
It complements Malaysia‘s cybercrime legislation and makes them more aligned with international standards.
Online Dispute Resolution and Domain-Name Regulation Three sections have been incorporated into Malaysia‘s Communication and Multimedia Act 1998 to address issues related the regulation of domain names.
Section 179 specifies that the MCMC is responsible for the planning, control, and administration of electronic addresses or domain names.
Section 180 empowers the MCMC with developing a numbering and electronic addressing plan that includes the formulation of rules for assigning and transferring such addresses.
Furthermore, the functions contained in sections 179–181 appear to be delegated to MYNIC—the registrar of Malaysia‘s country code top-level domain (ccTLD).
In addition to being the registrar, MYNIC is the registry and administrator of the .my domain.
VI.
CONCLUSION Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 13 Volume 2(S) No.
1 (2015) The ASEAN initiative to apply uniform standards for ICT implementation throughout the ASEAN region is a useful idea as it will provide member countries the opportunity to benefit from the current ICT regime without neglecting the need to regulate the use of technologies.
Although some countries such as Malaysia have adopted relevant laws to ensure the secure and effective use of ICT, the effectiveness of enforcement will remain an issue to be overcome with no or limited cooperation from the member countries.
In a borderless electronic world, ASEAN member countries cannot confine themselves within the region.
Thus, it is important to seek outside assistance and learn lessons from both within and outside the region.
REFERENCES Abdul Manap, Nazura, et al, (2013) ‗The Influence Of e-Asean in The Development of ICT Law in Malaysia‘ Internal Journal of Soft Computing.
Anil, Samtani, (2001) ‗Electronic Commerce in Asia: The Legal, Regulatory and Policy Issues‘ Int.
J Law Info Tech.
Jehangir, Muhammad, P.D.D Dominic, Naseebullah, Alamgir Khan, (2011) ‗Towards Digital Economy: The Development of ICT and E-Commerce in Malaysia‘ 5(2) Modern Applied Science, <www.ccsenet.org/mas> Kuppusamy, Mudiarasan, Murali Raman, Geoffrey Lee, (2009) ‗Whose ICT Investment Matters to Economic Growth: Private Or Public?
The Malaysian Perspective‘ EJISDC.
Kuppusamy, Mudiarasan and Bala Shanmugam, (2007) ‗Information Communication Technology and Economic Growth in Malaysia‘ 11(2) Review of Islamic Economics.
‗Review of e-Commerce Legislation Harmonization in ASEAN‘ (2013) United Nations Conference on Trade and Development (UNCTAD).
Rodolfo Noel S. Quimbo, (2012) ‗The e-ASEAN Legal Framework and Its Challenges‘ Harmonized Development of Legal and Regulatory Systems for e-Commerce in Asia and the Pacific: Current Challenges and Capacity-Building Needs.
http://www.ccsenet.org/mas
Microsoft Word 8.
Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia Legal and Technical Perspective 108 | DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.08 Governing Blockchain-Based Token in Indonesia: Legal and Technical Perspective Wahyu Yun Santoso a, Araya Anggara Putrab, Jonathan Hendson Passagic, Yoda Rifky Hanindyad, Annisa Azura Tagare aCenter for Law, Technology, RegTech & LegalTech Studies / Universitas Gadjah Mada Email: wahyu.yuns@ugm.ac.id bCenter for Law, Technology, RegTech & LegalTech Studies / Universitas Gadjah Mada Email: araya.anggara.p@ugm.ac.id cCenter for Law, Technology, RegTech & LegalTech Studies / Universitas Gadjah Mada Email: jonathan.hendson.p@ugm.ac.id dCenter for Law, Technology, RegTech & LegalTech Studies / Universitas Gadjah Mada Email: yoda.rifky.h@ugm.ac.id eCenter for Law, Technology, RegTech & LegalTech Studies / Universitas Gadjah Mada Email: annisa.azura@ugm.ac.id Submitted : 2019-12-15 | Accepted : 2020-04-13 Abstract: In the past decade, blockchain technology has caught the world's attention because of its disruptive nature in various industries.
Along with blockchain adoption, blockchain-based token, or more popularly known as the "token," is widely used as a representation of a particular asset.
In its development, blockchain innovators continue to encourage the birth of new tokens with more diverse attribution.
From the regulator's point of view, the above gave rise to problems in the formation of regulations relating to tokens, mainly on its legality, whether token will determine as currency, securities, or commodity.
If regulations still cannot catch up with the gap of technological advancement, this will hinder the development of blockchain technology in Indonesia.
The token regulatory framework has designed in several countries that have provided precise distinguishing characteristics for each type of token.
However, in Indonesia, the absence of a clear and distinct definition of the types of tokens creates legal uncertainty for stakeholders.
Therefore, this paper aims to give clarity to the legality of Blockchain-based tokens in Indonesia.
Keywords: law; blockchain; token; financial technology; Indonesia.
I.
INTRODUCTION In the past decade, blockchain technology has caught the world's attention 1 Ito, J., Narula, N. and Ali, R. ‘The Blockchain will do to the Financial System What the Internet Did to Media’, Harvard Business Review, 2017.
<https://hbr.org/2017 /03/the-blockchain-will-dobecause of its disruptive nature in various industries.1 This technology has recognized as the Fourth Industrial Revolution digital to-banks-and-law-firms-what-the-internet-did-tomedia?re ferral=03758&cm_vc=rr_item_page.top_right>, accessed April 2 2019.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 109 wave drive2, blockchain has believed to bring breakthroughs to conventional financial, legal, and social patrons in 2025 3 .
Blockchain's popularity was initiated by the presence of the Bitcoin digital currency in 2009 4 , in its development, Blockchain presents technological innovations that wider, not only limited to virtual currency.5 One monumental innovation is the blockchainbased token, or more popularly known as the "token".
The description of tokens is not far from the literal definition, namely as "sign".6 Tokens are used as a "sign" on something digitally such as fiat money, coupons, smart property.
7 This has intended to make the scarcity of digital assets in the blockchain.8 Ownership of these assets has broken down into token tokens.
Besides the asset classes chosen, the use of tokens has practically applied in various use cases, including data management, intellectual property, and capital markets.9 The open-source blockchain technology continues to encourage the birth of new tokens with more diverse attribution.
It has proven by the number of tokens, which in recent times has increased, not only limited to the number but also the complexity of how 2 Klaus Schwab, The Fourth Industrial Revolution, (World Economic Forum, Geneva, 2016), 23.
3 Ibid, page 143.
4 Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, <https://bitcoin.org/bitcoin.pdf>, accessed April 1 2019.
5 Kaspars Zile and Renāte Strazdiņa, ‘Blockchain Use Cases and Their Feasibility’, (2018) 23(1) De Gruyter Open: Applied Computer Systems, ISSN 2255-8691 (online) ISSN 2255-8683 (print), doi: 10.2478/acss-2018-0002, 15.
6 Merriam-Webster, Defintion of token, <https://www.merriamwebster.com/dictionary/token>, acessed April 3 2019.
7 Vitalik Buterin, Ethereum Whitepaper, <http://blockchainlab.com/pdf/Ethereum_white_p apera_next_generation_smart_contract_and_decentral ized_application_platform-vitalik-buterin.pdf.>, accessed April 2 2019.
8 G. Miscione, R. Ziolkowski, L. Zavolokina, and G. Schwabe, 2018, ‘Tribal Governance: The Business of Blockchain Authentication’, (51st Hawaii International Conference on System Sciences (HICSS 2018) University of Hawai'i at Manoa the token has designed.
From the regulator's point of view, the above gave rise to problems in the formation of regulations relating to tokens.
On the other hand, if regulations still cannot catch up with the gap of renewable technology, this will hinder the perpetrators of technology.
According to Deloitte's 2018 global blockchain survey, 39% of respondents said the regulatory issue was a major obstacle to the development of blockchain technology in various sectors.10 Even worse, the regulator cannot present a legal umbrella in the event of excesses from the use of this technology.
The token regulatory framework has designed in several countries such as Singapore11, UK12, and Switzerland,13 which have provided clear distinguishing characteristics for each type of token.
The terminology of the type of token used by each country varies, such as payment tokens, which have interpreted as virtual currency/cryptocurrency and token utilities that have equated with.
However, in general, the token taxonomy regulatory framework distinguishes it into 3 (three) classifications: payment of tokens/ cryptocurrency, utility tokens, and tokenized security.
14 In Indonesia, the existence of each type of token 2018-01-03 Hawaii, USA conference 51st Hawaii International Conference on System Sciences (HICSS 2018) ISBN: 978-0-9981331-1-9 In Proceeding).
9 Kaspars Zile and Renāte Strazdiņa, above n 5.
10 Deloitte, Breaking blockchain open: Deloitte’s 2018 global survey, <https://www2.deloitte.com/content/dam/Deloitte /us/Documents/financial-services/us-fsi-2018global-blockchain-survey-report.pdf.>, accessed 1 April 2019.
11 Money Authority of Singapore Guide to Digital Token Offerings.
12 Financial Conduct Authority United Kingdom, Guidance on Cryptoassets Consultation Paper CP19/3, <https://cdn.crowdfundinsider.com/wpcontent/uploads/2019/01/FCA-ConsultationGuidance-on-Cryptoassets-cp19-03.pdf>, accessed 2 April 2019.
13 Swiss Financial Market Supervisory Authority Guidelins for Enquiries Regarding The Regulatory Framework for Initial Coin Offerings.
14 Luis Oliveira, et.al., ‘To Token or not to Token: Tools for Understanding Blockchain Tokens’, (International Conference of Information Systems (ICIS 2018), San Francisco, USA, 12 December Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 110 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… creates different legal consequences concerning securities law and overlapping governance.
In responding to this matter, of course, the formation of legal instruments contributes in a comprehensive way to differentiate the types of tokens separately.
In Indonesia, several arrangements address the existence of tokens.
The prohibition on the use of virtual currencies in this context is equated with the terminology of payment tokens as a payment instrument embodied in Bank Indonesia Regulation 18/40/PBI/2016 concerning Implementation of Payment Transaction Processing ("PBI 18/2016") and Bank Indonesia Regulation 19/12/PBI/2017 concerning the Implementation of Financial Technology ("PBI 19/2017").
For the use of tokens in the financial sector, this has regulated by the Financial Services Authority Regulation 13/POJK.02/2018 concerning Digital Financial Innovation in the Financial Services Sector ("POJK 13/2018").
In terms of token trading, based on the Regulation of Minister of Trade Number 99 the Year 2018 concerning General Policy for Futures Trading of Crypto Asset which raises "crypto-asset" as a commodity in Indonesia, there has been an Indonesia Commodity Futures Trading Supervisory Body (“BAPPEBTI”) Regulation Number 5 the Year 2019 concerning Technical Provision of The Crypto Asset Physical Market in Futures Exchange (“BAPPEBTI Regulation 5/2019”) explicitly generalizes tokens as one of the Crypto Asset forms which made as derivative of the coin.
15 The existence of several arrangements above has shown how Indonesian legal politics address the existence of tokens in Indonesia.
However, the absence of a clear and distinct definition of the types of tokens creates legal uncertainty for stakeholders.
2018 16 December 2018), https://doi.org/10.5167/uzh-157908, 9.
15 Article 1 (13) Indonesia Commodity Futures Trading Supervisory Body Regulation Number 5 Year 2019 concerning Technical Provision of The Crypto Asset Physical Market in Futures Exchange.
16 Article 6 (b) Law Of The Republic Of Indonesia Number 21 Year 2011 Concerning Financial For example, if several business actors trade tokens with tokenized security characteristics, then with an effect basis, of course, this is the authority of the Financial Services Authority to supervise them.
16 However, in the BAPPEBTI Regulation 5/2019 that generalizes the definition of tokens as Crypto Asset will result in the overlapping authority of the two institutions in overseeing the existence of tokenized security.
Also, it relates to the definition of tokens contained in the BAPPEBTI Regulation 5/2019 defining tokens as derivatives of the coin.
The distinction in BAPPEBTI Regulation 5/2019 directly separates token and coin in a subordinate relationship.
From a technical and practical perspective, “token” and “coin” are the same things because both can stand on their blockchain configuration, but on a case-bycase basis, they also can be distinguished by their characteristics–which are not always having a mutually exclusive feature.
There is a possibility that both coin and token are a unit, which by The Swiss Financial Market Supervisory Authority (FINMA) has known as “hybrid token”.17 On the other hand, reflecting on the token arrangement in the US, the existence of a token type differentiating legal instrument also has the potential to present new problems.
At present, the US generalizes all types of tokens that are issued as "digital assets" and must meet securities law obligations.
After that, in December 2018, the US congress filed Bill H.R 7356 to form a special arrangement for the taxonomy of tokens through the Taxonomy Act Token.
In the Token Taxonomy Act draft, the US excludes the token utility as part of securities.18 Making explicit exceptions is a very dangerous form of policy because it would allow any "digital assets" that meet the basic technical standards above to fully Services Authority State Gazette Of The Republic Of Indonesia Number 5253.
17 Swiss Financial Market Supervisory Authority Guidelins for Enquiries Regarding The Regulatory Framework for Initial Coin Offerings, page 2.
18 US Congress, H.R.7356-Token Taxonomy Act, <https://www.congress.gov/bill/115thcongress/house-bill/7356/text>, accessed 1 Apri 2019.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 111 exclude from compliance as securities obligations and related investor protection.
Departing from the above issues, the establishment of legal instruments that specifically regulate the taxonomy of tokens in Indonesia becomes urgent.
For blockchain-based tokens to unfold their full potential about reinventing ownership in the digital realm, the technology needs to recognized as a legalized system capable of creating an objectively new ontological category.
A new kind of thing that deserves its regulatory framework that reflects the unique affordances and constraints of blockchain technology.
There is an urgency to examine how the ideal taxonomy of blockchain-based tokens is regulated in other countries comprehensively in terms of juridical and technical aspects.
Also, it should underline the legal problems arising in regards to the status quo of blockchainbased token regulation in Indonesia II.
LEGAL MATERIALS AND METHODS This research is a combination of normative and empirical legal research.
Normative legal research process to find legal rules, legal principles, and the doctrine of the law to address the legal issues at hand.19 Meanwhile, empirical research could define as research based on experimentation or observation (evidence).
20 The research would not only comprise the theory, and legal principles, however, the research also would like to formulate suitable approaches to close the gap between existing national regulation and the unregulated environment of blockchain.
19 Theresia Anita Christiani.
‘Normative and Empirical Research Methods: Their Usefulness and Relevance in the Study of Law as an Object’, (3rd Global Conference on Business and Social Sciences-2015) (2016) 219 Procedia Social and Behavorial Sciences, doi: 10.1016/j.sbspro.2016.05.006, <https://www.sciencedirect.com/science/article/pi i/S1877042816300660>, 202.
20 Ibid.
21 Perianne Boring and Amy Davine Kim, ‘Understanding Digital Tokens: Market Overviews and Proposed Guidelines for III.
RESULT AND DISCUSSION Property Law The token has defined as units that are transferable that generated within a distributed network that the ownership of the units can track through the application of blockchain technology.
21 Token may represent rights to an asset, payment or benefit, or could exchange for goods and services.22 However, due to its novelty, the Token itself still has no legal certainty whether it is a property or not, hence for Token to have legal certainty, we shall define Token as a property that may represent rights.
In the full Article 499 of the Indonesian Civil Law Code states, “The law interprets as objects all goods and rights which can be the subject of property”.
Whereas, from the aforementioned provision it can be interpreted that objects can be in the form of tangible goods and intangible goods.
Aside from an economic perspective, the underlying purpose to define Token as a property is for a token to can be categorized as a commodity along with its legal certainty, so Indonesian investors or Token owners have a clear basis for them to hold the ownership of Token.
As a commodity, Token has the opportunity to be traded in futures trading due to high liquidity and market volatility, but beforehand it needs to be legally declared as a commodity and meet the requirements set by BAPPEBTI.
23 As a property, Token could give the legitimacy of ownership, namely ownership rights.24 Ownership rights can obtain through the transference of Token.
In which, the Token transfer has several ways that have mentioned in the Elucidation of Article 8 (2) Bank Indonesia Regulation Policymakers and Practitioners’, Token alliance <https://digitalchamber.org/token-alliancepaper/> 22 LPEA Young PE Leaders Legal, ‘Security Tokens – Legal Aspects’, Paper, Luxembourg Private Equity & Venture Capital Association, Luxembourg.
23 Anissa Rahma Diasti, ‘The Legal Standing Bitcoin as A Commodity and Chance of Bitcoin as A Commodity upon Futures Trading in Indonesia’, Undergraduate Thesis, Universitas Gadjah Mada, Yogyakarta, p. ix.
24 Article 28 of the Civil Code.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 112 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… 19/12/PBI/2017 concerning the Implementation of Financial Technology (“PBI 19/2017”) that mention the transfer of Virtual Currency could be done through mining, purchasing, or rewarding and in the Elucidation of Article 34 (a) Bank Indonesia Regulation 18/40/PBI/2016 concerning Implementation of Payment Transaction Processing ("PBI 18/2016") mention several examples of Virtual Currency.
As explained above, we determine Virtual Currency as apart of Token archetypes.
Therefore, the aforementioned definition of Virtual Currency could used as a basis to analyze how Token can transfer, namely, purchasing or rewarding.
However, there are still no certain provisions that regulate specifically regarding the movability of Token whereas there is another perspective which states that the activities, which closely related to cryptocurrency are mining/staking, transacting, trading, and providing services.25 In this manner, we also indicate that in the future, there is still room for the development of the Token transfer mechanism.
Hence, those issues will be discussed below in an orderly manner.
First, we analyzed the Token according to its form and its movability.
Second, we analyzed the way in obtaining Token ownership rights.
According to the definition of property stipulated in Article 499 of the Civil Code, property (zaak) is used in two meanings, namely first in the sense of tangible goods, the second is in the knowledge of intangible goods.
Meaning that property (zaak) in the Civil Code perspective is not only tangible properties (goed) but also includes the understanding of intangible properties.26 In line with the Civil Code, Subekti stipulates the broadest definition of property (zaak) as anything that can be entitled to a person.
Meanwhile, in the narrow sense, the property is interpreted as objects that have an 25 Dimaz Ankaa Wijaya, Dony Ariadi Suwarsono, Cryptaxforensic, when Cryptocurrency, Taxation, and Digital Forensic Collide: An Overview of Indonesian Cryptocurrency Market.
26 Ibid, 14.
27 Rachmadi Usman, Hukum Hak Atas Kekayaan Intelektual, (PT Alumni, Bandung, 2003), 51. appearance, can be seen, and hold.
Rahmadi Usman also mentioned the definitions of properties, in which properties could interpret into three.
Those are as follows:27 1.
Properties in a broad sense are all things that can be entitled to a person; 2.
Properties in the narrow sense are objects which can be seen by the senses only; 3.
Properties as legal objects.
According to Subekti’s perspective, properties can be in a form of tangible properties and intangible properties, which also stipulated in Article 503 of the Civil Code.
Whereas, referring to Rahmadi Usman’s interpretation of properties, tangible and intangible properties, are properties in broad sense, meanwhile in a narrow sense only tangible property that can be classified as properties.
Tangible properties are the property that can be captured with the five senses, which can also be interpreted as someone’s wealth.28 If the word “property” is used in the sense of someone's wealth, it includes intangible properties that are not visible and cannot be captured with five senses29 that include rights, for example, the right to receivables or billing.30 The token can be categorized as an intangible property because Token meet the characteristics of an intangible property that is digital in its form without having any physical shape.
31 In advance, BAPPEBTI governs Crypto Assets as an intangible property, in which Crypto assets are intangible commodities in the form of digital assets, using cryptography, peer-to-peer networks, and distributed ledgers, to manage the creation of new units, verify transactions, and secure transactions without interference from other parties.
32 According to the determination of Crypto Asset by BAPPEBTI Token as one of the Crypto Asset has known as an intangible commodity.
This 28 Subekti, Pokok-Pokok Hukum Perdata, (Intermasa, Jakarta, 1984), 60.
29 Anissa Rahma Diasti, above n 23, 46.
30 Sri Soedewi Masjchoen Sofwan, Hukum Perdata: Hukum benda, (Liberty, Yogyakarta, 1981).
31 Anissa Rahma Diasti, above n. 23, 46.
32 BAPPEBTI Regulation No.
5 Year 2019, Article 1 (7) Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 113 is because Tokens have created by developers that are used in the blockchain system.
Blockchain itself is a system that records all the digital transactions made with Token.33 Hence, Token is impossible to be captured by five senses.
Even though Token has no physical form, it can still be considered as property because the scope of property is not limited only to tangible properties that can be captured by five senses but also include intangible properties such as Token.
Other than the classifications of property according to its form, the property can also be divided based on its movability, namely movable and immovable properties concerning Article 504 of the Civil Code.
Movable properties are property that, according to its nature, could move, which regulated under Article 505 of the Civil Code.
In full the Article stipulates that: “Movable properties by their nature are those which are movable or can be moved”.
The token is constituted as movable properties concerning Article 505 of the Civil Code, where Token is movable or can be moved.
However, the movement of Token is conducted digitally through the internet within the blockchain.
Therefore, it could understand that Token is an intangible property that is movable or could move through the utilization of the internet.
Whereas the movability of Token has performed through the blockchain system, the blockchain system is a network formed by nodes or also known as “Miners” that conduct transactions and validate it by demonstrating a Proof-ofWork is a form of adding a block.34 A block is an encrypted collection of the transactions which acts as a guarantee whether or not the transactions have been executed and verified.
Each block records the transactions as well as the associated related data.
The transactions are protected by “digital signature”, which 33 TechTerms, Blockchain, <https://techterms.com/definition/blockchain>, Accessed 21 September 2019.
34 Gupta, Suyash & Sadoghi, Mohammad.
(2018).
Blockchain Transaction Processing.
10.1007/9783-319-63962-8_333-1.
35 Gupta, Suyash & Sadoghi, Mohammad, above n 34. has sent to the “public key,” of the receiver and digitally signed using “private key” whereas every transaction conducted, the user has to prove the ownership of the “private key”.
Thus, every new block created will be added to the existing chain of the block which associated one block to another.
35 Moreover, each blockchain data structure consists of a “hash”-linked chain of blocks36 which needed to solve a blockchain computation and to prevent double-spending to happen.37 To understand the mechanism of the blockchain system, hence the process will be illustrated in the figure below.
Figure 1.
The role of digital signature in blockchain transaction38 The figure above shows the transaction process in one of the Token protocols, Proofof-Work (PoW).
In PoW, the user who sends Token also signs a hash from the previous transaction.
After signing, the public key of the user receiving the coins has added at the end of the transaction.
The recipient also participates in verifying the signature to prove the chain of ownership of the Token beforehand.
This scheme is in line with the definition of "electronic coin," in this paper it has likened to a Token that is, "a chain of digital signatures".
39 As for Miner, The Miner ensures that there is no "double-spent" an event where the Token switches more than 36 Morrissey, Erin, Breaking Down the Blockchain, <https://medium.com/capital-one-tech/breakingdown-the-blockchain-f4b87422481b>, Accessed 2 October 2019.
37 Frankenfield, Jake, Hash, <https://www.investopedia.com/terms/h/hash.asp >, Accessed 2 October 2019.
38 Satoshi Nakamoto, above n 4, 2.
39 Ibid.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 114 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… once in a transaction.40 This event provides an opportunity for Token owners to duplicate transactions on Tokens.
By referring to Article 499 of the Civil Code, a property requires that it can possess through ownership rights.
In which, ownership rights in the legal order of properties have also known as eigendom rights.
Token falls under property because it could own by a person or party.
In which, a person or party could prove of owning Token after verifying the digital signature in the blockchain system.
The receiving party of the digital currency then verifies the digital signature, which implies the ownership of several “private key”, by using the “public key” of the sender on the respective transaction.
For example, in insurance, assets that are uniquely identified by one or more identifiers and difficult to be destroyed or replicated can be registered in the blockchain.
Thus, it can be used as proof to verify the ownership of an asset.
Token represents a property in the digital world 41 that is obtained and stored electronically.
The ownership rights can be transferred to another person or party whereas as mentioned under the BI Regulations, in full, the Elucidation of Article 8 (2) PBI 10/9/2017 states that: Elucidation of Article 8 (2) "Virtual currency" is digital money issued by parties other than monetary authorities obtained by mining, purchasing, or transfer of gifts (rewards).
Prohibition of carrying out payment system activities using virtual currency because virtual currency is not a legal payment instrument in Indonesia.” This definition of virtual currency also stipulated in the Elucidation of Article 34 (a) PBI 19/2017, which states that: 40 Pilkington, Marc, ‘11 Blockchain technology: principles and applications.’ (2016) 225 Research handbook on digital transformations, 252.
41 Tim Weingärtner, Tokenization of physical assets and the impact of IoT and AI, (Lucerne University of Applied Sciences & Arts – School for Information Technology, Lucerne).
42 Press released, Bank Indonesia Memperingatkan Kepada Seluruh Pihak Agar Tidak Menjual, Elucidation of Article 34 (a) "Virtual currency" is digital money issued by parties other than monetary authorities obtained by mining, purchasing, or transfer of gifts (rewards) including Bitcoin, BlackCoin, Dash, Dogecoin, Litecoin, Namecoin, Nxt, Peercoin, Primecoin, Ripple, and Ven.
Which not included in the definition of virtual currency is money electronic.” About the abovementioned articles of the BI Regulations, BI has mentioned several methods of virtual currency movability, which are through: (1) mining; (2) purchasing; or (3) transfer of gifts (rewards).
Whereas according to Article 8 (2), BI prohibits the use of Token for the payment method in which Token is still not considered as a legal payment in Indonesia.
In line with that, through the press release, BI clearly stated that Virtual Currency including Bitcoin, has not recognized as a legal payment instrument, therefore it is prohibited to be used as a payment instrument in Indonesia.
42 It needs to underlined tha t virtual currency is not illegal, however only the transaction that is prohibited.
This prohibition through BI Regulations aims to implement the precautionary principle, control the risk, and protect the users.
43 Meanwhile, in Article 34 (a), it mentioned the examples of virtual currency which currently exists.
According to Sri Soedewi Masjchoen Sofwan, there are several characteristics of ownership rights, namely as follows: 44 1. ownership rights are the parent rights to other property rights 2. ownership rights are the most complete rights Membeli atau Memperdagangkan Virtual Currency, 43 Tito Sianipar, “Bitcoin dilarang otoritas keuangan Indonesia, ini fakta-faktanya”, https://www.bbc.com/indonesia/indonesia42265038, Accessed 21 September 2019.
44 Sri Soedewi Masjchoen Sofwan, above n. 30, 48.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 115 3. ownership rights are permanent, meaning that they will not disappear from other property rights 4. ownership rights are the essence of other objects.
Ownership rights are regulated specifically under Article 570 of the Civil Code, which stated that: “Ownership is the right to have free enjoyment of property and to dispose thereof absolutely, provided that an individual does not violate the laws of the public ordinances stipulated by those who have been granted authority to do so, in the course of using such properties, and provided that an individual does not interfere with other individuals rights; the aforementioned shall be without prejudice to expropriation in the public interest subject to the individual's right to appropriate compensation, pursuant to the legal regulations.” According to Sri Soedewi Masjchoen Sofwan by referring to Article 570 of the Civil Code, ownership rights are the right to enjoy an object fully and to control the object freely, as long as it has not used contrary to the laws or general regulations held by an authority which has the authority to do so and as long as it does not cause interference with the rights of others; all of which do not reduce the possibility of revocation of that right in the public interest, with payment of appropriate compensation and according to the provisions of the law.
45 Meaning that ownership rights are the most important rights when compared to other property rights because those who own it can fully enjoy and master it freely, meaning that the title of ownership rights cannot contest.46 Hence, based on the aforementioned, it can be concluded that the legal position of Token in the Civil Code is intangible movable property.
The token is a property 45 Sri Soedewi Masjchoen Sofwan, above n. 30, 19 46 P.N.H.
Simanjuntak, Pokok-Pokok Hukum Perdata Indonesia, (Penerbit Djambatan, Jakarta, 1999), 217. because it meets the requirements as property according to Article 499 of the Civil Code.
As of Token is considered as property, it may also be entitled to the ownership rights as regulated under Article 570 of the Civil Code in which the property requires that it has possessed through the ownership rights.
It is worth noting how a transfer of ownership using Tokens takes place, whether it is legally permissible at all, and what effects this has on current jurisprudence.
47 According to Book II of the Civil Code, the property has regulated with a closed regulatory system.
This closed regulatory system means that a person or party cannot exercise or create new property rights, except those stipulated or determined by law.
Meaning that a person or party can only impose by ownership rights concerning what has been stipulated by the law.
48 Chapter Three Section One of Book II, specifically on Article 570 defines ownership as rights in enjoying and controlling properties, concerning Article 570 ownership rights in a broad sense could receive through recognition (toeeigening) or transfer (levering).49 Meanwhile, the ways to obtain ownership rights have regulated under Chapter Three Section Two, it has regulated under Article 584 of the Civil Code.
Article 584 of the Civil Code, ownership rights over a property cannot obtain by other means, other than those stipulated in Article 584 of the Civil Code.
Those are through ownership, attachment, expiration, inheritance, as well as appointment or surrender.
In full Article 584 of the Civil Code stipulates as follows: “Ownership rights over properties cannot be acquired in any manner other than by ownership, because of attachment: because it is expired, because of inheritance, both according to the law and according to a will, and by appointment or transfer pursuant to a civil event to transfer ownership, conducted by a 47 Tim Weingärtner, above n 41.
48 I Ketut Oka Setiawan, Hukum Perorangan dan Kebendaan, (Sinar Grafika, Jakarta, 2016), 105.
49 Anissa Rahma Diasti, above n 23.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 116 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… person who was entitled to act freely towards the property.” From Article 584 of the Civil Code, the wording “cannot acquired in any manner other than […]" limits the creation of new ownership rights aside from the law.50 Based on Article 584, the entitled person has the right to transfer ownership rights.
Also, according to Article 613 of the Civil Code, it is stipulated that the transfer of the intangible property requires a record to show the ownership of that property.
Hence, Token, as a digital asset that can be traded electronically and recorded, through the blockchain system has satisfied Article 613 of the Civil Code.
In regards to this paper, the process of transferring ownership rights of Token could finish through mining, purchasing/transacting, or rewarding activities as stipulated in BI Regulations.
In which those processes are using blockchain systems whereas blockchain is interpreted as one type of distributed ledger technology (“DLT”).
The big book contains information in the form of blocks.
The block is connected in a data chain, not interrupted, and protected using cryptography.
51 Blockchain has maintained by a peer-to-peer network made from a collection of nodes that have interconnected to one another.
52 “Nodes” are the individual computers that have a complete copy of the blockchain database, which forwarding the transactions from one node to another.53 In the blockchain, there is 50 J. Satrio, ‘Cara untuk Memperoleh Hak Milik Melalui Penyerahan’, Hukum Online.com, 1 February 2018.< https://www.hukumonline.com/berita/baca/lt5a72 a1e93c48c/cara-untuk-memperoleh-hak-milikmelalui-penyerahan/> 51 Arvind Narayanan, et al., Bitcoin and Cyptocurrency Technologies: A Comprehensive Introduction, (Princeton University Press, Princeton, 2016), 38.
52 Ameer Rosic, What is Blockchain Technology?
A Step-by-Step Guide for Beginners, <https://blockgeeks.com/guides/what-isblockchain-technology/>, Accessed 22 September 2019.
53 Anissa Rahma Diasti, above n 23, 22.
54 Ameer Rosic, above n 52.
55 Lam Pak Nian and David Lee Kuo Chen, ‘Introduction to Bitcoin’, dalam David Lee Kuo no longer one central server or a third party that controls the transaction, whereas there are several distributed and decentralized users.54 In which, the most commonly used blockchain system is a virtual currency.
55 Therefore, as stipulated in the aforementioned BI Regulations the activity will be elaborated below: 1.
Mining The Cryptocurrency movement has always recorded on a blockchain, in which the data is then encrypted and distributed across the entire network.
Before hence, the data shall go through a process called “Mining”.
The mining is a process in which transactions for various forms of cryptocurrency are verified and added to the blockchain digital ledger.56 Mining process involves “Miners” to compete to solve complicated mathematical problems that are associated with a block containing the transaction data.
Miners have a function to update every time a transaction is made and also ensure the authenticity of the data.57 The winner between the Miners who compete to compute the mathematical questions can write the next block.
Meaning, that Miners shall receive cryptocurrency as a reward for the success of resolving the cryptographic puzzle and adding a new block to the blockchain.58 The rewarding process for the work done by Miners is called Proof of Work.59 Mining (claiming or toeeigening) is one of the Token interactions to obtain the Chen, Handbook of Digital Currency: Bitcoin, Innovation, Financial Instruments and Big Data, (Elsevier Inc., Singapore, 2015), 12.
56 Forrest Stroud, cryptocurrency mining, <https://www.webopedia.com/TERM/C/cryptocu rrency-mining.html>, Accessed 11 Septermber 2019.
57 Shanti Rexaline, Cryptocurrency Mining: What It Is, How It Works And Who’s Making Money Off It, <https://m.benzinga.com/article/9953629>, Accessed 19 September 2019.
58 Ethos, What are Cryptocurrency Miners?
How does Cryptocurrency Mining work?
https://www.ethos.io/what-are-minerscryptocurrency-mining, Accessed 19 September 2019.
59 Ibid.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 117 ownership rights of a Token.
Miners, who can write the new block is entitled to the Token-based on Article 585 of the Civil Code.
In full, Article 585 of the Civil Code states that: “Movable assets, which are not within an individual’s ownership, shall become the property of the individual who shall be the first to appropriate them”.
Article 585 of the Civil Code, Mining activity has intended to obtain ownership rights over the movable properties which do not have possession.60 In which in Mining, no users owning the Token in which the Tokens have received after adding a new block.
Miners are getting paid for their works, and Miners motivated by the prize to reward as well as the rights to claim the Token as the fees paid by the cryptocurrency users.
61 Therefore, it is legitimate to obtain Token through the mining process seeing that token is an intangible movable property that does not have possession.
2.
Purchasing or Transacting A transaction happens if there is a value transferred between the wallets that have entered into the blockchain.
62 The wallets will issue address similar to a bank account number, which the addresses in the form of alphanumeric series of characters where the user can receive payment.
63 Transacting means the user utilizes the wallet to create digital information, which expresses the movement of Token from user to the receiver.
This transaction is known as Peer-to-Peer (“P2P”) exchanges which allows user to exchange directly with one another without having a third party to process their transactions.
64 Meanwhile, there is also a trading activity in regards to Token, in which the trading platform shall receive trading fees from facilitating the supply and demand.
Whereas, the traders are expecting to obtain 60 Ketut Oka Setiawan, above n 48, 130.
61 Dimaz Ankaa Wijaya, Dony Ariadi Suwarsono, above n 25, 4.
62 Bitcoin.org, Bagaimana cara kerja Bitcoin?, <https://bitcoin.org/id/cara-kerja>, Accessed 22 September 2019.
63 Anissa Rahma Diasti, above n 23, 24.
64 LinkCoin.pro, Peer-to-Peer Exchanges are THE way to Buy & Sell Cryptocurrency, <https://medium.com/cryptolinks/peer-to-peerprofits from their trading activities in the market.
65 In Indonesia, the first platform of exchange is called Indodax.
66 Then according to the explanation of Token transaction and Token trading, it is possible to used Token as a payment method.
However, the Indonesian government does not facilitate the use of virtual currency as a legal payment.67 Based on the aforementioned, to obtain ownership rights of Token, it can be done through purchasing and transaction as well as trading in the market.
Those process could connect to Article 584 of the Civil Code, which from the wording “by appointment or transfer under a civil event to transfer ownership, conducted by a person who was entitled to act freely about the object” it has known that civil event can be in form of agreement, unilateral legal actions or laws, even though the most common are agreements which is the sale and purchase agreement.
68 Meaning that transacting and trading of Token can also be considered as a civil event that is legal according to the Law.
To elaborate, for the transfer to succeed in making the receiving party to obtain the ownership rights over the goods, the following conditions must be fulfilled: i.
The transfer is based on a civil event ii.
The transfer is conducted by a person who was entitled to act freely towards the object The first condition, which is the civil event, is a legal relationship that rises obligations to conduct transfer that can be in the form of agreements unilateral legal actions or laws as mentioned above.
The obligations shall follow by the action of the transfer.
The second condition is regarding the person who conducts the transfer.
The person or party who has the authority to conduct the transferring action over the exchanges-are-the-way-to-buy-sellcryptocurrency-a5d6b82ec0e6>, Accessed 22 September 2019.
65 Dimaz Ankaa Wijaya, Dony Ariadi Suwarsono, above n 25, 4.
66 Dimaz Ankaa Wijaya, Dony Ariadi Suwarsono, above n 25, 6.
67 Dimaz Ankaa Wijaya, Dony Ariadi Suwarsono, above n 25, 5.
68 J. Satrio, above n. 50.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 118 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… object is the owner of the object in question, although as exceptions, the rights can be in the hands of another person, such as curator, trustees, or bewindvoerder who will act on behalf of the owners.69 Hence according to the aforementioned paragraphs, the ways to obtain ownership rights over a property concerning Article 584 of the Civil Code, which in this paper specifically talks about Token, can be done through purchasing and transacting as well as trading.
First, purchasing Token is the same with sale and purchase according to the civil event, in which Token can purchase by using the currency.
Users can exchange conventional money for online exchange fees in which users buy token using fiat currency on the market and by exchanging for goods or services that accept token through purchasing/transacting.
70 Second, transacting or transaction of Token is the transfer of ownership rights of Token through P2P exchanges between users without the involvement of third parties.
Lastly, trading as the transference of Token has conducted in the trading market.
Those activities can be legally considered as a civil event as long as it does not violate the law and conducted by the entitled person.
Within those activities, the ownership rights of Token could transfer.
3.
Rewarding The third way of transferring the ownership rights of the Token is rewarding or gifting.
71 These processes are the processes where the receiver of the reward or gifts obtain Token for free without any expenses.
The rewarding or gifting process might happen in several ways, such as gifts from the system to Miner, from becoming a 69 Ibid.
70 Anissa Rahma Diasti, above n 23, 24.
71 Elucidation of Article 8 (2) of PBI 19/2017.
72 Thomas Adams, What is XLM (Stellar Lumens) Cryptocurrency?, <https://thomasfadams.com/what-is-xlm-stellarlumens-coin/>, Accessed 22 September 2019.
73 Coindesk, What is Stellar?
(XLM), <https://www.coindesk.com/information/stellar101-what-is-stellar-xlm>, Accessed 22 September 2019.
74 Yodik Prastya, Mengenal Apa Itu Bounty Hunting Kripto, “bounty hunter”, by joining an event made by the system, or by just simply from gift cards.
The token can be given for free from the system, in which this happened in 2014, where Stellar network distributed the initial 100 billion of XLM (currency symbol for Stellar) 72 to a variety of parties consist of individuals who have invited, various parties, Bitcoin holders, and the remaining were kept for the operational purposes.73 The fact that prices of cryptocurrency keep increasing in the market makes users harder to purchase it.
However, there is a chance to earn free crypto money without spending money, which is through a process called bounty hunting.
If translated into activities in the crypto market, companies that introduce products or services will reward bounty hunters after doing their job.74 In practice, this activity has associated with an initial coin offering (“ICO”), ICO provides a reward for promoting, bug reporting, or for improving the aspects of the cryptocurrency framework.
The reward can be in the form of a Token or fiat currency.75 The token can also be given through gift card, which the examples is a Bitcoin Gift Card, that the gift card has used to gifting aspect of cryptocurrency.
This gift card allows users to give other people the gift of cryptocurrency without fear and risk.76 However, in practice rewarding rarely happens.
In Indonesia, Rewarding (hibah) is regulated under Article 1666 of the Civil Code which states that: “Article 1666 of the Civil Code Rewarding is an agreement, whereby the giver, grants the objects voluntarily and irrevocably for the benefit of the <https://www.seputarforex.com/artikel/mengenalapa-itu-bounty-hunting-kripto-284978-38>, Accessed 22 September 2019.
75 Jake Frankenfield, Bounty Programs, <https://www.investopedia.com/terms/b/bountyprograms-ico.asp>, Accessed 22 September 2019.
76 Amber Reeves, The Case for Crypto and Gift Cards: Solving the Mistery, <https://reafmarketing.com/the-case-for-cryptoand-gift-cards-solving-the-mystery/>, Accessed 22 September 2019.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 119 receiver who accepts the transfer of the objects.
The law only recognizes rewards between living people.” From the paragraphs above, it could understand that there must be a reason for giving a reward to another person or party.
In regards to rewarding Token, the reward mainly given from the system to the user, the difference is only in regards to the purposes, the gifts from the system, for example, the Stellar, aims to increase the attraction towards cryptocurrency specifically the Stellar.
Meanwhile, for the bounty hunting associated with ICO, the purpose is mainly to help the ICO and to expand the promotion.
In regards to the gift card, the purpose is solely only gifting the cryptocurrency.
Concerning Article 1666, Token rewarding or gifting can be considered as rewarding according to the article, whereas Token rewarding happens voluntarily and provides benefits towards the receiver.
Therefore, the transfer of ownership rights of Token can also be done through rewarding or gifting.
Therefore, Token could determine as intangible movable property.
This is due to Token according to its form, has met the prerequisite characteristics of an intangible property that is digital in its form and having no physical form which interpreted from Article 499 of the Civil Code while according to its movability, Token has considered as movable properties concerning Article 505 which according to its nature Token could move, where the movement is conducted digitally through the blockchain technology.
To obtain the ownership rights of Token, with the reference to the elucidation of BI Regulations, several ways could have conduct that are using the movability of Token, which are: (1) mining; (2) purchasing; or (3) transfer of gifts (rewards).
Capital Market Law Without disregarding the possibility of implementing the US regulatory approach in Indonesia, it is important to take into consideration the inherent difference of legal system between the US and Indonesia.
While 77 Law Number 8 Year 1995 on Capital Market.
the US securities act allows further interpretation through the practice of stare decisis, in Indonesia the attempt to define token as a security or tokenized security can be seen from Law Number 8 the Year 1995 concerning Capital Market (UU Pasmod).77 Further, Art.
1(5) of UU Pasmod 78 defines security as: “Securities are promissory notes, commercial paper, shares, bonds, evidence of indebtedness, Participation Units of collective investment contracts, futures contracts related to Securities, and all derivatives of securities.” The elucidation further elaborates: “Derivatives refer to rights that have derived from either debt or equity Securities, such as Options or Warrants.
An “Option” is the right to purchase or sell within a certain time, a specified number of Securities at a specified price.
A “Warrant” is a Security issued by a company giving the holder the right, six months or more after the Securities are issued, to subscribe to shares of the Company at a specified price.” Tokenized security can fall under the definition of “security” of UU Pasmod assuming that the tokenized security is a security which falls under Art.
1(5).
In regards to discussing the legality of a security token, there are two relevant opinions to be highlighted.
Moreover, it is important to emphasize that virtual currency, tokenized security, and security token utilizes the same underlying technology (Blockchain).
According to Soonpeel Edgar Chang, virtual currency does not constitute securities under Art.
1(5) of UU Pasmod (including its elucidation).
Regardless of whether the virtual currency is a security or not, some foreign jurisdictions such as the United States, United Kingdom, and Switzerland apply securities regulations to initial coin 78 Article 1(5) of Law Number 8 Year 1995 on Capital Market.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 120 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… offerings.
79 ICO (token sale, initial token offering, ITO, or crowd sale) offers existing virtual currency, newly developing virtual currency, or token of certain rights involved in the project to solicit funds from the general public.80 South Korea and China, on the other hand, explicitly prohibit ICO as of now.
In Indonesia, there is no explicit prohibition for ICO, however, the current situation is that Indonesia makes it virtually impossible to conduct ICO through banning the use of virtual currencies as payment instruments.
81 This is also supported by Fahrul S. Yusuf and Harry Kuswara, stating ICO is not yet specifically regulated under UU Pasmod, seeing the status quo.
82 However, if the issuer uses fiat currency as its payment instrument, it would be allowed in Indonesia.83 Such a status quo happened due to the limited definition under UU Pasmod for securities.
The status quo of UU Pasmod only defines security as promissory notes, commercial paper, shares, bonds, evidence of indebtedness, Participation Units of collective investment contracts, futures contracts related to Securities, and all derivatives of securities.84 However, security token and tokenized security could have classified as a security by analyzing security elements.
Referring to H.M.N Purwosutjipto’s argument, there were 3 elements which are relevant to determining whether an object could have deemed as a security or not.
Therefore, this section will analyze the elements of security on both security token and tokenized security.
79 Finma, Regulatory treatment of ICO & FINMA Guidance 04/2017 (29/09/2017), FCA, ICO Statements (12/09/2017).
80 Soonpel Edgar Chang, ‘Legal Status of Cryptocurrency in Indonesia and Legal Analysis of the Business Activities in Terms of Cryptocurrency’, (2019) 6(1) Brawijaya Law Journal: Journal of Legal Studies, 85-86.
81 Article 8, Central Bank of Indonesia Regulation 19/12/PBI/2017 82 Fahrul S. Yusuf and Harry Kuswara, 2018, ‘Weighing the Future', International Financial Law Review, < https://www.iflr.com/Article/3821207/Weighingthe-future.html?ArticleId=3821207> on October 2, 2019.
According to H.M.N Purwosutjipto85, promissory notes have three distict elements which are (i) letter of evidence of debt demand, (ii) rights holder, and (iii) transactional.
(i) Letter of Evidence of Debt Demand The letter has defined as a deed in which it is a letter that is signed and purposely issued to serve as evidence.
The signatory is bound by the content within the deed (pacta sunt servanda).
86 Consequently, the deed serves as a proof of indebtedness relationship among the signatory.
The debt within the deed refers to the fulfillment of agreement by the debtor to the creditor that possesses the right to demand payment as vested by the deed.
The demand may be in the form of money (e.g checks), goods (e.g cognossement -bill of lading), or others (e.g charter-party).
(ii) Rights Holder Rights to demand fulfillment from the debtor.
The promissory notes signify the bearer of rights87 (Drager van Recht), thus such rights are vested within the deed of promissory notes or seen as inseparable.
Consequently, if the deed is missing or destroyed, gone will be the rights to demand fulfillment.
“Bearer of rights” is an appealing feature that stands out in: 83 Araya Anggara Putra, Perlindungan Hukum Terhadap Investor Dalam Initial Coin Offering di Indonesia, (Penulisan Hukum, Universitas Gadjah Mada, Yogyakarta, 2018) 84 Article 1(5) of Law Number 8 Year 1995 on Capital Market.
85 H.M.N Purwosutjipto, Pengertian Pokok Hukum Dagang Indonesia: Hukum Surat Berharga, (Djambatan, Jakarta, 1984), 5-6.
86 See further Article 1338 of Indonesia Civil Code (Kitab Undang-undang Hukum Perdata – KUHPer) 87 H.M.N Purwosutjipto, above n. 85, citing “verified by Dorhout Mees, Scheltema/Wiarda, Zevenbergen, and Vollmar on each of their book.” Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 121 a) Bank Fiat Money (promes tothe-bearer type promissory notes or promesse aan toonder) If an IDR10,000 is missing or destroyed, the owner is ineligible to request the Bank of Indonesia for replacement.
b) Draft If missing, the former owner is ineligible to receive draft payment from the acceptor unless having a guarantee letter equal to the draft’s value for 30 years.88 c) Surat Sanggup if missing or destroyed, bound by Art.
176 jo 167 a-b of Indonesia Commercial Code (KUHD).89 (iii) Transactional To enable transaction for a promissory note, it can either have formulated as “to order” (aan order) or “to bearer” (aan toonder).
“To order” is transferable via endorsement while “to bearer” via physical.
Both have regulated under Art.
613(3) of Indonesia Civil Code.90 Moreover, surat yang berharga (papieren van waarde) is solely transferable via cessie as regulated under Art.
613(1-2) of KUHPer.
91 Therefore, such transfer is quite difficult compared to endorsement or physical.
Based on the aforementioned elements, H.M.N Purwosutjipto further stated that promissory notes could have classified into two types that are “to order” and “to bearer”.
He concurred with Scheltema/Wiarda’s opinion.92 If tokenized security falls under the definition of securities as defined by Art.1(5) 88 Article 167a-b of Indonesia Commercial Code (Kitab Undang-undang Hukum Dagang).
89 Article 176 jo 167a-b of Indonesia Commercial Code.
90 Article 613(3) of Indonesia Civil Code (KUHPer) 91 Art 613(1-2) of Indonesia Civil Code (KUHPer) of UU Pasmod, then depending on the offering, it can either be offered through IPO procedure as stipulated under UU Pasmod or POJK ECF.93 However, in case of security token due to its novel concept, whereas it shares similar traits with conventional securities, through interpreting the notion of “promissory notes” (surat berharga) as mentioned before by H.M.N Purwosutjipto, the security token may be recognized as security under UU Pasmod.
With that in mind thus, it is important to ensure the law not in any way hinders the progress of business practice while, at the same time fulfill the public interest for certainty.
As of now in Indonesia, both Indonesia Financial Service Authority (OJK) and Indonesia Commodity Futures Trading Regulatory Agency (BAPPEBTI) have laid down several regulations in regards to crypto products.
Particularly for this paper, the regulations that will discuss are related to security token.
Before the discussion of definition and issuance itself, it is important have emphasized that by definition of a security token, OJK and BAPPEBTI have their definition.
While for the issuance of security token, it is subject to OJK’s regulations.
This is to ensure the clarity of the discussion for this section.
Since crypto-assets have deemed as commodity, thus it becomes subject to BAPPEBTI’s regulations and terms.
According to Art.1(2) of Law Number 10 of 2011 on Commodities & Futures Trading (UU PBK) 94 , commodities are any goods, services, rights, and other interest, and every commodity’s derivatives, that can be traded and be subject to future contract, sharia derivative contract, and/or another derivative contract.
Crypto assets fall under the notion of “rights and other interest”.
A more elaborative definition on crypto is stipulated in BAPPEBTI Regulation Number 5 of 2019 on Technicalities of 92 H.M.N Purwosutjipto, above n. 85.
93 OJK Regulation Number 37 Year 2018 on Equity Crowdfunding (POJK 37/2018).
94 Article 1 paragraph (2) Law Number 10 Year 2011 Concerning Futures Trading Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 122 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… Crypto Asset Trading on Commodities & Futures Exchange (Reg 5) 95 as issued by Ministry of Trade Regulation Number 99 of 2018 on General Policy for Commodities & Futures Trading of Crypto Asset (PERMENDAG 99/2018)96.
Although Reg 5 regulates trading technicalities, it provides several relevant definitions.
Art.
1(7) of Reg 5 97 defines a crypto asset as an intangible commodity in the form of a digital asset that uses cryptography, peerto-peer network, and distributed ledger (blockchain) for formulating new units, verify transactions, and secure transactions without the need of another party.
Moreover Art.
1(13-14) 98 detailed the definition of token and coin.
The coin has defined as one form of crypto asset that possesses its blockchain configuration and possesses characteristics such as the first crypto asset, Bitcoin.
The token has defined as one of the crypto assets that derive from the coin.
Regardless of BAPPEBTI’s attempt to define, in practice coin could betoken and vice versa, depending on the designer/issuer’s will.
Art.
3 of Reg 5 stipulates the requirements for a crypto asset to be traded in the exchange.
Particularly it allows only either utility crypto or crypto-backed asset.
Utility crypto can be for example utility token while the crypto-backed asset is a security token.99 Simply put, a utility token is one of the crypto assets where its usage is limited to the ecosystem designed by the issuer.
A security token, on the other hand, also known as tokenization is a crypto asset with an underlying asset or object.
Such underlying may vary from shares, bonds, part 95 BAPPEBTI Regulation Number 5 of 2019 on Technicalities of Crypto Asset Trading on Commodities & Futures Exchange 96 Ministry of Trade Regulation Number 99 of 2018 on General Policy for Commodities & Futures Trading of Crypto Asset 97 Article 1 paragraph (7) BAPPEBTI Regulation Number 5 of 2019 on Technicalities of Crypto Asset Trading on Commodities & Futures Exchange 98 Article 1 paragraph (14) BAPPEBTI Regulation Number 5 of 2019 on Technicalities of Crypto Asset Trading on Commodities & Futures Exchange 99 Article 3 paragraph (2) letter b-c BAPPEBTI Regulation Number 5 of 2019 on Technicalities of of the land, etc.
depending on the issuer.
Moreover, it has clearly stated that Reg 5 has not intended to regulate the initial coin offering (ICO).100 OJK possesses the authority over the crypto asset, specifically if its underlying object is share/represents shares ownership.
This is due to Art.
1(1 & 6) of Law Number 21 of 2011 on Financial Service Authority (UU OJK) stipulates OJK’s regulatory and supervisory functions span to the capital market sector as part of financial service institutions.
101 The capital market has defined as activities related to Initial Public Offering (IPO) and securities trading, public company related to its issued securities, as well as institutions and professions related to securities as defined by Law Number 8 of 1995 on Capital Market (UU PM).102 The aforementioned law applies to shares in general.
However, OJK also can regulate security token if such shares are in the scope of Equity Crowd Funding (ECF) as well.
This could have seen in Art.35 OJK Regulation Number 37/04 of 2018 on Equity Crowd Funding that stipulates for scriptless trading (non-physical shares) (POJK 37/2018).
103 Several ECF platforms (i.e.
Alumnia and Santara 104 ) offer the use of blockchain and security token as to ease the ECF scheme.
Since security token is similar to scriptless trading, therefore, it can be implied that security token is subject to POJK 37/2018.
Having that said, it could have concluded that security token definition can be seen in BAPPEBTI’s regulations and to some extent under OJK’s regulations.
Crypto Asset Trading on Commodities & Futures Exchange 100 Ibid., Article 2 paragraph (3) 101 Law Number 21 Year 2011 concerning Financial Services Authority, Article 1 paragraph (1) and (6), Article 4, 5, 8, and 9.
102 Ibid., Article 1 paragraph (6) 103 Article 35 OJK Regulation Number 37/04 of 2018 on Equity Crowd Funding 104 Peter Dabu, ‘Santara also conduct crowdfunding for MSMEs through token offering’ on Blockchain Media, <https://blockchainmedia.id/santaraklaim-minta-restu-ojk-sebagai-penyelenggaraurun-dana-berbasis-blockchain/>, retrieved October 10 2019 09.40 AM.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 123 For the issuance terms specifically for a security token, it has solely regulated by OJK.
Assuming if the underlying security token is a security/share the applicable law will be UU PM and POJK 37/2018.
Art.1(5) of UU PM defines securities as promissory notes, commercial paper, shares, bonds, evidence of indebtedness, Participation Units of collective investment contracts, futures contracts related to securities, and all derivatives of securities.105 POJK 37/2018 is relevant also as it defines ECF as a platform for shares offering by the issuer to the investor through an open electronic system.
106 Taking into consideration that some ECF platforms implement blockchain and usage of security token as a means to deliver non-physical shares.107 For security token that has issued in the scheme of ECF, it will be subject to POJK 37/2018.
If it has issued by Public Company, hence it is subject to UU PM.
Further procedures of shares issuance could have seen in each respective law.
Financial Technology Law Issuing token through ICO generally uses virtual currency for payment systems.
Post-2016, 80% of ICOs only accept Bitcoin or Ether as a means of payment.108 This is one of the advantages compared to conventional fund collection methods because, with these methods, ICO Organizers can attract Investors from all over the world through the internet network.
Payment methods using virtual currency provide convenience and better speed compared to money transfers through banks, so investors are much easier to contribute to ICOs.
In response to the above, in January 2018, Bank Indonesia as the authority of the payment system through Press Release No.
20/4 / Dkom prohibits all payment 105 Undang-undang Nomor 8 Tahun 1995 tentang Pasar Modal, Pasal 1 ayat 5 106 Peraturan OJK Nomor 37 Tahun 2018 tentang Urun Dana Melalui Penawaran Saham Berbasis Teknologi Informasi (ECF), Pasal 1(1) 107 Alumnia & Sentara 108 Dmitri Boreiko and Navroop K. Sahdev, ‘To ICO or not to ICO Empirical analysis of Initial Coin Offerings and Sales Tokens’, (2018) 10 SSRN Electronic Journal, No.
2139/ssrn.3209180, 15. system service Operators and Financial Technology Operators in Indonesia, both Banks and Non-Bank Institutions from processing payment transactions with virtual currency.
109 Furthermore, positive laws prohibiting the use of virtual currencies are regulated in Bank Indonesia Regulation Number 19/12 / PBI/2017 concerning Implementation of Financial Technology ("PBI 19/2017").
PBI 19/2017 defines Financial Technology in Article 1 number 1 which reads: “Financial Technology is the use of technology in a financial system that produces new products, services, technology and / or business models and can have an impact on monetary stability, financial system stability, and / or the efficiency, smoothness, security and reliability of payment systems.” Several elements of financial technology can be extracted from the above definition, namely: (1) the use of technology in the financial system; (2) produce new products, services, technology and/or business models; and (3) can have an impact on monetary stability and/or the smooth operation of the payment system.
These elements form the basis for an analysis of the status of ICO as a financial technology which has reviewed as follows: a.
The use of technology in the financial system The financial system is defined as a system that provides an exchange of funds between lenders, investors, and borrowers and operates on a national and global scale.
110 ICO provides an alternative for investors to invest their capital to businesses through a new asset class, namely tokens.
From a technical 109 Bank Indonesia, Press Release No.
20/4 / Dkom: Bank Indonesia warns all parties not to sell, buy or trade virtual currencies, <https://www.bi.go.id/en/ruang-media/siaranpers/Pages/sp_200418.aspx> accessed 5 April 2018.
110 Arthur O'Sullivan,and Steven M. Sheffrin, Economics: Principles in Action, : Pearson Prentice Hal, (New Jersey, 2003), ISBN 0-13063085-3, 551.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 124 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… point of view, ICO uses blockchain technology for publishing tokens.
Through the blockchain, investors can send funds and get the proportion of tokens invested.
b.
Producing new products, services, technology, and/or business models.
ICO uses blockchain technology that was first popularized by Bitcoin in 2009.
5 years later, Ethereum was born who brought the concept of crowdfunding to a token 111 above blockchain technology.
Although crowdfunding practices have long carried out in Indonesia,112 ICO uses a new method of fundraising through blockchain.
c. Having an impact on monetary stability and/or smooth payment system.
If the market capitalization of the ICO continues to increase, it does not rule out the possibility that the ICO can have a widespread impact on financial system stability.
Risks in ICO practices have seen in the rise of fraud practices and technological risks that are vulnerable to hacking from outsiders.113 Thus, make use of the ICO method in terms of fundraising falls into the category of Financial Technology.
ICO Operators are included as Financial Technology Operators in the capital raising category as referred to in Article 3 paragraph (1) letter d PBI 19/2017, which is "every party that carries out Financial Technology activities".
This has also emphasized in the Elucidation of Article 3 paragraph (1) letter d, which reads as follows: Examples of the implementation of Financial Technology in the categories of lending, financing 111 Vitalik Buterin, ‘Ethereum White Paper: A NextGeneration Smart Contract and Decentralized Application Platform’, <https://github.com/ethereum/wiki/wik i/White-Paper#token-systems> , accessed 18 October 2019.
112 In Indonesia, crowdfunding practices are quite common.
KitaBisa is one of the popular crowdfunding donation-based platforms.
Legally, KitaBisa's business model can be included as the practice of collecting money and goods as regulated in Law No.
9 of 1961 concerning the Collection of Money and Goods.
See: KitaBisa, "Izin Penggalangan Dana KitaBisa or funding, and capital raising include information technology-based lending and borrowing services (peer-topeer lending) and information technology-based financing or fundraising (crowd-funding).
Departing from the description above, it could have concluded that ICO meets crowdfunding characteristics because ICO uses information technology to mobilize through token and fiat money payments to have exchanged for token issuance.
The legal consequences of the above basis prohibit the Operator from using virtual currency.
This condition is certainly in contrast to the ICO payment method, which has generally integrated with blockchain, which generally uses tokens as payment options such as Bitcoin and/or Ether.
The prohibition on the use of tokens as a means of payment has regulated in Article 8 paragraph (2) PBI 19/2017 which reads "In addition to the obligations referred to in paragraph (1), Operators of Financial Technology are prohibited from carrying out payment system activities using virtual currencies."
what is meant by virtual currency is spelled out in the Explanation of Article 8 paragraph (2) PBI 19/2017 which reads: What is meant by "virtual currency" is digital money issued by parties other than monetary authorities that are obtained by mining, purchasing, or transfer of gifts (rewards).
Prohibition of carrying out payment system activities using virtual currency because virtual Permit", https://help.kitabisa.com/articles/360000 376614-whether-kitabisa-have-investingdiscounting-dana , accessed 18 October 2019.
113 On June 17, 2016, one of the ICO projects, Decentralized Autonomous Organization (The DAO) got cyber attacks from hackers.
This event eliminated 3.6 million Ether with a potential loss of 50 million US dollars.
See: Nathaniel Popper, "A Hacking of More Than $ 50 Million Dashes Hopes in the World of Virtual Currency", https://www.nytimes.com/2016/06/18/business/de albook/hacker-may-have-removed -more-than-50million-from-experimental-cybercurrencyproject.html , accessed October 10, 2019.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… | 125 currency is not a legal payment instrument in Indonesia.
Although the terminology used is a virtual currency, based on the above definition, the token with the payment token classification falls into that definition, which functions like digital money.
Tokens are not legal tender in Indonesia.
This is stated in Article 1 number 2 of the Law of the Republic of Indonesia Number 7 of 2011 concerning Currency ("Law 7/2011").
The applicable money in Indonesia has Rupiah as regulated in Article 2 of Law 7/2011.
Based on Article 21 paragraph (1) of Law 7/2011, Rupiah must have used in every transaction that has the purpose of payment, settlement of other obligations that must have fulfilled with money, and/or other financial transactions conducted in the Territory of the Republic of Indonesia.
The exception is that the provisions of Article 21 paragraph (1) are explained in Article 21 paragraph (2).
In addition to Law 7/2011, the obligation to use Rupiah is also regulated in Article 2 of Bank Indonesia Regulation Number 17/3 / PBI / 2015 concerning Rupiah Usage Obligation ("PBI 17/2015").
Furthermore, there is an Operator that violates, then there are administrative sanctions as regulated in Article 18 PBI 17/2015.
Whereas violations of the provisions of Article 8 paragraph (2) PBI 19/2017 are regulated in Article 20 paragraph (2) PBI 19/2017.
In addition to administrative sanctions, there are criminal sanctions for everyone who violates not using Rupiah as stipulated in Article 33 paragraph (1) of Law 7/2011.
Therefore, if the ICO Operator whose payment system uses payment tokens, this violates the provisions of Article 21 paragraph (1) of Law 7/2011, Article 2 of PBI 17/2015, and Article 8 paragraph (2) of PBI 19/2017.
114 Araya Anggara Putra, Legal Protection of Investors in Inital Coin Offering in Indonesia, However, in practice, not all ICOs use payment tokens as their payment system.
One example of the implementation of ICO in Indonesia is held by PT Ciptalintang Aji Dana, which conducts ICO by issuing a token named Cyronium.
In the ICO, the payment system not only uses payment tokens but also provides a payment system by bank transfer using Rupiah.114 So that ICO conducted by PT Ciptalintang Aji Dana does not violate the provisions of the obligation to use Rupiah in the payment system as stipulated in Law 7/2011, PBI 17/2015, and PBI 19/2017.
Based on the description above, it can have concluded that if the ICO Operator uses virtual currency in its payment system, the Operator violates positive law in Indonesia.
Meanwhile, if the ICO Operator uses Rupiah in its payment system, the Operator does not violate the obligation to use Rupiah for each transaction in the Territory of the Republic of Indonesia.
IV.
CONCLUSION With regards to the research results and analysis, the Author finalizes 2 (two) conclusions which have found how other countries regulate blockchain-based tokens within a taxonomy and the legality of blockchain-based tokens in Indonesia.
We conclude that reflecting upon selected countries (United States, Singapore, Switzerland, Japan, and the United Kingdom), the relevant state regulators have uniformity in responding to blockchainbased tokens.
The main points are the determination of tokens as securities and their validity as a means of payment in the jurisdiction of their respective countries.
This has implications for the birth of 3 (three) types of tokens that have different legal implications in each country, namely: Security Tokens, Payment Tokens, and Utility Tokens.
On the other hand, it needs to underline that the country above has a functional approach in dealing with tokens.
This is different from the Indonesian arrangement, which chooses a technical (Thesis, Gadjah Mada University, Yogyakarta, 2018), 84.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 126 | Santoso, Putra, et.
Al Governing Blockchain-Based Token in Indonesia: Legal and… approach to token management by defining tokens as derivatives of coins.
Furthermore, the legality of tokens in Indonesia intersects with several aspects: First, their validity as objects according to the Civil Code; Second, profits from token trading can be subject to Income Tax; Third, there is an overlapping authority in the issue of security token trading between BAPPEBTI and the Financial Services Authority; and Fourth, there is a prohibition on the issuance of tokens through ICO in Indonesia when using the payment token as the payment system.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.01 | 1 Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry Kalu Kingsley Anele Cultural Heritage Preservation Research Institute (CHPRI), Pusan National University, Busan Email: kkanele@gmail.com Submitted : 2019-10-17 | Accepted : 2020-03-26 Abstract: Piracy off the coast of Indonesia may implicate on the craft industry; a significant non-oil foreign exchange earner in the country’s economic development.
For instance, piracy may affect tourists’ use of cruise ship, exportation of craft products, and importation of raw materials and equipment for craft production in Indonesia.
Consequently, it is imperative to repress piracy off the coast of Indonesia.
In determining the potential effects of piracy to the craft industry, this paper addressed the linkages between piracy and craft and observed that piracy may pose a threat to the craft industry in Indonesia.
Thereafter, the causes and effects of piracy on Indonesia’s craft industry were interrogated.
It was submitted that hijacking a vessel carrying craft items or a cruise ship may have economic, humanitarian and financial implications on Indonesian craft industry.
The paper suggested measures to curb piracy off Indonesian coast and argued, inter alia, that updated piracy legal regime, strengthened institutional framework, and regional cooperation are central to combating piracy off the coast of Indonesia.
Keyword: Indonesia, craft, piracy, Indonesian coast, KUHP, LOSC, SUA Convention I.
INTRODUCTION As the largest archipelagic country in the world, Indonesia is the fourth most populated country in the world endowed with lots of diverse natural resources, crafts, ethnicities, languages, cultural heritage, and cultures.
1 This research was supported by the Ministry of Education of the Republic of Korea and the National Research Foundation of Korea (NRF2019S1A3055792).
1 Fadilah H. Arief, ‘Indonesian crafts: the overlooked potential of geographical indication’, (2016) 2(3) Consequently, Indonesian government promotes and gives special attention to the development of craft industry in Indonesia through legislation and policies.
2 For illustrative purposes, the Presidential Instruction No.
6 of 2009 strengthens the International Journal of Culture and History 87, 87.
For example, Indonesia is blessed with oil and gas.
See generally, ‘Oil and gas in Indonesia’, PWC Investment and Taxation Guide, May 2017, 2 See National Industry Policy No.
28, 2008 and Presidential Regulation No.
72, 2014.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 2 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry creative economy and the Presidential Regulation No.
92 of 2011 created a new ministry called the Ministry of Tourism and Creative Economy to promote the economic potentials of the creative economy in Indonesia.
Consequently, craft was made an integral part of the creative economy in the country.
According to report, Indonesia’s craft market has significantly contributed to the overall creative industry export totaling 32.38 percent from 2010-2016, with an export value of US$7,797.6 million in 2016.3 More importantly, the government of Indonesia prioritised the tourism sector in its economic blueprint through the establishment of the National Medium-Term Development Plan (RPJMN) for 2015-2019 and the “Pengembangan Destinasi dan Industri Pariwisata” policy drive, 4 which fosters the development of the craft industry.
In fact, owing to the growth in the tourism sector and its attendant positive economic outlooks, the Indonesian government’s tourism policy target was to attract 20 million tourists to the country by 2019 from 14 million tourists in 2017.5 This paper submits that the combined effect of the policies to boost tourism and the creative economy is to strengthen the production, marketing, and exportation of Indonesia’s craft products to the global craft market.
From the foregoing, the nature of traditional craft practices in Indonesia has gone beyond the conventional modes of production 3 See OPUS, Creative economy-outlook 2019 (BEKRAF, Jakarta, 2018) 48 and ‘Financing opportunities in Indonesia’s creative industry: final report’, on IPSOS Business Consulting, April 2018, 16.
4 Patrice Ollivaud & Peter Haxton, ‘Making the most of tourism in Indonesia to promote sustainable regional development’ on Economics Department Working Papers No.
1535, Organisation for Economic Co-operation and Development (OECD), 17 February 2019, 11.
5 Ibid, 4-8.
6 Fryza P. Pavitta, et al (eds.
), Craft (Simpul Group: Jakarta, 2019) 16.
7 Ibid.
8 For details of the importance of maritime transportation in the economic development of Indonesia, including the craft industry and tourism due to technology, globalisation, and changing socioeconomic conditions in the country.
Consequently, the over 700,000 handicraft business units that employ 1.32 million workers in Indonesia 6 are producing craft products which are sold within the country (at both the rural and the urban markets).
Further, due to mass production, Indonesian crafts are also sold at the global craft market with an export value of US$823 million from January to November 2018, 7 thereby broadening its scope of economic potentials (see Figs.
3 & 4 below).
As a significant non-oil foreign exchange earner in Indonesia, the craft industry exports diverse Indonesian crafts to the global craft market and maritime transportation is pivotal in this regard.8 In addition, the growth of tourism and the creative economy is a contributory factor to enhance and strengthen the global outreach of Indonesia’s crafts.9 In light of this, Indonesia, like other neighbouring countries, depends on tourism and the exportation of craft products (essentially metal, wood, earthenware, and textile) for its economic development.
Historically, the Strait of Malacca has been the navigational route for merchants from India and China who traded on elephant tusks, rhinoceros horns, incense, silk, and medicinal herbs, while spices, like pepper, cloves, and nutmeg, and aromatics such as cinnamon and camphor were the major products that incentivised Western and Arab sailor-traders.10 (specifically maritime tourism), see generally Aristyo R. Darmawan, ‘Indonesia’s global maritime fulcrum: how can traditional coastal communities benefit from it?’ <https://www.academia.edu/33642162/INDONESI AS_GLOBAL_MARITIME_FULCRUM_HOW_C AN_TRADITIONAL_COASTAL_COMMUNITIE S_BENEFIT_FROM_IT> accessed 8 August 2019.
9 Lakhimi J. Chuta & Mrinmoy K. Sarma, ‘Commercialization of traditional crafts of South and South East Asia: a conceptual model based on review of literature’, (2016) 5(2) IIM Kozhikode Society & Management Review, 107.
10 Rheny W. Pulungan, ‘The limitations of the international law on piracy and maritime terrorism: options for strengthening maritime security in the Malacca Straits’, (submitted in total fulfilment of the requirements of degree of Doctor of Philosophy https://www.academia.edu/33642162/INDONESIAS_GLOBAL_MARITIME_FULCRUM_HOW_CAN_TRADITIONAL_COASTAL_COMMUNITIES_BENEFIT_FROM_IT https://www.academia.edu/33642162/INDONESIAS_GLOBAL_MARITIME_FULCRUM_HOW_CAN_TRADITIONAL_COASTAL_COMMUNITIES_BENEFIT_FROM_IT https://www.academia.edu/33642162/INDONESIAS_GLOBAL_MARITIME_FULCRUM_HOW_CAN_TRADITIONAL_COASTAL_COMMUNITIES_BENEFIT_FROM_IT https://www.academia.edu/33642162/INDONESIAS_GLOBAL_MARITIME_FULCRUM_HOW_CAN_TRADITIONAL_COASTAL_COMMUNITIES_BENEFIT_FROM_IT Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 3 More importantly, the Strait of Malacca, a choke point, connects the China Sea to the Indian Ocean.
Hence, maintaining a secured and safe navigation is key in view of the rising economic importance of Asia in the world.11 Nonetheless, about 3 decades ago, pockets of modern piracy attacks against Vietnamese boats occurred in the Gulf of Thailand, in addition to armed robbery attacks on vessels navigating through the Strait of Malacca.
12 Moreover, it is pertinent to bring to the fore that piracy in the Southeast Asia has been in existence prior to the advent of European colonisation.
By way of illustration, the description of pirates acts in the Strait of Malacca by a Buddhist Monk Shih Fa-Hsien, who travelled from Ceylon to China, a Mongolian official’s written evidence of piracy in the Singapore Strait in the 14th century, the existence of Malacca Sultanate as a piracy haven,13 and contemporary piracy off the coast of Indonesia reveal the historical development of piracy in Asia.14 In fact, contemporary piracy acts in the Southeast Asia gained international prominence owing to the 9/11 terrorist attacks in the United States (US).
Consequently, it is observed that lax maritime security would embolden ‘terrorists to hijack oil or natural gas Melbourne Law School, the University of Melbourne, June 2014), 32.
11 Solvay Gerke & Hans-Dieter Evers, ‘The strategic importance of the Straits of Malacca’, (Nusantara Papers No.
2, 2016), 2.
12 Hugh R. Williamson, ‘New thinking in the fight against marine piracy: financing and plunder preempting piracy before prevention becomes necessary’, (2013) 6 Case Western Reserve Journal of International Law 335, 336.
Piracy legal instruments include The United Nations Convention on the Law of the Sea, adopted in 1982 and came into force 1994, 21 ILM (1982), 1261, hereafter referred to as the “LOSC” and The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted 10 March 1988, UNTS 1678, hereafter referred to as the “SUA Convention”.
13 After the Portuguese seized Malacca in 1511, they occasionally loot and extort money from all the vessels bound for or coming from China’s port.
Xu Ke, ‘Contemporary maritime piracy in Southeast tankers and deploy them as “floating bombs” in the major ports, or sink hijacked ships to disrupt vessel traffic in the Straits of Malacca and Singapore (SOMS) which serve as a vital arteries of global commerce’.
15 In view of Indonesia, the waters near the country’s Riau Archipelago has become risky for navigation, while the ports of Tanjung Priok (Jakarta, Java), Dumai, Belawan (Sumatra), Balikpapan and Samarinda (Kalimantan) are prone to piracy attacks (note that piracy in this paper includes armed robbery against ships), especially when the vessels are at anchor.16 As an example of a typical piracy incident in Indonesia, the robbery of the Chemical Tanker Siteam Neptun, on 1 February 2012 at Batam Outer Anchorage (Riau Archipelago) occurred in the night.
The pirates boarded the ship, stole ship’s stores, and left the vessel without being seen.17 Whereas piracy affects the exportation of natural resources from Indonesia as oil and gas tankers are attacked, 18 it potentially poses a threat to the export of craft items, including the importation of raw materials needed in Indonesian craft industry.
Besides, piracy in the archipelagic waters of Indonesia affects tourists’ use of international cruise ships to visit the country for tourism.
This paper further argues that piracy potentially poses a threat to Asia’, a thesis submitted for the Degree of Doctor of Philosophy Southeast Asian Studies Programme, National University of Singapore, 2006, 36-37.
See also Lukasz Stach, ‘Neverending story?
Problem of maritime piracy in Southeast Asia’, (2017) 7(12) International Journal of Social Science and Humanity 723, 723-724.
14 L. Stach, ibid.
15 Ian Storey, ‘Addressing the persistent problem of piracy and sea robbery in Southeast Asia’, (2016) 30 Perspective, (ISEAS – Yusof Ishak Institute), 2.
16 Carolin Liss, ‘Assessing contemporary maritime piracy in Southeast Asia: trends, hotspots and responses’, Peace Research Institute Frankfurt (PRIF), PRIF Report No.
125, 2014, 18.
17 Ibid.
See also the ICC/IMB Piracy and armed robbery against ships: report for the period 1 January – 31 December, January 2020, hereafter referred to as the ICC/IMB Piracy Report for 2019, 19.
18 Peter J. Maslanka, ‘Securing Indonesia’s energy future’, (2015) 1 Journal of Energy Security, 9-10.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 4 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry the development of marine tourism in Indonesia.
Consequently, Briandana, et al, observe that ‘Indonesia has 17,499 island with a total beach length of …81,000 km… which creates great potential for marine tourism in its territory’.
19 In view of that, Indonesian government policy to strengthen maritime tourism to bolster its economic development20 will be derailed due to piracy off the coast of Indonesia.
Against this backdrop, this paper argues that strengthening the legal regime and adopting a proactive monitoring of Indonesian waters will go a long way in preventing piracy and its effects on the craft industry in the country.
Thus, the paper will interrogate piracy off the coast of Indonesia, review Indonesian craft industry, and subsequently address the linkages between piracy and the craft industry in Indonesia.
According to this author, it appears that sufficient conditions suggest that piracy may implicate on the craft industry in Indonesia as factors exist that make the craft industry vulnerable to piracy off the coast of Indonesia.
Further, the paper will assess the legal regime for suppressing piracy in Indonesia and argue that the government of Indonesia should not only review its law to reflect the position under international law but also enforce them to repress the maritime crime.
Subsequently, the paper will address the issues of causes and effects of piratical acts in Indonesia and suggest measures to repress piracy in the country.
The paper is concluded by reiterating the importance of a secured maritime environment in the development and growth of the craft industry as an integral part of the economic development of Indonesia.
II.
LEGAL MATERIALS AND METHODS This paper uses the statute approach to assess the legal regime for suppressing piracy in Indonesia.
The legal materials used in this paper include Indonesian criminal code, SUA Convention, LOSC, and Indonesian piracy regulations.
Moreover, to achieve the objective of this research, the paper interrogates piracy off the coast of Indonesia, reviews Indonesian craft industry, and addresses the linkages between piracy and the craft sector in Indonesia, especially through tourism.
It is observed that circumstances exist which suggest that piracy may pose a threat to Indonesian craft industry.
III.
RESULT AND DISCUSSION Domestic and regional piracy attacks off the coast of Indonesia Figure 1.
Attacks by regions Source (Tumbarska, 2018, 19) 19 Rizki Briandana, et al, ‘Promotion analysis of marine tourism in Indonesia: a case study’, (2018) XXI (1) European Research Studies Journal, 602.
20 A.B.
Sulistiyono, et al, ‘4M study to support Indonesia’s maritime tourism development’, (2017) 11(4) The International Journal on Marine Navigation and Safety of Sea Transportation, DOI: 10.12716/1001.11.04.20, 723, 724.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 5 Figure 2.
Share of attacks by countries on the total world attacks (2008-2017) Source (Tumbarska, 2018, 19) Table 1.
Attacks by regions Region 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 SE Asia 54 45 70 80 104 128 141 147 68 76 East Asia 11 23 44 23 7 13 8 31 16 4 Indian Sub-cont 23 29 28 16 19 26 34 24 17 15 South America 14 37 40 25 17 18 5 8 27 24 Africa 189 266 259 293 150 79 55 35 62 57 Rest of World 2 6 4 2 0 0 2 1 1 4 Total 293 406 445 439 297 264 245 246 191 180 Source (Tumbarska, 2018, 19) a. Piracy off the coast of Indonesia In light of the foregoing, it is argued that Indonesia is one of the most important maritime countries in the world, especially when considered from its vintage geographical location.
For example, Indonesia is situated between the Pacific and Indian Oceans, providing a central intersection for global shipping through the Strait of Malacca: ‘a major shipping channel through which a large share of Asia’s trade flow’.
21 As the largest archipelago with thousands of islands and approximately eight million square kilometres of sea area, 22 it is imperative for the government of Indonesia to secure these vast maritime areas to encourage the movement of tourists, craft items, and raw materials and equipment for producing craft items from one Island to another; including from Indonesia to other countries.
21 Lyle J. Morris & Giacomo P. Paoli, A preliminary assessment of Indonesia’s maritime security threats and capabilities (Rand Corporation, 2018), 15.
It is common knowledge that the spate of contemporary piracy in Southeast Asia commenced as a result of the economic challenges in the region.
In fact, consequent upon the 1997-1998 Asian financial crisis, a lot of the riverine communities, especially from Indonesia and Thailand, witnessed an unprecedented level of unemployment and poverty.
Additionally, there was stagnation in the government revenues of Southeast Asian countries which exacerbated the economic challenges in the region.
And in Indonesia, the country’s economic downturn culminated to the overthrow of President Suharto in 1998, ‘ushering in a period of political turmoil and lawless in parts of the country.
In these conditions, organized crime and piracy began to spread.’ 23 Evidently, these factors contributed to the strengthening of piracy off the coast of Indonesia.
22 Ibid.
23 Miha Hribernik, ‘Multilateral counter-piracy cooperation in Southeast Asia: the role of Japan’, Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 6 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry It has been argued that the nature of Asian piracy is undergoing a transformational stage24 which could affect the exportation of exquisite craft items and the importation of raw materials and equipment needed in the craft industry in Indonesia.
Moreover, the movement of tourists from one Island to another, the use of international cruise ship by tourists to visit tourist destinations in Indonesia, and marine tourism will be hampered by piracy.
Hence, Hribernik observes that piracy in Southeast Asia may ‘become an increasing threat to freedom of navigation and the free flow of goods and commodities, which are transported in and out of Asia and across the globe’.
25 So, this paper argues that if unchecked, Indonesian piracy will render the efforts of Indonesian government to enhance the craft industry, promote tourism and the creative economy, and bolster the maritime sector of the country nugatory.
In concluding this subhead, it is pertinent to analyse available data to explain the nature of Indonesian piracy and why it poses a threat to the country’s craft industry.
A glean at the ICC/IMB 2018 and ICC/IMB 2019 piracy reports reveal that from 2014 till 2019, the number of actual and attempted piracy off the coast of Indonesia is 100 (2014), 108 (2015), 49 (2016), 43 (2017), 36 (2018), 26 and 25 (2019).27 This author observes that though the number of actual and attempted piracy attacks is dwindling, the waters of Indonesia remain dangerous for navigation.
More so, compared to other Southeast Asian countries, piratical acts off the coast of Indonesia remain rife (see Figure 2 above).
The import of this is that the exportation of Indonesian craft items and the importation of raw materials by Indonesian (2017) 17(3) Pacific Forum CSIS Issues & Insights, Honolulu, Hawaii, March 2017, 4.
24 Ibid at 8.
25 Ibid at 9.
26 ICC International Maritime Bureau (IMB) ‘Piracy and armed robbery against ships: report for the period 1 January – 31 December 2018’, January 2019, hereafter referred to as the ‘ICC/IMB Piracy Report for 2018’, 6.
27 ICC/IMB Piracy Report for 2019, 5. craft industry may be jeopardised, especially when juxtaposed with the changing nature of piracy in Southeast Asia.
Also, piracy impedes tourism by adversely affecting the movement of tourists not only from one Island to another in Indonesia but from other countries to Indonesia.
It is submitted that piracy also affects marine tourism in the country.
And from a broader perspective, Indonesian piracy will impede the realisation of the President’s policy of ‘reinvigorating Indonesia’s maritime identity, managing the country’s marine resources, strengthening its maritime defence capability, intensifying maritime diplomacy, and improving interisland connectivity’.28 b.
Regional piracy Having briefly addressed piracy off the coast of Indonesia, it is necessary to highlight some of the activities of pirates at the regional level, especially in Southeast Asia (see Table 1 above).
It is beyond any contestation that piracy is rife in Southeast Asia which involves opportunistic sea-robbery of small-scale attacks and sophisticated organised acts directed to hijacking vessels.
These piratical acts in this region have been linked to the exploitation of the security limitations in the maritime environment and the existence of political, social, and economic challenges that create an enabling environment for piracy to thrive.
In fact, it is argued that the following factors contributed to piracy in the region, to wit, over-fishing, lax maritime regulations, the existence of organised crime syndicates, the presence of radical politically motivated groups, and widespread poverty.29 From a global standpoint, the hijack of the Sirus Star off the Kenyan coast by Somali 28 Dedi Dinarto, ‘Indonesia’s blue economy initiative: rethinking maritime security challenges’, RSIS Commentary No.
206, 1 November 2017 <https://www.rsis.edu.sg/wpcontent/uploads/2017/11/CO17206.pdf> accessed 26 July 2019.
29 “The roots of piracy in Southeast Asia”, APSNet Policy Forum, 22 October 2007, 2 https://nautilus.org/apsnet/the-roots-of-piracy-insoutheast-asia/ accessed 26 July 2019. https://www.rsis.edu.sg/wp-content/uploads/2017/11/CO17206.pdf https://www.rsis.edu.sg/wp-content/uploads/2017/11/CO17206.pdf https://nautilus.org/apsnet/the-roots-of-piracy-in-southeast-asia/ https://nautilus.org/apsnet/the-roots-of-piracy-in-southeast-asia/ Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 7 pirates on the 17th of November 2008 signalled not only the economic impact of piracy but also the vulnerability of vessels navigating through global sea routes.
30 Consequent upon the success of global piracy, the number of hijacked ships, kidnapped crews, expensive ransom negotiations, and loss of life became increasingly high.
And as observed by Burlando, et al, ‘(a)s merchant ships are attacked and trade flows disrupted, the cost of transporting goods through pirate waters increases, possibly discouraging trade through these regions.’31 A cursory look at Figure 1 and Table 1 above shows that piratical attacks are rife in Africa and Southeast Asia.
It is interesting to note that in Africa, the Gulf of Aden and the Gulf of Guinea are piracy hotspots.
Although the Gulf of Aden was once the most piracy infested water in the world for many years, the Gulf of Guinea is presently the most dangerous navigational route in the world, especially the waters of Nigeria.
Like the Gulf of Aden, Southeast Asia also witnessed an increase in piracy attacks, which has subsequently gone down.
However, from the perspectives of states, the coast of Nigeria currently remains the most dangerous waters in the world.32 In closing, a careful assessment of Figure 2 above reveals that the coasts of Nigeria and Indonesia are inundated with piracy activities.
Overview of the craft industry and its linkages to piracy in Indonesia a. Indonesian craft industry Figure 3.
Indonesian craft exports Source (“Indonesia sourcing: craft gift 2018”, 2019, 7) 30 Jill Harrelson, “Blackbeard meets blackwater: an analysis of international conventions that address piracy and the use of private security companies to protect the shipping industry”, 5(2) American University International Law Review, 283, 284 (2010).
31 Alfredo Burlando, et al, “The trade consequences of maritime insecurity: evidence from Somali piracy”, Munich Personal RePEc Archive (MPRA), 24 October 2014, 2.
32 The ICC/IMB Piracy Report for 2019, 5.
198 167,7 163,4 153,3 2014 2015 2016 2017 Export value $ million Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 8 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry Figure 4.
Indonesian export by products Source (‘Indonesia sourcing: craft gift 2018’, 2019, 7) Figure 5.
Indonesia: Direct Contribution of Travel & Tourism to GDP Source (Travel & tourism, 2018, 3) In light of the diverse ethnic nationalities in Indonesia, there are many cultures, languages, cultural heritage, and crafts in the country.
In fact, each ethnic group has its unique crafts.
For example, whereas the Batak ethnic group is known for their Batak Toba traditional houses, ulos (textile weaving), padung-padung (traditional jewelries: metal craft), the Javanese are globally known for their batik textile crafts.
The exportation of these crafts contributes to the economic development of Indonesia.
ure 3 above reveals the export values of most of Indonesian crafts from 2014 to 2017 and Figure 4 above also throws more light on the export value of the different crafts in Indonesia.
Reflecting on piracy, this author argues that if left unchecked, 33 For example, the government of Indonesia has created many policies to boost the batik industry in the country.
See generally, Christina Tri Setyorini, et al, ‘Strengthening the internal factors of Batik cluster the current maritime insecurity off the coast of Indonesia due to the activities of pirates will adversely implicate on the exportation of these craft items with its attendant effect on Indonesian economy.
The import of the existence of these crafts (see Figs.
3 & 4 above) is that there are many artisans in Indonesia and the government of Indonesia has continued to support the craft industry through policies and programmes.
Some of the mechanisms utilsed by the Indonesian government to achieve this goal is through the introduction and support for craft small and medium enterprise (SMEs), 33 promotion of the tourism sector, and introduction and support of the creative economy.
The hallmark of the craft industry in SMEs in Indonesia: a case of six districts in SouthCentral Java’, (2013) 3(1) International Journal of Business, Humanities and Technology 21, 21-28.
Original sculptures & statuary; 1% Ornamental ceramic articles; 4% Paintings, drawings & similar articles; 5% Base metal ornaments; 6% Basketwork & similar articles; 40% Wooden ornaments; 44% Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 9 Indonesia is the recognition of batik as the cultural heritage of the country by United Nations Educational, Scientific and Cultural Organisation (UNESCO) on the 2nd of October 2009.
34 Lending credence to the importance of craft in Indonesia, the government of Indonesia introduced a strategy to promote batik as a soft power instrument in Southeast Asia (batik diplomacy).35 Closely linked to the foregoing is the pivotal role the craft industry plays in both the tourism sector and the creative economy in Indonesia.
Consequent upon the diverse ethnic groups and cultural heritage in Indonesia, there are many tourist sites where craft products are sold as souvenirs to both local and international tourists in Indonesia.
36 Thus, statues, woodcarvings, metal carvings, paintings, batik textile (including other batik items like bags), ulos, and earthenware are some of the items that are exported to other countries and also sold as souvenirs to tourists in Indonesia.
The inclusion of craft as part of the creative economy in Indonesia has led to the promotion and support for the production and marketing of craft items in the country.37 Figure 5 above reveals the linkage between tourism and travel and their impact on the Indonesian economy as well as the exportation of craft items.
34 See Asri Laksmi Riani, et al, ‘The acceleration of traditional Batik (creation and combination) through integrated management to support the acceleration in regional economic development’, (2016) 4(4) Strategic Management Quarterly DOI: 10.15640/smq.v4n4a4, 53, 54.
35 Syaprin M. Zahidi, ‘Batik as Indonesian public diplomacy in ASEAN Economic Community (AEC)’, (2017) 3(2) International Journal of International Relations, Media and Mass Communication Studies 1, 8.
36 Currently, I am in possession of a brochure containing the cultures and cultural heritage cites in Sumatra that attract tourists to the area.
See generally, Historical & Culture, Sumatera Utara e-Brochure.
(Copy of this material is on file with this author).
37 Iwan K. Subagja, ‘Creative industry competitiveness in Indonesia (study on creative industry map)’, International Conference on Sustainable Development Goals 2030 Challenges and its Solutions, 11-12 August 2017, pp.
157-159.
Specifically, piracy poses a threat to leisure crafts and yachts that may be used to navigate to Indonesia for tourism and other reasons.38 Consequently, due to the threat posed by pirates to navigation, those engaged in leisure sailing (cruise ships and yachts) in high risk waters have been enjoined to make contact in advance with the naval/military authorities.
The implication of this is that piracy is a potential threat to their safety.39 With the target of the Indonesian government to attract about 20 million tourists to the country which is facilitated by the growing creative economy, this paper observes that piracy may impede the realisation of this target.
b.
The linkages between Indonesian craft and piracy It is acknowledged that piracy may be executed by individuals engaged in periodic acts.
Nevertheless, it ‘can also involve small and medium-sized groups with substantial, hierarchical organizational structures’.
40 Research suggests that collusion between pirates and government authorities contributes to the growing incidents of piracy in Southeast Asia.
41 Instances abound where corrupt customs officials, port employees, or crewmembers divulge information on vessels 38 See Nebojsa Nikolic & Eduard Missoni, ‘Piracy on the high seas-threats to travelers’, (2014) 20(5) Journal of Travel Medicine, DOI: 10.1111/jtm.12051, 313, 3143-315.
BMP 4, Best Management Practices for Protection Against Somalia based pirates, (Version 4 – August 2011, Whiterby Publishing Group Ltd, 2011) 71.
39 See BMP 4, ibid and N. Nikolic & E. Missoni, ibid.
Some of the rare craft items acquired by tourists are exported through the sea.
For more detailed analysis of tourism and traveling in Indonesia, see generally, Travel & tourism: economic impact 2018 Indonesia, (World Travel & Tourism Council, March 2018).
40 Ursula E. Daxecker & Brandon C. Prins, ‘The politicization of crime: electoral competition and the supply of marine piracy in Indonesia’, (2016) 169 Policy Choice, DOI 10.1007/s11127-016-0374-z, 375, 378.
41 Justin V. Hastings, ‘Understanding maritime piracy syndicate operations’, (2012) 21(4) Security Studies https://doi.org/10.1080/09636412.2012.734234, 683, 689.
See ibid at 379. https://doi.org/10.1080/09636412.2012.734234 Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 10 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry and cargo manifests to pirates, coupled with the existing ties between criminal actors and various levels of the state bureaucracy that served as a form of regime maintenance.42 This paper argues that under these circumstances, it will be easy for pirates to obtain information about vessels carrying exquisite crafts items from Indonesia to other countries and hijack the vessels for the purposes of selling the cargo in the black market.
As a corollary to the above, it appears that a crewmember or crewmembers could provide information about the cargo of a vessel and further proffer steps to selectively open containers or holds, especially where there are high value cargoes on board.
This implies prior knowledge of the cargo manifest and it confirms the connection between pirates and seafarers.
This act may also be executed by perpetrators who ‘previously had access to the ship as employees of a shore-based contractor’.43 In relation to the craft industry, the clearing and forwarding agent or port official with the knowledge of the value of the craft items for exportation or imported expensive equipment and raw materials needed in craft production may be the person leaking information to the pirates.
In his view, Bateman stated the inconvenient truth about piracy which lends credence to the linkage between piracy and the craft industry by observing that aside from pirates, other organisations benefit ‘from piracy and exploit the threat of piracy to promote their own interests.’ 44 Using piracy and the craft industry in Indonesia as a case study, it is significant to note that there may be some artisans who would connive with pirates 42 Daxecker & Prins, above n 36.
43 Catherine Z. Raymond, Piracy in Southeast Asia: new trends, issues and responses (Institute of Defence and Strategic Studies No.
89, Singapore, October 2006) 4.
44 Sam Bateman, ‘Sea piracy: some inconvenient truths’, 2010, 14 <https://www.peacepalacelibrary.nl/ebooks/files/U NIDIR_pdf-art2960.pdf> accessed 31 July 2019.
45 For linkage between piracy and election that could lead to political and civil unrests due to election in to hijack vessels carrying craft products, raw materials and equipment for craft production due to either being unsuccessful in their craft production because stiff competition from both local and international craft companies or dissatisfied with the policies and programmes of the government and the craft industry.
Moreover, such dissatisfied artisans may engage in piracy to hijack vessels conveying craft items from Indonesia to other countries or ships bringing raw materials and equipment needed in craft production from other countries to Indonesia.
Further, in linking piracy to the craft industry in Indonesia, it becomes necessary to consider the motives behind piracy and the economic factors that engender the crime.
It is a widely known fact that poverty, loss of jobs, especially by fishermen, and civil and political unrests are some of the factors that lead to piracy.45 The loss of jobs by fishermen or the decline of profit in the fishing industry could trigger fishermen to become pirates in Indonesia.46 Also, income inequality could be an incentive for Indonesian pirates to hijack container vessels with rare craft items as cargo.
Thus, it has been opined that the ‘multi-faceted interaction between piracy and trade …calls into question the notion of the pirates as a mere predator, feeding parasitically off the toil and enterprise of others’.
47 Further, it has been observed that piracy is ‘not apart from but a part of the economies of trade and seafaring.
Pirates, like merchants, responded to market signals and economic incentives, and performed regular transitions from one form of maritime activity to another.’48 Indonesia, see generally, Daxecker & Prins, above n 36, 375-393.
46 For the impact of the decline in the profitability of fishing as coterminous to piracy in Indonesia, see generally Sebastian Axbard, ‘Income opportunities and sea piracy in Indonesia’, (2016) 8 (2) American Economic Journal: Applied Economics, 154, 154194 47 Sebastian R. Prange, ‘Asian piracy’, (2017) Indian Ocean Studies, DOI: 10.1093/acrefore/9780190277727.013.32, 1, 4.
48 Ibid.
https://www.peacepalacelibrary.nl/ebooks/files/UNIDIR_pdf-art2960.pdf https://www.peacepalacelibrary.nl/ebooks/files/UNIDIR_pdf-art2960.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 11 Another plausible reason to suggest a connection between piracy and the craft industry in Indonesia is the nature of bureaucracy that operates in the country’s maritime domain consequent upon the number of government institutions monitoring activities in the maritime sector in the country.
Against this backdrop, Suseto, et al observe that the ‘mushrooming of illegal activities at sea is also due to inefficient bureaucracy practiced in Indonesia.
There is simply too many departments involved in handling illegal activities at sea.’ 49 For example, there are about 12 maritime agencies in Indonesia with overlapping jurisdictions.
However, BAKAMLA (Badan Koordinasi Keamanan Laut) (Indonesian Maritime Security Coordinating Agency), which was established in 2014, is the coordinating institution for these agencies.50 This situation creates an enabling environment where bribery and corruption fester and facilitate the leaking of information about the worth of craft items and the vessel conveying them from the authorities to pirates.
In furtherance of the above, it is submitted that the separatist group, Gerakan Aceh Merdeka (GAM), engages in piracy and other illicit activities like illegal logging and mining, organised prostitution, drug production and distribution and gambling.
51 Against this backdrop, it will be easy for GAM members to use their contacts from both the government and the private sector to be apprised of the exportation of exquisite 49 Such government institutions include National Coordinating Body for Ocean Safety; the National Coordinating Body for Ocean Safety; the Ministry of Marine Affairs and Fisheries; the Ministry of Forestry; the Ministry of Energy and Mineral Resources; the Ministry of National Education, the Ministry of Transportation and Communications; the State Ministry for Environment; the Indonesian Navy; the Indonesian Air Force; the Marine Police; the Directorate General of Immigration; and the Directorate General of Customs.
See Buddy Suseto, et al, ‘The need to reform Indonesia’s maritime strategy: a review’, (2018) 50(2) Indonesian Journal of Geography.
DOI: http://dx.doi.org/10.22146/ijg.27954, 145, 149.
50 Muhamad Arif & Yandry Kurniawan, ‘Strategic culture and Indonesian maritime security’, (2018) Indonesian craft products or the importation of raw materials required in the production of Indonesian crafts.
More so, given the fact that most of the piracy acts off the coast of Indonesia are opportunistic in nature, GAM may inadvertently target and hijack vessels carrying Indonesian craft items, thereby affecting the revenue derivable from the sale of the items in the global craft market.
At this juncture, the inability of the government of Indonesia to effectively optimise the abundant marine resources also create a conducive environment where pirates can hijack vessels with craft items as cargo.
It must be emphasised that waters ‘between and surrounding Indonesia’s islands have yet to be used as modality to secure territorial integrity and national economic development.’ 52 The obvious vulnerability of Indonesian waters encourages criminal elements to ‘exploit the lack of defence to smuggle goods and people to and from Indonesia and involve in other transnational criminal activities.’ 53 The susceptibility of Indonesian maritime sector is worsened by ‘the government’s stance to reject the presence of external powers despite the lack of operational capabilities of the country’s maritime security apparatus.’ 54 The implication of this situation is that pirates can hijack vessels carrying craft items or equipment or raw materials needed for craft production in order to sell them at the black market.
5(1) Asia & The Pacific Policy Studies, doi: 10.1002/app5.203, 77, 87.
Hadyu Ikrami & Leonardo Bernard, “Indonesia’s maritime law: national enforcement & regional cooperation”, 5th APOLIA Conference, 16 June 2017, Da Nang, Vietnam <https://cil.nus.edu.sg/wpcontent/uploads/2017/08/Ikrami_Bernard_2017APOLIA-Conference_FINAL.pdf> accessed 30 November 2019.
51 Senia Febrica‘Explaining Indonesia’s participation in maritime security cooperation’, (submitted in fulfillment of the requirements for the degree of Ph.D, School of Social Sciences, University of Glasgow, 2014), 61-62.
52 M. Arif & Y. Kurniawan, above n 50 at 80.
53 Ibid.
54 Ibid.
http://dx.doi.org/10.22146/ijg.27954 https://cil.nus.edu.sg/wp-content/uploads/2017/08/Ikrami_Bernard_2017-APOLIA-Conference_FINAL.pdf https://cil.nus.edu.sg/wp-content/uploads/2017/08/Ikrami_Bernard_2017-APOLIA-Conference_FINAL.pdf https://cil.nus.edu.sg/wp-content/uploads/2017/08/Ikrami_Bernard_2017-APOLIA-Conference_FINAL.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 12 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry c. Logistics, craft, and piracy in Indonesia It is beyond any contestation that through transportation, logistics plays a key role in the tourism industry.
As an essential component of the tourism industry and its development, security in transportation plays a significant role in influencing the satisfaction of tourists with the tourist destination.
55 This is in line with Indonesian government policy for national logistic system achievement56 which will promote the economic and infrastructural development of the country as well as enhance the movement of tourists from one island to another.
Additionally, a secured transport system facilitates the exportation of Indonesian crafts and the importation of raw materials and equipment for craft production.
More so, the existence of about 30 main ports, 200 collector ports, and 1,000 feeder ports in Indonesia is a testament of the importance of maritime transportation to the country.
57 These ports are central to the movement of people and cargo from one Indonesian island to another and from one country to Indonesia (also from Indonesia to other countries).
The import of this is that foreign tourists visiting Indonesia through the sea on cruise ship may navigate through Indonesian waters and berth at the country’s ports.
On account of piracy, such trip will be prone to the threat of piracy attacks.
58 More importantly, owing to Indonesian government efforts to develop the craft industry, it becomes necessary to export Indonesian crafts to other countries, while importing from other countries raw materials and state of the art facilities required for the production of Indonesian crafts.
These economic activities 55 Anjali R. Virkar & Prita D. Mallya, ‘A review of dimensions of tourism transport affecting tourist satisfaction’, (2018) IX(1) Indian Journal of Commerce & Management Studies DOI: 10.18843/ijcms/v9i1/10, 72.
56 Presidential Regulation No.
26, 2012.
See also John Malisan, Intermodal integration in Indonesia, Research & Development Agency, Ministry of Transportation <http://www.uncrd.or.jp/content/documents/7ESTP3-3.pdf> accessed 5 September 2019. maybe encumbered by piracy off the coast of Indonesia.
Given the economic importance of craft industry in the economy of Indonesia (see Figs.
3 & 4 above) and the recurring piratical acts off the waters of Indonesia (see Figure 2 above), it becomes imperative for Indonesian government to suppress piracy.
It is argued that if piracy remains unchecked in the waters of Indonesia, it will grossly implicate on marine tourism, movement of tourists from one Indonesian island to another, including from one country to Indonesia, and importation of raw materials (including the exportation of craft products to the global craft market).
Against this backdrop, the legal framework for tackling Indonesian piracy is robustly analysed below with a view to identifying lacunae in the antipiracy measures and subsequently proffer steps to take to repress the maritime crime in the country.
Legal framework for curbing piracy off the coast of Indonesia a.
International regime Under international law, piracy consists of any illegal acts of violence committed for private ends by the crew or the passengers of a private ship on the high seas, against another ship outside the jurisdiction of any state.
59 Among many limitations, it is observed that the above piracy definition applies only to the acts committed on the high seas or places outside jurisdiction of states.
Consequently, it is argued that the geographic limitation of the definition excludes other features of modern piracy which sometimes occur both on the high seas and territorial waters of a state (especially at anchorages and ports).
57 Kazunobu Hayakawa, et al, Transportation costs in archipelagos: evidence from Indonesia (Institute of Developing Economies (IDE) Discussion Paper No.
756, 2019) 4.
See also Kang H. Leung, Indonesia’s summary transport assessment (ADB Papers on Indonesia No.
15, August 2016) 4.
58 The threat to navigation also includes tourists moving from one Indonesian island to another.
59 LOSC, art.
101. http://www.uncrd.or.jp/content/documents/7EST-P3-3.pdf http://www.uncrd.or.jp/content/documents/7EST-P3-3.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 13 Beyond the fact that most data about piracy reveal acts of piracy and armed robbery against ships without distinguishing them, IMB defines piracy as ‘any act of boarding or attempting to board any ship with the apparent intent or capability to use force in the furtherance of the act.’60 This definition is apt in view of the nature of attacks against ships which mostly occurs off the coast of Indonesia and the need to assess the implications of piracy.
For instance, piracy attacks in the waters of Indonesian involve ordinary forms of piracy and more sophisticated types, targeting stationary and anchoring vessels in crowded sea lanes as well as vessels sailing through narrow seas with many islands and heavy vessel traffic.
Since Indonesia continues to be affected by piracy, it becomes imperative to have a comprehensive legal regime to secure sea-lanes for shipping as well as transhipment which remains a crucial part of the country’s blue economy.61 To cure the territorial limitation in LOSC definition of piracy, the SUA Convention 62 introduced no territorial strictures in the occurrence of piratical acts.
Nonetheless, the SUA Convention did not extend universal jurisdiction to such attacks.
It gives State Parties to the convention the power to prosecute people caught in their own territorial waters of acts of piracy committed in another country’s jurisdiction.
63 Also, it proffers extradition powers for the transfer of pirates from the arresting country to another country for the prosecution of the arrested pirates.
64 This paper argues that the existence of the LOSC and the SUA Convention provides the legal framework for the government of Indonesia to repress piracy off its coast, especially in view of the potential threat of 60 Anamika A. Twyman-Ghoshal & Glenn Pierce, ‘The changing nature of contemporary maritime piracy’, (2014) Brit.
J. Criminol, doi:10.1093/bjc/azu019, 652, 653, quoting the IMB.
61 D. Dinarto, above n 28.
62 See also the Protocol of 2005 to the Convention for for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 14 October 2005. piracy to tourism and the craft industry in the country.
b.
National Regime It is imperative to state that domestic legal regime for suppressing piracy depends on countries ratifying and incorporating into their domestic laws conventions that criminalise piracy.
This can be done through a monist system in which the convention becomes part of the domestic laws of the country or a dualist system which, on the other hand, requires the enactment of the convention into a domestic law.
More so, incorporation of conventions into domestic legislation can be done through formal adoption vide parliamentary procedure, among other ways.
65 It is observed that the Indonesian constitution is silent on the relationship between conventions and domestic laws.
In all, Pulungan submits that ‘an examination of Indonesian practice shows inconsistency in state practise when it comes to treaty implementation’,66 which implicates on the enforceability of both the LOSC and the SUA Convention in the country.
In light of the foregoing, Indonesia has not only ratified the LOSC in Law No.
17 of 1985, but also issued a range of laws and regulations to implement the Convention.
67 For example, Law No.
6 of 1996 concerning Indonesian Waters; Law No.
17 of 2008 concerning Shipping; and Law No.
31 of 2004 concerning Fisheries as amended by Law No.
45 of 2009 were all enacted to adopt some of the provisions of the LOSC.
Despite the above legislation, it is submitted that, presently, there is no law in Indonesia ‘specifically implementing the LOSC provisions on piracy contained in articles 100-105.68 Notwithstanding the lack of law adopting the provisions of the LOSC on piracy in 63 SUA Convention, arts.
1, 4 and 6.
64 Ibid, arts.
6, 8 and 10.
65 R. W. Pulungan, above n 10 at 126.
66 Ibid.
67 Ibid at123.
68 Ibid at 124.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 14 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry Indonesia, the government of Indonesia, under its domestic law, criminalises piracy.
Under Chapter XXIX titled “Crimes relating to navigation”, the Indonesian Penal Code (known as Kitab Undang-undang Hukum Pidana KUHP), which is under review, provides, inter alia, for unlawful seizure of an Indonesian ship.
69 In fact, from articles 438448, the KUHP makes elaborate provisions on piracy.
For example, the KUHP provides for various acts of violence in articles 438-441 and prescribes 10 to 15 years imprisonment as punishment for these offences.
Though it can be argued that the KUHP has expansive piracy provisions, a cursory look at the KUHP reveals that the “high seas” factor and the doctrine of universal jurisdiction are conspicuously missing.70 While this paper observes that there is an attempt to review the KUHP, 71 it is important for the government of Indonesia to effectively implement the extant law.
c. Soft laws It is trite that the United Nations General Assembly through its resolution advocated for cooperation at regional, multilateral, and bilateral levels in combating piracy.72 The key role regional cooperation plays in the fight against piracy has been given a fillip by the enactment of the International Maritime Organisation’s (IMO) Code of Practice for Investigation of Crimes of Piracy and Armed Robbery against ships.
Through the code, IMO shares its concern about piracy and urges states 69 KUHP, art.
448.
For the application of the KUHP in piracy cases in Indonesia, see the cases of District Court Decision No 600/Pid.B/2015/PN Sgl.
3 December 2015 and District Court Decision No 524/Pid.B/2014/PN.BTM, 4 November 2015 cited in Adam J. Fenton & Ioannis Chapos, ‘Prosecuting pirates: maritime piracy and Indonesian law’, 19(1) Aust.
J. Asian L., 5-11.
70 R. W. Pulungan, above n 10 at 125.
71 See generally, Rachel Octora, ‘Renewal of criminal law: draft of Indonesian criminal code, spirit of codification and its effects on law harmonization’, (2016) 46(3) Journal Hukum & Pembangunan 214, 214-232.
72 See generally, The United Nations General Assembly, Resolution adopted by the General to create and produce agreements as a tool to cooperate and combat piracy as well as armed robbery against ships.73 In spite of the above support for regional cooperation, the existence of Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP), and the consequences of piracy on the country, Indonesia is not part of ReCAAP which was established to combat piracy in Asia.
Given the fact that ReCAAP has shown keen interest in securing safe navigation in Asian waters and safeguarding the global shipping industry through collective efforts, it is argued that the government of Indonesia should join the anti-piracy group to secure its maritime domain with its attendant protection of the export and import sectors.
This will ultimately prevent pirates from attacking vessels carrying craft items or raw materials and equipment needed for craft production.
Moreover, as a model for regional cooperation, 74 coupled with the inability of Indonesia to suo motu suppress piracy off its coast due to the vexed issue of sovereignty over the waters of the archipelago,75 this paper submits that ReCAAP could immensely facilitate and contribute in curbing piracy, especially in the Strait of Malacca.
Causes of piracy and the effects of piracy in Indonesia’s craft industry Under this subhead, the causes of piracy in the waters of Indonesia are reviewed.
This Assembly on 5 December 2008, A/RES/63/111, 12 February 2009.
73 IMO Code of Practice for Investigation of Crimes of Piracy and Armed Robbery against ships extends this concern and urged states to create and produce agreements as a tool to cooperate and combat piracy as well as armed robbery against ships, Resolution A.1025 (26) adopted on 2 December 2009 (Agenda item 10), A 26/Res.1025, 18 January 2010.
74 ReCAAP Information Sharing Center(ISC), Executive Director’s Report 2016, 1.
75 Shishir Upadhyaya, ‘Malacca Strait Security Initiative: potential for Indian navy’s participation in the evolving regional security environment’, (2009) 5(2) Maritime Affairs 47, 56.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 15 paper observes that the coast of Indonesia is the hub of piratical acts in Asia given its geographical feature as an archipelagic country, including the increasing number of ships that navigate through the Strait of Malacca, a choke point in the region.
This warrants vessels to lower their acceleration as they navigate through the sea route.
76 Young submits that piracy, particularly in Southeast Asia, is influenced by political, economic and social functions of the local people.
77 Hence, it is imperative to identify and address the causes of piracy in the waters of Indonesia and their consequences.
a.
Causes of piracy off the coast of Indonesia 1) Political unrest It is an open secret that the GAM plays a pivotal role in piracy attacks off the coast of Indonesia, especially in the Strait of Malacca.
It is submitted that other domestic conflicts also contribute to the rise of piracy in Indonesia.
Thus, the Papua separatist movement at the eastern end, the heightened religious conflict in Maluku and Poso, among others, created an enabling environment for piracy to thrive off the coast of Indonesia.78 More importantly, there is a suggestion that the GAM, which operates off North Sumatra, engages in piracy to finance its fight to create an independent Islamic state.
79 In view of these factors, the paper concludes that political unrest contributes in sustaining piracy acts off the coast of Indonesia.
76 Joanne M. Fish, , A cross-disciplinary approach to the maritime security risk of piracy and lessons learned from agent-based modeling (a dissertation submitted to the Faculty of Old Dominion University in partial fulfillment of the requirements for the degree of Doctor of Philosophy, International Studies, Old Dominion University, December 2017), DOI: 10.25777/spk1-5d03, 47.
77 Adam J.
Young, ‘Roots of contemporary maritime piracy in Southeast Asia’, in D. Johnson & M. 2) Asian financial crisis Undoubtedly, the 1997 Asian economic crisis played a role in the rise of contemporary piracy in Asia.
It is beyond any reasonable contestation that the financial crisis in Asia in 1997 culminated in high rate of unemployment and poverty as most business and financial transactions were put paid.
Moreover, the consequences of the financial crisis to the labour market in Indonesia extended to some subnational regions more than others.
Accordingly, in Indonesia, it has been reported that the impact was worst in Java, ‘where approximately two thirds of the population live and which was previously prosperous’, 80 thereby creating an enabling environment for piracy to thrive.
In view of that, it is submitted that one of the consequences of poverty and unemployment occasioned by the Asia financial crisis, especially in Indonesia, is piracy.
Thus, in a purported bid to eke out a living, some Indonesians, especially fishermen and the so-called freedom fighters, became pirates.
3) Poverty As discussed above, consequent upon the widespread poverty exacerbated by the 1997 Asian economic crisis, Baird argues that poverty played a contributory role in the rise of piracy with the purported attraction of quick gains for low risk.
81 It has been submitted that Indonesia was adversely affected by the financial crisis more than Valencia (eds.)
Piracy in Southeast Asia: status, issues and responses (ISEAS Singapore 2005) 2.
78 S. Febrica, above n 51 at 61-62.
79 R. W. Pulungan, above n 10 at 59.
80 James C. Knowles, et al., Social consequences of the financial crisis in Asia, (Economic Staff Paper No.
60, Asian Development Bank, 1999) 8.
81 Rachel Baird, Transnational security issues in the Asian maritime environment: fisheries and piracy, 2 <https://eprints.usq.edu.au/19493/1/Baird_ADF_20 10_PV.pdf> accessed 5 August 2019. https://eprints.usq.edu.au/19493/1/Baird_ADF_2010_PV.pdf https://eprints.usq.edu.au/19493/1/Baird_ADF_2010_PV.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 16 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry other Asian countries.
82 This situation was particularly common among fishermen, the GAM and other groups that purported to be fighting for the liberation of their members in Indonesia.
Moreover, a comprehensive research has found that poverty in the fishing subsector and piracy off the coast of Indonesia are interwoven, which suggests that when there is a depletion in the harvest of fish which leads to poverty among the fishermen, the fishermen become pirates to eke out a living.83 4) Unemployment Aside from poverty, one of the consequences of the 1997 Asian economic crisis was a heightened level of unemployment in Asia.
In view of Indonesia, the Asian economic crisis aggravated the level of unemployment in the country.
It was reported that due to the Asian financial crisis, there was ‘a dramatic rise in unemployment and 6.4 million people were laid off in 1998.’84 As observed by Hastings, ‘an increase in economic privation (such as through a downturn in the economy or a decrease in fishing stocks or unemployment 85 ) could lead to an increase in unsophisticated pirate attacks’ 86 , specifically in Indonesia.
It has been observed that the ‘roots of contemporary piracy…in Southeast Asia can be found in the socio-economic and political environments of the states in the region’ 87 which encouraged unemployment.
82 Reiny Iriana & Fredrik Sjoholm, ‘Indonesia’s economic crisis: contagion and fundamentals’, (2002) The Developing Economies 135, 135.
83 See generally, S. Axbard, above n 46.
84 Djoko Hartono & David Ehrmann, The Indonesian economic crisis and its impact on educational enrolment and quality, (Institute of Southeast Asian Studies, Singapore, No.
7, May 2001) 3.
85 The italicised words by this author.
86 Justin V. Hastings, The return of violent maritime organizations to Southeast Asia, 6 5) Inability to join ReCAAP It is observed that in spite of the general agreement that Southeast Asian maritime security is in the interest of all countries which presupposes a greater cooperation, there is a rift in the position of some of the countries that are greatly affected by piracy in the region.
This arises due to the penchant of some countries to manipulate the course of events in the region in their own interests.
Consequently, Teitler submits that the ‘reluctance of the countries in the region to co-operate against pirates, presents these rogues in effect with sanctuaries.
Too weak themselves to patrol extensive coastal areas in border regions;’ 88 it appears that Indonesian government, for example, has declined to permit navies from neighbouring countries entrance into its waters to engage in hot pursuit of pirate ships.89 6) Inadequate legal regime The pivotal role of having a comprehensive piracy legal framework in combating piratical acts cannot be taken for granted.
This arises as a result of the need to properly arrest pirates, prosecute them in local courts while protecting their fundamental human rights, and subsequently incarcerate them according to the punishment contained in domestic laws.
Despite the existence of the LOSC and the SUA convention in suppressing piracy, the government of Indonesia has not domesticated the provisions of these conventions.
While there are provisions <http://web.isanet.org/Web/Conferences/HKU2017 -s/Archive/bf3a2acd-a173-4d3e-8c50cd96d91773df.pdf> accessed 8 August 2019.
87 Roderick Chia, et al, Maritime predations in the Malacca Straits: treading new waters (Centre for Non-Traditional Security (NTS) Studies, NTS Insight, August/1, 2009), 3.
88 Ger Teitler, ‘Piracy in Southeast Asia.
A historical comparison’, (2002) 1(1) Mast 5, 73-74.
89 Ibid.
http://web.isanet.org/Web/Conferences/HKU2017-s/Archive/bf3a2acd-a173-4d3e-8c50-cd96d91773df.pdf http://web.isanet.org/Web/Conferences/HKU2017-s/Archive/bf3a2acd-a173-4d3e-8c50-cd96d91773df.pdf http://web.isanet.org/Web/Conferences/HKU2017-s/Archive/bf3a2acd-a173-4d3e-8c50-cd96d91773df.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 17 in the KUHP which crimminalise piracy and punish pirates, it is argued that these provisions are not within the ambit of contemporary piracy that occurs off the coast of Indonesia.
For example, the KUHP is conspicuously silent on piracy act that occurs on the high seas.
7) Weak maritime domain awareness Given the nature of Indonesia’s geographical location as a large maritime and archipelagic state in Asia, it becomes increasingly difficult for the country to effectively monitor its coast.
To adequately monitor the coast of Indonesia, funds, human resources, and state of the art facilities are required to have effective maritime domain awareness.
Consequently, in the absence of sufficient funds, inadequate trained human resources, and insufficient modern facilities in Indonesia, there will be weak maritime domain awareness within the coast of the country with its attendant effect on piracy in the region.90 This paper argues that the combined implication of the plethora of maritime agencies and inadequate funds and modern facilities in Indonesia is a dearth of maritime domain awareness which could incentivise the pirates with its attendant effect on the craft industry in the country.
8) Corruption In light of the above, it has been argued that to compensate for the government inability to fund maritime security in Indonesia, the security 90 he consequences of inadequate human and material resources to protect the coast of Indonesia have been a source of concern more than a decade ago.
See Hasjim Djalal, ‘Piracy in South East Asia: Indonesian & regional responses’, (2004) 1 (3) Indonesia Journal of International Law, 419, 422423.
91 Carolin Liss, The privatisation of maritime securitymaritime security in Southeast Asia: between a rock and a hard place?, (Asian Research Centre, Working paper No.
141, February 2007), 8. agencies have not only engaged in private enterprises but also involved in piracy.91 Corruption in Indonesia, which is rife and has amplified piracy in the region, takes place when corrupt customs officials, port employees, or crewmembers divulge information on ship movements and cargo manifests to pirates.92 It appears that corruption is the lubricant that oils the linkage between piracy and elections in Indonesia.
Aside from corrupt government officials that collude with pirates, corrupt seafarers, clearing agents, and port workers aid and abet pirates in perpetuating piracy acts off the coast of Indonesia.
This corrupt culture is, in part, facilitated by the number of government agencies operating in the maritime sector 93 that are susceptible to accepting bribes from pirates, thereby reducing the country’s ability to curb piracy.94 b.
Effects of piracy in the Indonesian craft industry 1) Humanitarian effect The grave experiences of seafarers and fishermen due to piracy off the waters of Indonesia cannot be overemphasised.
For instance, the release on the 19th of January 2019, two Indonesian fishermen who were held in captivity for over a year by the Abu Sayyaf Group (ASG) shows the humanitarian effect of piracy in Indonesia.95 Though it was reported that the crew did not suffer any injuries or there was no information to confirm that, 96 this paper argues that the 92 Daxecker & Prins, above n 40 at 379.
93 B. Suseto, above n 49.
94 L. Stach, above n 13 at 726.
95 ReCAAP/ISC, Annual Report 2018: Piracy and Armed Robbery against Ships in Asia, 3 January 2019, 16 <http://www.recaap.org/resources/ck/files/reports/a nnual/ReCAAP%20ISC%20Annual%20Report%20 2018.pdf> accessed 8 August 2019.
96 Ibid, at 35-36. http://www.recaap.org/resources/ck/files/reports/annual/ReCAAP%20ISC%20Annual%20Report%202018.pdf http://www.recaap.org/resources/ck/files/reports/annual/ReCAAP%20ISC%20Annual%20Report%202018.pdf http://www.recaap.org/resources/ck/files/reports/annual/ReCAAP%20ISC%20Annual%20Report%202018.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 18 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry psychological trauma of being abducted and treated inhumanely by pirates are some of the reasons to repress piracy in any region.
Regarding seafarers, on 5th December 2018, an Indonesian crew of fishing trawler was rescued by the Philippine authorities in Barangay Bual in Luuk, Luuk in Sulu.
97 According to report, 3 percent of Indonesian seafarers were exposed to piracy incidents in 2018.
98 Hence, if a cruise ship was hijacked off the coast of Indonesia, foreign tourists may be discouraged from visiting Indonesia for tourism with it attendant effect on the craft industry in the country.
2) Economic effect As stated above, report reveals that the complexity of shipping patterns and the nature of regional responses make it difficult to estimate aggregate cost of piracy in Southeast Asia, especially in Indonesia.99 In spite of that, it has been implied that significant additional costs are directly linked to counterpiracy measures like information sharing and military cooperation.
100 While there may be no information suggesting economic loss on the part of the shipping company and the crew, report reveals that cash/property, engine spares, stores, and unsecured items are stolen by the pirates off the coast of Indonesia.
101 In 2017 OBP report 97 Ibid at 16.
98 Lydelle Joubert, The state of maritime piracy 2018: assessing the human cost, (OBP Report, One Earth Future, Broomfield Co, USA 2018), 15.
99 Ibid.
100 Giacomo Morabito, ‘Dangerous waters: the economic impacts of maritime piracy’, Ph.D.
Program: 2014-2016, Department of Economic, University of Messina, 39 <https://iris.unime.it/retrieve/handle/11570/310457 1/147896/GIACOMO%20MORABITO%20-%20T hesis%20%28PhD%20in%20Economics%20-%20 University%20of%20Messina%29.pdf> accessed 8 August 2019.
101 ReCAAP/ISC, above n 95 at 36. summarised a limited economic cost of piracy in Asia thus: Malaysian Maritime Enforcement Agency (MMEA) US$ 23,138,010, stolen ship stores, crew belongings, and cargo US$ 6,320,920, ReCAAP budget US$ 2,256,228, and lost wages US$ 173,006.
102 More pointedly, piracy may directly affect the craft industry in Indonesia if a vessel carrying craft products and craft raw materials and equipment was attacked by Indonesian pirates with its financial implications to the industry.
3) Security effect From a security standpoint, the South China Sea and Malacca Strait are particularly vulnerable to pirate attacks and other transnational maritime crime due to the region’s geography and importance as a strategic trade route.
This creates narrow waterways that are densely packed with a number of cargo ships carrying goods, like craft products, and energy resources to Asia.
103 The importance of securing these sea lanes that are connected to Indonesia is due to their economic significance to Asia and the rest of the world.
As an illustration, 90 percent of the world’s trade are conveyed by ship, ‘one-third of the world’s shipments moves through Southeast Asia’s waters, and the 104 world’s longest strait, the 500 mile long Malacca Strait, is the main seaway 102 Maisie Pigeon, et al, ‘The state of maritime piracy 2017: assessing the economic and human cost’, (BPB Report, One Earth Future, Broomfield CO, USA, 2017, 20).
103 Aristyo R. Darmawan, ASEAN synergy to overcome challenges in maritime security: Indonesian perspective as the biggest archipelagic state in ASEAN <https://www.academia.edu/33628836/ASEAN_SY NERGY_TO_OVERCOME_CHALLENGES_IN_ MARITIME_SECURITY_INDONESIAN_PERSP ECTIVE_AS_THE_BIGGEST_ARCHIPELAGIC_ STATE_IN_ASEAN> accessed 8 August 2019.
104 The italicised word by this author.
https://iris.unime.it/retrieve/handle/11570/3104571/147896/GIACOMO%20MORABITO%20-%20Thesis%20%28PhD%20in%20Economics%20-%20University%20of%20Messina%29.pdf https://iris.unime.it/retrieve/handle/11570/3104571/147896/GIACOMO%20MORABITO%20-%20Thesis%20%28PhD%20in%20Economics%20-%20University%20of%20Messina%29.pdf https://iris.unime.it/retrieve/handle/11570/3104571/147896/GIACOMO%20MORABITO%20-%20Thesis%20%28PhD%20in%20Economics%20-%20University%20of%20Messina%29.pdf https://iris.unime.it/retrieve/handle/11570/3104571/147896/GIACOMO%20MORABITO%20-%20Thesis%20%28PhD%20in%20Economics%20-%20University%20of%20Messina%29.pdf https://www.academia.edu/33628836/ASEAN_SYNERGY_TO_OVERCOME_CHALLENGES_IN_MARITIME_SECURITY_INDONESIAN_PERSPECTIVE_AS_THE_BIGGEST_ARCHIPELAGIC_STATE_IN_ASEAN https://www.academia.edu/33628836/ASEAN_SYNERGY_TO_OVERCOME_CHALLENGES_IN_MARITIME_SECURITY_INDONESIAN_PERSPECTIVE_AS_THE_BIGGEST_ARCHIPELAGIC_STATE_IN_ASEAN https://www.academia.edu/33628836/ASEAN_SYNERGY_TO_OVERCOME_CHALLENGES_IN_MARITIME_SECURITY_INDONESIAN_PERSPECTIVE_AS_THE_BIGGEST_ARCHIPELAGIC_STATE_IN_ASEAN https://www.academia.edu/33628836/ASEAN_SYNERGY_TO_OVERCOME_CHALLENGES_IN_MARITIME_SECURITY_INDONESIAN_PERSPECTIVE_AS_THE_BIGGEST_ARCHIPELAGIC_STATE_IN_ASEAN https://www.academia.edu/33628836/ASEAN_SYNERGY_TO_OVERCOME_CHALLENGES_IN_MARITIME_SECURITY_INDONESIAN_PERSPECTIVE_AS_THE_BIGGEST_ARCHIPELAGIC_STATE_IN_ASEAN Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 19 connecting the Indian Ocean and the South China Sea, and is particularly vulnerable to pirate attacks.’105 This sea lane is particularly important to Indonesia because of the exportation of craft products and importation of raw materials and equipment needed in the craft industry in the country.
4) Political effect It is pertinent to state that piracy thrives significantly in a weak or collapsed state.
This has been exemplified by piracy incidents in Somalia and Nigeria.
Research has proven that there is a connection between piracy and governance.
For illustrative purposes, Daxecker, et al, opine that given the link between pirates and government officials, including the elite, piracy affects elections in some areas in Indonesia.
106 Owing to the existing connection between pirates and government officials in Indonesia and the need to protect their interests, pirates engage in a number of piratical attacks to maintain their influence in government.
Consequently, there is a strong indication ‘that pirates elevate their attacks because they fear electoral interruption of their connections with incumbent politicians and public officials’.107 In closing, it is argued that the linkage between pirates and some corrupt government officials may lead to a situation where policies that would create an enabling environment for piracy to thrive are introduced in Indonesia, which potentially affects the craft industry.
105 A.R.
Darmawan, above n 103.
106 Daxecker & Prins, above n 40 at 379.
107 Ibid.
108 I. Storey, above n 15 at 10.
109 Ibid.
110 For further readings on the Indonesian blues economy, see generally, Mohd.
Agoes Aufiya, c. Measures to curb Indonesian piracy It is argued that since the early 2000s, the counter-piracy measures in Southeast Asian countries like enhanced legal regime under national jurisdiction, coordinated operations among their navies and coast guards, existence of information sharing networks, ‘and accepted capacity-building support from non-regional states’ 108 have significantly reduced the number of piracy acts in the region.
Nevertheless, it is observed that in spite of these positive developments, over the years the number of reported incidents of piracy and armed robbery against ships has been high109 off the coast of Indonesia.
Below are some steps that should be taken by the government of Indonesia to repress piracy off its coast to obviate its potential impact on the country’s craft industry.
1) Effective implementation of the 2017 maritime policy In 2014, newly elected Indonesian President Joko Widodo introduced the Global Maritime Fulcrum (GMF) to strengthen the maritime security for economic development of the country: blue economy.
The effective implementation of GMF, especially in relation to marine culture, marine resources, archipelagic connectivity, maritime diplomacy and naval development is key to repressing piracy off the country’s waters.110 In a similar vein, the National Ocean Policy 2017, which provided comprehensive roadmaps and policy guidelines to fulfil Indonesian maritime vision, has the blue economy included as one of the administration’s main agendas.
111 Effective implementation of the 2017 policy would go a long way to curb ‘Indonesia’s global maritime fulcrum: contribution in the Indo-Pacific Region’, (2017) 6(2) Andalas Journal of International Studies 143, 143-159.
111 See Presidential Decree of the Republic of Indonesia No.
16 of 2017.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 20 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry piracy in the waters of Indonesia.
This is important because it not only focuses on securing the maritime environment but also protects the culture and the tourism industry, which are important components of the craft industry in Indonesia.
2) Domestication of extant conventions on piracy In addition to the above, it is imperative for Indonesia to domesticate maritime security conventions that criminalise piracy.
Against this backdrop, the LOSC and the SUA Convention should be domesticated.
Despite the existence of a domestic law that criminalises piracy in Indonesia, this paper is of the view that the provisions of the law are limited; therefore, ineffective in curbing contemporary piracy.
For example, the KUHP stipulations do not extend to piracy act committed on the high seas.
The import of this limitation is that piratical act that occurs on the high seas will not be prosecuted in the country.
Consequently, the KUHP should be amended to extend piracy to include violence against ships that occurs on the high seas.
Besides, the extradition provision in the SUA Convention means that pirates arrested by Indonesia can be extradited to other countries for possible prosecution, which would contribute to curbing piracy off the coast of Indonesia.
Aside from domesticating and implementing maritime security instruments, it is imperative that Indonesian government encourages Indonesian shipping companies and foreign shipping companies to adhere strictly to soft laws like the Best Management Practices (BMP) against pirates.
3) Efficient and comprehensive maritime institutions Given the country’s geographical position and the fact that it is the largest archipelago in the world, it becomes necessary for Indonesia to secure its waters.
Moreover, Indonesia has a lot of natural resources, including crafts, which require a secured maritime sector for their exportation.
As a consequence, a well-funded, well-equipped, and welltrained navy, BAKAMLA, and military police are necessary to curb piracy off the coast of Indonesia.
To introduce an effective and efficient institutional regime in Indonesia’s maritime sector, the number of maritime agencies in the country should be reduced.
This will limit corruption and overlapping functions that could impede the monitoring and regulation of the coast of the country.
More importantly, the funds and equipment can be properly managed among relevant maritime security and regulatory agencies in the country.
4) Membership of ReCAAP and other regional organisations Whereas Indonesia is a member of the joint naval patrol unit, Malacca Straits Patrol (MSP) (other members include Malaysia, Singapore, and Thailand) to monitor activities in the Straits of Malacca and Singapore, it is equally necessary to join ReCAAP.
Arguably, ReCAAP has been the most successful regional institution that has contributed in the reduction of piracy, especially in Asia.
It is beyond any iota of doubt that ReCAAP, through its ISC, has enhanced information sharing that has led to timely response to attacks or avoidance of piratical attacks.
More so, the monitoring of the waters in Asia and conducting training exercises among member states have greatly enhanced the preparedness of domestic maritime security and regulatory agencies in Asia.
Against this backdrop, it becomes imperative for Indonesia to become a member of this regional group.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry | 21 5) Robust economic development In light of the effect of the 1997 Asian financial crisis which led to massive unemployment and poverty across many countries in Asia, which prompted the rise of piracy in the region, the need to introduce and sustain a robust economic development in Indonesia becomes a condition sine qua non.
More importantly, the government of Indonesia’s perceived political marginalisation and socioeconomic inequalities, especially in relation to the Aceh ethnic group who are mostly fishermen, should be stopped.
It is imperative to create and increase economic opportunities for the less developed ethnic groups to prevent them from becoming pirates.
In light of that, the economic growth in Indonesia under this present administration should be commended, 112 while more efforts, especially funds, should be channelled toward cultural heritage conservation, tourism, the creative economy, and the craft industry.
6) Political reconciliation The role of political instability in the emergence of piracy cannot be overemphasised.
For illustrative purposes, the absence of government in Somalia contributed in the rise of piracy in the Gulf of Aden and Indian Ocean.
Similarly, the current spate of piracy in the Gulf of Guinea, particularly off the coast of Nigeria, is as a result of insurgence and other transnational crime in Nigeria.
Thus, using the GAM 112 See generally, Indonesia economic outlook, (Macroeconomic Analysis Series, LPEM FEB UI, Universitas Indonesia, 2019).
113 The attempt to bring about political reconciliation though not completely achieved is a commendable step.
It is expected that the current government will strengthen the structure that will lead to a lasting reconciliation in Indonesia.
Se generally, ‘Indonesia Country Report’, BTI 2016 insurgency as a case study in Indonesia, it is imperative that there should be peace and reconciliation between the government and the insurgent groups.
In light of that, the efforts of Indonesian government to reconcile all the factional groups in the country are steps in the right direction.113 It is imperative that all the ethnic groups in Indonesia should be given equal opportunity to participate in politics and engage in socioeconomic activities in the country.
7) Extension of hot pursuit It has been suggested that expanding the right of hot pursuit through bilateral or multilateral agreement as done in suppressing piracy off the coast of Somalia, especially among the countries off the Strait of Malacca is a step in the right direction.114 This is pertinent considering the existing overlapping maritime boundaries among the three contending countries: Indonesia, Malaysia, and Singapore.
This paper suggests that the government of Indonesia should not only expand the doctrine of hot pursuit to countries within the Strait of Malacca but to other Asian countries, especially the navies of the countries in Southeast Asia.
Such collaborative efforts between Indonesia navy and the navies of other Southeast Asian countries should be adopted.
Similarly, the existing MSP should be used as a platform to structure a hot pursuit agreement among the member states that would benefit them and contribute in suppressing piracy off the <https://www.btiproject.org/fileadmin/files/BTI/Downloads/Reports/ 2016/pdf/BTI_2016_Indonesia.pdf> accessed 4 March 2020.
114 Jacqueline J.F.
Espenilla, ‘Expanding the Right of Hot Pursuit: challenges for cooperative maritime law enforcement between the Philippines and Indonesia’, (2017) 9 (1) International Journal of maritime Affairs and Fisheries, 1, 8. https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2016/pdf/BTI_2016_Indonesia.pdf https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2016/pdf/BTI_2016_Indonesia.pdf https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2016/pdf/BTI_2016_Indonesia.pdf Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 22 | Anele Piracy off The Coast of Indonesia: Potential Implications on The Craft Industry coast of Indonesia; thereby preventing its potential effect on the craft industry in the country.
IV.
CONCLUSION Piracy off the coast of Indonesia is like the “sword of Damocles” hanging over the development of the country’s maritime industry with arguably far-reaching implications on the craft industry in the country.
As a riparian state, shipping is a cardinal aspect of the economic development of Indonesia.
Additionally, the plethora of cultures and cultural heritage due to the number of ethnic groups in Indonesia makes the craft industry a significant part of the country’s economic renaissance.
To that end, the development of the art-craft industry, including tourism and the creative economy, relies on secured maritime environment.
However, piracy in the waters of Indonesia has always been a recurring decimal with its implications on the humanitarian, socio-political, and economic development of the country.
Given the astounding consequences posed by piracy in the craft industry in Indonesia, it becomes politic for the government of Indonesia to curb the crime by implementing the antipiracy measures submitted above.
By introducing these measures, piracy off the coast of Indonesia will be suppressed and the threat of piratical attacks on craft and craft related vessels will be avoided.
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1 RECOGNITION OF THE CUSTOMARY LAND LAW IN THE CONSTITUTION OF INDONESIA AND MALAYSIA Datu Bua Napoh Faculty of law, Brawijaya University Email: datunapoh@gmail.com ABSTRACT Recognition of customary land law is very important for indigenous peoples in their daily lives to protect the existence of the preservation of customary law itself, because this is a traditional lands where they carry out their daily routines and develop their traditional habits which categorized as unique and different from other areas.
In Indonesia, the customary land law is recognized as long as it really exists and does not contradict the higher principle and state law.
We can see it in article 3 UUPA in 1960, and article 18b paragraph 1945 Constitution of the Republic of Indonesia; while in Malaysia, customary land law is also protected in the Constitution of Malaysia Certificate 134, Original Certificate in 1954.
Moreover, the recognition of indigenous land has also been described by the "UN Declaration on the Rights of Indigenous Peoples in articles 8, 10, 26, 29, 30, 32", the UN explains how they give great recognition of the law of customary land to provide rights and obligations to society custom to protect the existence and preservation of the traditions that they get from their ancestors.
Keywords: customary, law, constitution, Malaysian Law I.
INTRODUCTION Facing this modern era, there are so many problems faced by the community of the world, from the economic, social, education and culture aspect.
Especially in Indonesia and Malaysia, where both countries are classified as developing countries, according to the World Economic Report of the International Monetary Fund, April 2010 1 .
In this article, we will discuss about the impact of culture by seeing the presence of customary land law as a very important element, especially if we look at the demands for developing countries are trying to pursue the achievement of developed countries.
This is what has been faced by Indonesia and Malaysia because of limited income per capita which is 1 Http://id.wikipedia.org/wiki/negara_berkembang#c ite_note-8 retrieved on October 23, 2014 10.18 pm mailto:datunapoh@gmail.com 2 categorized as very low.
In addition, the development of building construction and facilities and also the infrastructure of the private building or government-owned land that is increasing from year to year requires large amounts of land.
In fact, we know that soil is material that is consistent and can not be renewed.
Moreover, in Indonesia and Malaysia who know the law of customary land has been owned and managed by indigenous peoples as part of the heritage of their ancestors, and they must continue to ensure its existence and continuity.
Of course we know that indigenous land is a place where they perform and preserve their own customary laws.
That is why we must not forget the past.
I said that because the past reminds us that there is a land that has been owned and is bequeathed to them as grace from the God.
They have been born in the region that we should give an honor and great appreciation because they were here before the unitary state is formed.
Thus, it needs a policy to mediate between human needs of a land and the land itself in certain areas so that it will create the rights and obligations to the person who uses the land and this is what is in customary land.
Customary land is part of customary law which is made up of local culture from predecessors who passed orally to their descendants.
For the sake of it, we need to know the definition of customary law first.
Customary Law (in Indonesia, its called hukum adat) is derived from Arabic word “huk’m” that literally means regulation, while “adat” means tradition or pattern of behavior of a community.
Therefore, hukum adat is a tradition.
Christian Snouck Hurgronje is the first person to introduce the term of hukum adat or customary laws in his book De Atjehers (The People of Aceh) in 1894, which was written in Dutch, AdatRecht.
The book is written based on the result of research that he conducted in Aceh from 1891 to 1892 for the benefits of Dutch colonials.
The term of customary law was then popularized by Cornelis Van Vollenhoven in his book “Het Adat-Recht van Nederlandsch Indie (Th Customs of Indonesia).
According to Cornelis Van Vollenhoven, definition of customary law proposed by the scholars is “compilation of regulations related to behavior and attitude that indigenous people and foreigners should follow in a community, because in one hand it entails sanction or penalty, it consists of local laws, and in other hand it is not a subject of codification because it is tradition.
According to J.H.P.
Bellefroid, customary 3 law is a group of living rules that even though it is not institutionalized by the authorities, it is regarded with high respect by the people, believing that the rules are intended as laws 2 .
Hardjito Notopuro claimed that “customary law is unwritten law or custom which is characterized by the fact that it is regarded by people as life principle in establishing justice and community welfare, and it is based on kinship 3 .
From definitions set by three experts, it can be concluded that customary laws are traditions and rules, unwritten, but observed by the indigenous people as principles that they believe in.
According to C. Van Vollenhoven, he mentions six characteristics of indigenous rights, they are alliance and its members have the right to take advantage of the land, the harvest of all the things that grow and live in this land.
The sixth characteristics of indigenous rights are mentioned as follows: 4 1.
Individual rights are covered by all alliance rights.
2 Soerojo Wignojodipoero, Introduction and Principles of Adat Law, Haji Masagung, Jakarta, 1983, page 14 3 Hardjito Notopuro, About adat law, definition and limitation in national law, National Law Magazine No.
4, Jakarta, 1969, page 49 4 Wulansari C. Dewi,.
Adat Law Indonesia An Introduction.
Reflika Aditama,Bandung.
2012, page.
81 2.
The leader of the alliance will be decisive for his tribe and the use of certain land areas, also nominated for the benefit of the general public and for this land is not allowed for individual rights.
3.
The foreigner who wants to take the product of this customary land must be asking permission from the alliance first and pay recognition money, and after the harvest they must pay the rent.
4.
The Alliance responsible for everything that happens in the adat land.
5.
Prohibited from alienating the customary land there.
Both the alliance and its members are not allowed to make absolute decisions on land, so the land authorities removed.
From the explanation above about the rights of indigenous peoples to their traditional lands, we now indirectly understand that implementing these rights should have customary land law as a realization of the rule itself.
Therefore, we need to see whether these two countries are 4 still able to maintain the existence of the law of customary land as part of the heritage, even under the territorial sovereignty of Malaysia and Indonesia, each country should have a national law governing the law of the land law that puts equally to the citizen of the country.
In Malaysia and Indonesia, there is a law that is rarely considered customary land from customary law in each country.
It will be a big challenge for Indonesia and Malaysia to follow a different system, but it has indigenous people to see their country as the needs of developing countries to catch up with developed countries so that they will not be overlooked from the eyes of the World.
Furthermore, both countries have an obligation to protect the interests of indigenous peoples.
II.
METHODE OF RESEARCH This paper uses juridical-normative method, including reviewing and analyzing the rules of Indonesian and Malaysian law concerning customary law, as well conducting a comprehensive analysis of Indonesian and Malaysian Law.
The approach in this paper is the Statute and comparative approach, which in this research will explore the comparison of law and constitution between Indonesia and Malaysia.
III.
RESULT AND DISCUSSION A.
Customary Land Law in Malaysia Customary land law is respected at the highest level in Malaysia, especially in Negeri Sembilan, where some areas there to uphold and enforce firmly to Perpatih tradition.
Then, the management of customary land law in Negeri Sembilan adapted to customary law in Perpatih tradition in Malaysia because customary law is divided into two parts, namely Perpatih customary law and Temenggung customary law.
a. Perpatih Adat Law is a habitual and behavioral pattern of the community that hold on tight into Perpatih tradition which is brought in by Dato’Perpatih Nan Sebatang who came from Minangkabau, Tanah Tinggi, Padang, Sumatra to be exact, in the seventeenth century in Tanah Melayu.
It is dedicated in Negeri Sembilan, Naning, and Alor Gajah, in which case this Perpatih customary law could be described as a complete rules for organizing most 5 aspects of Minangkabau society’s life, they are as follows: 1) Safety 2) Security 3) Harmony 4) Political stability These four aspects are arranged in customary law system of Perpatih.
In addition, the lives of people in the area are included in customary law Perpatih is matrilineal, where women have a major position in society.
Because only women who will inherit, there is only one woman who inherited the wealth of parents and their children will follow their parents and their children will follow the mother's ethnicity, in other words, women hold the highest maternal words of other women is the highest status of securities at this tribe.
This is also applied in Padang, Sumatera.
The characteristics that showed the matrilineality system is in the form of below: a) The Wealth Distribution, in this adat, inherit wealth will be be passed from mother to her daughter and if she does not have any daughter, it will be passed to her sister or the daughter of her sister or granddaughter of her sister.
This happens because at this tribes, men prefer to wander to earn money so that women who are left behind should be able to provide for themselves.
In addition, wealth not for an individual but for a family so that it cannot be sold to other families except for the certain reason.
b) Marriage, in Perpatih customary law, is exogamous marriage, which is not allowed to marry the same tribes because it is believed to still have blood relations.
Along with the rule, the husband will follow in his wife's family after marriage and will not be allowed to marry the other woman from the same tribe with his wife.
If the wife passed away, the children will be handed over to the wife’s family because the husband is considered not having the right of the children.
c) Government system, the government policy which is practiced by Perpatih customary law is more democratic because the power is distributed equally from the top until the bottom arrangement.
The leader is elected by 6 all the people from the upper to the lower class.
d) Condemnation, in Perpatih customary law, procedure of awarding a penalty to the guilty person more leads to feelings, because they believe the person who made the mistake will change for the better and penalties aimed at reforming conditions, not impose penalties on the basis of suspicion.
People who can put the death penalty is only the supreme authority, or the king.
e) The tribe, in Perpatih customary law only knows 12 tribes; they are Biduanda, Batu Hampar, PayaKumbuh, Mungkal, Tiga Nenek, Seri Melenggang, Seri Lemak, Batu Belang, Tanah Datar, Tiga Batu, Anak Aceh, and Anak Malaka.
Among this tribe distribution, the family bond in the tribe is very tight and strong.
b. Temenggung Customary Law is customary law that applied in almost all the region across Malaysia except in Negeri Sembilan.
This customary law is brought to Malaysia by Dato’ Ketemenggungan (step brother of Dato’ Perpatih) who also came from Sumatera.
This customary law most practiced by Malay Sultanate of Malacca and then inherited to the other Malay lands.
The aspects that is given priority to be arranged in Temenggungan adat law are:  Criminal Law  The Inheritance Wealth Law  Constitutional Law The characteristic of the Temanggung customary law is patrilineal, where men more prominent in this tradition because considered as the successor of the family, at the same level to Faraid law (Islamic inheritance law) which stated that men are the leader of the family, so the boys will get the inherit wealth from his father.
The features that can be seen from Temenggung adat are: 1) The Wealth Distribution, the property will be passed to men generation because considered as the leader of the family, where the property that is owned is for individual who eventually will be charged for the tax which is given to the 7 government of that region or country.
The wealth is entirely the property of everyone.
2) Marriage, in Temenggung tradition, can be done with anyone provided, that does not violate the law of Islam and if they married, the wife will follow the husband’s family because he is the leader of the family.
3) The government system, in this tradition, the system of government is autocracy where the absolute power is in the highest authority or the king.
The king is the symbol of a country's sovereignty, the chief of religion and the administration.
The kingship has been handed down to their descendants by successive.
4) Condemnation, the punishment given to the guilty person is punitive, has a beneficial effect of wary and reminded to others to do not make the same mistake.
The punishment was handed down to someone by the status of that person.
If the position in community is important, the punishment will be more lightweight than those who have the lower status than him, and to bring down the punishment for someone who needed the strong evidence first.
5) Tribal, in this adat does not employ the system tribe classification.
The explanation of customary law above shows how the two customary law is applied in Malaysia, we can find out how the application of customary land law in Malaysia.
We know that people have to follow the customary law of the legal division of wealth, so the customary land law in Malaysia is divided into two, Perpatih and Temenggung customary law.
Due to customary land law are part of customary law, so that the system used to administer customary law depends on that which applies in that area.
In this modern era, customary law will be difficult to run is Perpatih customary law; because ownership does not have the right to an individual but to the family so that the management shall be in accordance with the approval of a large family and not being sold.
Of course, this is 8 very influential in the modern era because technological development and the increasing needs in making buildings and infrastructure facilities, land law customary in this tradition will block, but on the other hand will protect the ownership of that land so their descendant who holds firmly to this tradition would not be afraid to lose their land.
B. Adat Land Law in Indonesia In Indonesia, the customary land law also follows the law that occurred in the local area.
According to Cornelis van Vollenhoven who was the first launcherof this idea, he lift up the Archipelago according to customary law which can be divided into 23 indigenous environment, as follows: Aceh, Gayo and Batak, Nias and the surrounding area, Minangkabau, Mentawai, South Sumatra, Enggano, Melayu, Bangka Belitung, Kalimantan (Dayak), Sangihe-Talaud, Gorontalo, Toraja, South Sulawesi (Bugis/Makassar), North Maluku, Ambon, South-East Maluku, Papua, West Nusa Tenggara and Timor, Bali and Lombok, Java and Madura (Java Coasts), Java Mataraman, West Java (Sundanese).
These regions have the various diversity of customary law so the customary land law follows these 23 traditions.
The role of government is very crucial here as the mediator to anticipate the disagreement of indigeneous community which may lead to conflict.
Based on customary law in Indonesia, there are 2 (two) various rights that arose of the ground, they are:  The alliance, right which is owned, controlled, used, enjoyed, organized by a group of people lived in a certain area who called as law society (law alliance).
Meaning, this alliance accurately described as indigenous rights, to become a true master, more, precise assembly is customary rights are often called, are Pertuan right, ancient, customary rights, or beschikingsrecht.
 Individual rights, the right which is owned, controlled, used, enjoyed, organized by a member of certain alliance.
By customary law of UUPA 1960, made on the basis of customary law and indigenous rights is one of the customary laws and institutions developed in the social function of land rights.
Article 5 of UUPA states that "Agrarian Law were applied to the earth, water and space is the 9 law of customary land, as long as it does not conflict with national interests and the state, based on the nation's unity, Indonesia’s socialism as well as the rules stated in this law, and the applicable law, all apply the elements that rely on religious law. "
5 From this article we can see how customary law in Indonesia is the highest priority if we want the land management, and if the land is located in the area of indigenous peoples.
C. Malaysia’s and Indonesia’s Constitution in Protecting Customary Land LaW a. Malaysia’s constitution in protecting their adat land law Malaysia is the country that follows The legal of Anglo-Saxon (Common Law), it is a legal system that is based on jurisdiction law.
Source of law in the legal system is adjudication.
In the legal system, the role given to the judges is enormous.
.
Therefore, to know how the government of Malaysia protects the adat land law, we can see in the UNDANG-UNDANG MALAYSIA CETAKAN SEMULA Akta 5 A.P.
Parlindungan; Comments about the Legal Regulations Agrarian goods; Mandar Madju; Bandung, 1998, page 56.
134 AKTA ORANG ASLI 1954.
In addition, as a country that follows the legal anglo-saxons, so I will present few cases that have been sentenced by the court: 1.
Pedik bin Busu and others VS Yang Dipertua Majlis Daerah Gua Musang and others 6 HIGH COURT (KOTA BHARU) MOHD AZMAN HUSIN H SUIT NO 24-242007 29 October 2009 The plaintiffs owned a customary land at Kampung Jias, Rancangan Penempatan Semula, Kawasan Kuala Betis, Gua Musang ('the land').
The plaintiffs built a religious house for the Christian.
The second defendant served the first notice to the plaintiffs for the building of the religious house to be stopped and to subsequently demolish the same within two weeks.
The plaintiffs received two more notices from the second defendant on 19 April 2007 and 24 May 2007 directing the building on the land be demo-lished within 30 days.
On 4 June 2007, the first defendant together with 6 Malayan Law Journal Reports/2010/Volume 5/Pedik bin Busu dan lain-lain Yang Dipertua Majlis Daerah Gua Musang dan lain-lain [2010] 5 MLJ 849 29 October 2009.
10 the police and RELA had demolished the religious house 5 MLJ 849 at 851 Further, the plaintiffs filed an original summons in encl 1 for declaratory orders, inter alia, (i) the plaintiffs were entitled to practice the religion of their choice under the Malaysian Constitution and thus entitled to build the religious house on the land; (ii) the notices under s 425 of the National Land Code ('NLC') issued by the second defendant against the plaintiffs were void as it contravened the Federal Constitution ('the Constitution') and the Aboriginal Peoples Act 1954 ('the 1954 Act'); (iii) the first and second defendants' action of demolishing the religious house amounted to a trespass.
The High Court decided, inter alia, that: the Street, Drainage and Building Act 1974 ('the Act') was inclusive and outweighed the 1954 Act, hence the first defendant has the power to demolish a building which is built within the jurisdiction of the first defendant if the building does not fulfill the requirement stated under the law; the building of the religious house was allowed under art 11(3)(c) of the Constitution, but the plaintiffs had not made the application for approval of the building of the religious house; the first defendant did not comply with the notices served on the plaintiffs within 30 days when the religious house was demolished before the expiration of the 30 days notice.
Held, allowing the application: (1) The ownership of the land by the plaintiffs was valid, although the land was not a customary land and the document of title was yet to be issued to them (see para 13 (a)).
(2) The plaintiffs were entitled to practice the religion of their choice and could build the religious house although it was not their custom.
However, the building of the religious house ought to comply with the requirements of law especially the Act in view of the gazetting of the land area and had been stated to be under the supervision of Majlis Daerah Gua Musang.
The applica-tion to build the religious house 11 must be presented to the first defendant.
Thus, the building of the religious house was not valid as the Act had not been complied with (see para 13(b)).
(3) The notice under s 425 of the NLC could be issued by the second defendant and the 30 days period given to the plaintiffs to demolish the religious house building ought to have complied with.
Thus, the demolishing of the religious house building before the expiration of the 30 days period was inappropriate.
The first and second defendants should have demolished the religious house after the expiration of the 30 days notice upon the failure of the plaintiffs to comply with the orders in the notice (see para 13 (d) (e)).
(4) Exemplary damages were awarded to the plaintiffs based on the Court of Appeal's decision in Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289 (see para 13 (h)).
2.
Robert Lee @ Robert Seet & Anor v Wong Ah Yap & Anor 7 FEDERAL COURT (PUTRAJAYA) ABDUL HAMID MOHAMAD, ARIFIN ZAKARIA AND AUGUSTINEPAUL FCJJ CIVIL APPEAL NO 02-6 OF 2006(M) 11 May 2007 Equity -Property, equitable interest in -Fair and just -Statutory prohibition -Factual change of ownership -Whether courts may disregard statutory provisions to arrive at a decision -Malacca Lands Customary Rights Ordinance ss 3, 29 Robert Lee @ Robert Seet & Anor v Wong Ah Yap & Anor 8 FEDERAL COURT (PUTRAJAYA) 7 Malayan Law Journal Reports/2007/Volume 4/Robert Lee @ Robert Seet & Anor v Wong Ah Yap & Anor [2007] 4 MLJ 393 11 May 2007 8 Malayan Law Journal Reports/2007/Volume 4/Robert Lee @ Robert Seet & Anor v Wong Ah Yap & Anor [2007] 4 MLJ 393 11 May 2007 12 ABDUL HAMID MOHAMAD, ARIFIN ZAKARIA AND AUGUSTINEPAUL FCJJ CIVIL APPEAL NO 02-6 OF 2006(M) 11 May 2007 Equity -Property, equitable interest in -Fair and just -Statutory prohibition -Factual change of ownership -Whether courts may disregard statutory provisions to arrive at a decision -Malacca Lands Customary Rights Ordinance ss 3, 29 Land Law -Customary land -Transfer of right -Restrictions in interest and transfer -Property sold to unauthorized person -Property acquired and compensation paid -Whether transfer valid and heirs entitled to compensation -Malacca Lands Customary Rights Ordinance ss 3, 29 Li Keng Liat was the registered owner of land in Malacca which was subject to the provisions of the Malacca Lands Customary Rights Ordinance ('the Ordinance').
When he passed away in 1903, Lee Chim Giang was registered as the executor of his estate.
In 1935, Tan Tai Tip, 'purchased' the said MCL land from Lee Chim Giang.
Section 3 of the Ordinance provided that no transfer of any land subject to the Ordinance was valid unless such transfer was made either (a) to a Malay domiciled in Malacca; or (b) to a person issued with a certificate as qualified to hold such land.
Section 29 of the Ordinance further provided that no sale of any interest in any such land was valid unless made in accordance with the Ordinance.
Tan Tai Tip was neither a Malay nor a person issued with a certificate as qualified to own or to hold an interest in such land.
Thus the land remained registered in the name of Lee Chim Giang, since deceased, as executor of the estate of Li Keng Liat.
Tan Tai Tip and his kin entered into and remained in quiet and uninterrupted possession of the land, built houses and lived on the land, paid all quit rent and other dues, used the land for the planting of padi and vegetables and the rearing of cattle, and were in possession of the document of title to the land.
There was no claim to the land by any beneficiary of Li Keng Liat.
In 1981 the land was acquired by the State 13 Director of Lands and Mines.
Following an inquiry compensation in the sum of RM616,146 was awarded to 'Li Chim Giang estate of Li Keng Liat' as 'owner' for the acquisition of the said land.
Other smaller awards were made to some people, including a son of Tan Tai Tip, who were in possession of the said land, as 'persons interested' in the land.
Administrators of the estate of Tan Tai Tip filed a suit against the defendants, the current executors of the estate of Li Keng Liat, deceased, claiming entitlement, as the owner, to the award of compensation.
The trial judge gave judgment for the plaintiffs.
The Court of Appeal dismissed the defendants' appeal and the defendants appealed to the Federal Court.
Two questions were certified for the consideration of the Federal Court, namely: (1) when land under the Ordinance has been acquired, 4 MLJ 393 at 394 Does a prohibition in the Ordinance continue to apply to decide to whom compensation shall be paid?
; and (2) can the doctrine of fairness be used to override the principles of law and the Ordinance?
Held, answering the first question in the affirmative and the second in the negative and allowing the defendants' appeal with costs: (1) The trial judge allows respondents to rest their case on exclusive ownership.
However, such compensation is for the 'owners' of the land is not for the invaders, which has in any case been compensated separately.
So, this problem is actually about the 'owner'?
The courts below seem to have missed this point (see para 13).
The basis of the claim by the plaintiffs was that Tan Tai Tip had purchased the land.
The plaintiffs could not extricate themselves from the alleged purchase as the basis of the right to the land which is now represented by the compensation money.
To hold that the plaintiffs were entitled to the compensation was to recognize Tan Tai Tip's ownership right, which in turn 14 meant recognizing the 'sale' (see para 46).
(2) The alleged sale took place in 1935.
Money was paid and possession was given.
No attempt whatsoever was made for Tan Tai Tip, not being a Malay, to be issued with a certificate qualifying him to hold the land.
Thus sale could not be conditional.
It is not necessary to consider whether s 3 of the Ordinance allows a conditional sale (see paras 40-41).
The Court of Appeal was right that this was a case of an outright sale.
This court had no difficulty accepting that there was a sale, but the question was whether the sale was valid or void (see paras 2021).
(3) The courts below supported the view that the right to compensation is a different matter entirely from the issue of land ownership.
The argument that the property in the land could pass under an illegal contract, and therefore can not be applied would defeat the whole purpose of creation of customary land and Malay reserve land.
This will give effect to the transaction which is clearly prohibited by law.
It is wrong to think that this is a case of one-off payment of compensation and that it had no implications for the overall indigenous lands (see paras 4243, 45).
(4) Where, as here, the land subject to the law, sales made to people who are not eligible under this Act does not apply.
The buyer does not become the owner of the land under the Ordinance and incompetent to acquire title to the land he bought.
The alleged purchase by Tan Tai Tip (also he is not a Malay and not a certificated person) must be not considered legitimate (see paras 25, 30); Pang Cheng Lim v Bong Kim Teck & Ors [1997] 4 AMR 3717 followed.
(5) Furthermore, the buyer can not be earned based on the Law, 15 there is no other way by which the buyer can obtain it.
To allow buyers to obtain a degree with a method that does not comply with the law, would defeat the purpose of the Ordinance.
The Ordinance was enacted for the protection of certain classes of people.
Cases on Malay reserve lands were also to the same effect.
The fact that the land had been occupied by the others for a length of time did not extinguish the landholders title to the said lands.
4 MLJ 393 at 395 The Federal Court has answered the first question in the affirmative (see paras 26, 28, 32); Haji Hamid bin Ariffin v Ahmad bin Mahmud [1976] 2 MLJ 79 followed, Foo Say Lee v Ooi Heng Wai [1969] 1 MLJ 47 distinguished and Mistry Amar Singh v Kulubya [1963] 3 All ER 499 referred.
(6) Before applying the rules of English equity, the court must first ascertain whether there are written laws in Malaysia that the rules might conflict.
Even if there is no such law, the application of these rules is subject to the condition that they should be applied only to the extent that circumstances allow and / or make necessary.
Regulatory and legal Determination of Malay Reserve which are made with a definite purpose.
There is no rule of equity (or common law) should be applied which would defeat the purpose, all leads to the effect of the application of fair rules, to give the effect of a valid transaction, must be stated by law.
(see paras 52-53); Ramsden v Dyson (1866) LR1 HL129 distinguished and Devi v Francis [1969] 2 MLJ 169 referred.
(7) The decisions in the courts below were based on what was perceived as fair and just (see para 16).
Here it was not just the issue of whether it would be more fair to decide in favor of the plaintiffs or the defendants.
The court was faced with an 16 illegal act by both of them, the result of which would cause at least one of them to suffer losses.
The court had to deal with the acts of two persons that contravened the written law and which, if given effect to, would defeat the whole purpose of the written law (see para 58).
The fact that the land had been acquired by the State made no difference.
The land remained customary land until the State authority decides to declare it, or part of it, otherwise (see para 62).
(8) It is true that the court, through a decision, try to get the 'fair'.
However, it can only be done within the confines of the law, not through some general and vague sense of justice and fairness.
Our British colonial masters saw it necessary to make laws to protect the ownership of a class of persons over some areas of land.
Laws were thus enacted as a matter of policy.
These laws are preserved by the Constitution.
If at all these laws need to be amended or repealed, this should, as a matter of policy, be done by the legislature, not by the courts through their decisions.
This court thus answered the second question in the negative (see paras 60-63).
From the two cases above, we can see where the court in Malaysia prioritizes the rights of indigenous peoples, especially for customary land law which can be seen in Certificate 134 Akta Orang Asli 1954. b. Indonesia’s constotution in protecting their customary land law Indonesia is a country that has adopted a system owned by European countries which are based on so-called law of Roman Law, also known as the Civil system.
The Civil Law had three characteristics, they are, a partial codification, the judge is not tied to the president, so the law becomes the principal law sources, and the judging system is inquisitorial.
Inquisitorial means in that system the judges have bigger role in direct and decide the problems.
The judges are finding the fact and accurate in assessing evidence.
Judges in civil law are trying to get a https://www.google.com/search?client=firefox-a&rls=org.mozilla:en-US:official&channel=sb&biw=1366&bih=667&q=inquisitorial+in+english&spell=1&sa=X&ei=WK9iVNicHKfMmAX88IKgCA&ved=0CBkQvwUoAA https://www.google.com/search?client=firefox-a&rls=org.mozilla:en-US:official&channel=sb&biw=1366&bih=667&q=inquisitorial+in+english&spell=1&sa=X&ei=WK9iVNicHKfMmAX88IKgCA&ved=0CBkQvwUoAA 17 complete picture of every event that is being faced since the beginning.
It is different from a system that held by Malaysia, where the judges is given the broader power.
In Indonesia, the judges cannot decide a case if there were no rule that arrange that case.
This is closely related to the principle of legality.
Thus, in Indonesia, to strengthen their customary land law, it would be needed the positive constitution that manages this first so that they have a strong binding legal power.
In Indonesia there are constitutionally managing the customary land, from the recognition of human rights of indigenous peoples in Indonesia, began from article 18b paragraph 2 Indonesian Constitution 1945, where in this article explained that the nation respect and confess the existence of indigenous people as long as it is not in contradiction with the principles of the Republic of Indonesia that is arranged in current law.
With the arrangement of the constitution, private law also arranged it including: Law No.
5 1960 about Agrarian Basic Law (Peraturan dasar Pokok-pokok Agraria), Law No.
41 Year 1999 in accordance with Law No.
19, 2004 of Forestry (Pokok-pokok Kehutanan), Law No.
7, 2004 on Water Resources and many more that touched on indigenous peoples' rights protection.
At the same time as protection for indigenous land can be seen in article 1 and 3 UUPA which acknowledgeof the confession on adat right as long as it is exists and true, as well as it is not in contradictory with the interest of the nation and state and the higher law.
In addition, with the decision of Constitutional Court Number 35/PUUX/2012 on May 16, 2013, the Constitutional Court of Republic of Indonesia is reading the decision of Judicial Review of Law 41/1999 on Forestry on a proposition by AMAN (Aliansi Masyarakat Adat Nusantara/Alliance of Indigenous Peoples of the Archipelago) with two indigenous communities.
In the decree No.
35/PUU-X/2012, the Constitutional Court emphasized that Indigenous Forest was forest that is located in the indigenous area, and no longer indigenous forest of the countries.
Indigenous peoples in Indonesia welcomed the decision of 18 the Constitutional Court by installing the board in their own ancestral lands.
That plank said “indigeneous forest is no longer country forest.
Indigeneous people carry out the Constitutional Court decision Number 35/PUUX/2012 concerning Indigenous Forest".
In addition, the indigenous people also started rehabilitation movement in an indigenous area which is damaged by the company activities for the permission given by the state.
8 From those explanations above, we now know that customary land in Indonesia is protected and respected similarly to customary law below them.
Why do I call that because the customary land shall follow the rule of the local customary law because they are a united and cannot be differentiated.
IV.
CONCLUSION Indonesia and Malaysia gave customary land the recognition of the law in their sovereignty territory which is shown in their constitution.
The existence of Malaysia give substantial guarantees against the customary land law and can be seen from the presence of Undang-Undang Malaysia Cetakan Semula Akta 134 Akta Orang Asli 1954 and with the decision of the judges, which prefer in indigenous peoples’ side, if connected with the disputes over customary land, because they adopt the common law legal system; while the existence of Indonesia constitution which follows the civil law, providing the protection against the law of customary land by seeing article 18b paragraph 2 Indonesian Constitution 1945, the Law No.
5 Year 1960 regarding laws to Basic Agrarian, Law No.
41 In 1999 in accordance with Law No.
19, 2004 of Forestry, the Act No.
7/2004 on Water Resources, which specified in article 1 and 3 UUPA in 1960, and the decision Constitutional Court Number 35/PUUX/2012 on May 16, 2013.
REFERENCES Book B Hooker.
M, 1970, Readings in Malay Adat Laws, Singapore University Pers, Singapore.
B Hooker.
M, 1972, Adat Law in Modern Malaya Land Tenure, Traditional Government and Religion, Oxford University Press, London.
B Hooker.
M, 1980, Native Law in Sabah and Sarawak, Malayan Law Journal, Singapore.
Cornelis Van Vollenhoven, 1983.
Orientation on Indonesian Customs, 19 in cooperation with Inkultra Foundation inc., Jakarta Hardjito Notopuro, 1969, “About Adat Law, Definition and Limitation in National Law”, National Law Magazine No.
4, Jakarta Ridwan Ahmad Fauzie, 1982, Hukum Tanah Adat Multi Disiplin Pemberdayaan Pancasila, Dewaruci Press, Jakarta.
Soerojo Wignojodipoero, 1983.
Introduction and Principles of Adat Law, Haji Masagung, Jakarta.
Wilkie Margaret, Peter Luxton, Rosalind Malcolm, 2003, Land Law 20032004 (Blacstone’s Law Q & A), Oxford University, London.
Wulansari C. Dewi, 2012.
Adat Law Indonesia An Introduction.
ReflikaAditama,Bandung Journal Malayan Law Journal Reports/2007/Volume 4/Robert Lee @ Robert Seet & Anor v Wong Ah Yap & Anor [2007] 4 MLJ 393 11 May 2007 Malayan Law Journal Reports/2010/Volume 5/Pedik bin Busu dan lain-lain lwn Yang Dipertua Majlis Daerah Gua Musang dan lain-lain [2010] 5 MLJ 849 29 October 2009.
103 LEGAL STATUS OF WARSHIP WRECKS FROM WORLD WAR II IN INDONESIAN TERRITORIAL WATERS (INCIDENT OF H.M.A.S.
PERTH COMMERCIAL SALVAGING) Senada Meskin Post Graduate Student, Australian National University Canberra Email: senada.meskin@gmail.com ABSTRACT Second World War was one of the most devastating experiences that World as a whole had to endure.
The war left so many issues unhandled, one such issue is the theme of this thesis, and that is to analyze legal regime that is governing sunken warships.
Status of warship still in service is protected by international law and national law of the flag State, stipulating that warships are entitled to sovereign immunity.
The question arises whether or not such sovereign immunity status follows warship wreck?
Contemporary international law regulates very little considering „sovereign wrecks‟, but customary international law, municipal court decisions and State practices are addressing issues quite profoundly, stating that even the warship is no longer in service it is still entitled to sovereign immunity status.
HMAS Perth is Australian owned warship whose wreck current location is within Indonesian Territorial Sea.
Recent reports show that commercial salvaging has been done, provoking outrage amongst surviving HMAS Perth‟s naval personnel and Australian historians.
In order to acquire clear stand point on issue of Sovereign Wrecks legal status, especially of HMAS Perth‟s wreck, an in-depth analysis of legal material is necessary.
Keywords: Territorial Waters, Warship, Warship Wreck, Salvage I.
INTRODUCTION Sea going vessels has been used as a means of transport and warfare as long as there is known history.
The fact that 70% of our earth's surface are water 1 makes these vessels important even today.
Warships have played crucial role in the outcome of Second 1 Student Atlas of the World, National Geographic Society, Washington DC, 2009, page 26.
World War 2 , and Indonesia, which waters, many countries used as passage, had its part as well.
2 World War Two started in 1939 when Hitler invaded Poland on 1 September, and Britain and France declared war to Germany two days later.
The war ended 1945 when Russians reached Berlin and Hitler committed suicide.
On the other side of the world USA dropped Atomic Bombs on Hiroshima and Nagasaki which ended war in eastern part of the globe.
Bruce Robinson, World War Two: Summary Outline of Key Events(online), http://www.bbc .co.uk/history/worldwars/wwtwo/, (01 May 2014).
mailto:senada.meskin@gmail.com http://www.bbc/ 104 During Second World War waters of Indonesia‟s archipelago were mainly used by warships belonging to Imperial Japanese Navy and Allay forces.
Japan‟s intent was to expand its empire by occupying territories of former British and Dutch colonies, and Australia being neighboring country felt threatened.
America, Britain, Dutch and Australia (ABDA) would face Japanese Navy fleet in more than one occasion, 3 trying to prevail in war for the Pacific.
However, the strength of Japanese navy fleets was not to be underestimated.
The majority of these battles was won by Japan, including the battle for Sunda Strait on 28 February 1942, 4 causing ABDA ships to sink, including HMAS Perth.
5 HMAS Perth was Royal Australian Navy commissioned warship, build in Portsmouth, England.
Her primarily duty was to patrol and provide an escort to ships over Australian coastline, when her Captain got new orders, which took HMAS Perth to Mediterranean, where she joined the 7th 3 Battle of Java sea on 27 February 1942; Battle of the Coral Sea, 7-9 may 1942; Battle of Layte Gulf 23-25 October 1944; Battle of Philippine sea 19-20 June 1944.
History Year by Year, Dorling Kinderslay Limited, Great Britain, 2011, Page 394395 4 Ibid.
5 Australian Navy, HMAS Perth (I) (online), http://www.navy.gov.au/hmas-perth-i (04 April 2014).
Cruiser Squadron under Admiral Andrew Cunningham‟s command, 6 and this was to be her first war experience.
HMAS Perth promptly returned to Australia, resuming it‟s primarily duty, which will take her to Indonesian Archipelago where she will become part of ABDA forces, trying to repeal advance of Japanese Navy.
The Sunda Strait battle will prove itself fatal for HMAS Perth and USS Houston.
Both ally ships engaged Japanese destroyer warships, ships generally larger and better armed than those operated by ally forces, causing both ships sank around midnight.
HMAS Perth sank at 00.25 on 1 March 1942, together with 350 of 671 its Naval Personnel.
Rest of the crew survived only to be captured, who, upon the end of the war, 214 of them, were repatriated where rest died in captivity.
7 Today HMAS Perth lies at 35 (thirty five) meters deep of Sunda Strait shallow waters.
Recent reports show that the condition of the ship is such that there is evidence of commercial salvaging done, where many of the ship parts are missing, for which is known that they were intact at 6 Donald Summerville & Ian Westwell, First and Second World War, Lorenz Books, London, page 307.
7 Ibid.
105 the time of ships sinking.
8 Australian Survivors, historians and Defense personnel have been horrified to discover that the wreck of HMAS Perth is being destroyed by commercial salvagers.
9 International law attributes sovereign immunity status to warships, ensuring that these ships are not to be “subject to seizure, arrest or detention by any legal process, nor to any proceedings in rem.” 10 A warship is a seagoing vessel owned by States armed forces, wearing clear external marks, Commanded by an officer and manned by naval personnel.
11 HMAS Perth, at the time she was commissioned by Australian Navy fulfilled all condition of a warship, thus she was entitled on sovereign immunity status.
Whether or not such status still follows her 8 All 4" Gun Turrets are missing.
It is known that S2 4" received a direct hit and was blown over the side.
It is not known what happened to the other three turrets.
Many items have apparently been removed from the wreck by salvagers.
Photos Of The Perth & HoustonWrecks Today (online)http://www.perthone.com/pwre.html, (06 April 2014).
9 Linton Besser, Dan Oakes and Norman Hermant,HMAS Perth: WWII warship grave stripped by salvagers (online), http://www.abc.net.au/news/2013-12-13/outrage-aswarship-grave-stripped-by-salvagers/5156320,(21 of April 2014).
10 Article 3, Paragraph (1), International Convention For The Unification Of Certain Rules Concerning The Immunity Of State-Owned Ships 1926.
11 Article 29, United Nations Convention on Law of the Sea 1982 (UNCLOS 1982).
wreck is one of the questions this paper will try to analyze.
Location of the wreck further complicates legal status of HMAS Perth.
As is regulated in UNCLOS 1982, territorial sea is an adjacent belt of sea, 12 governed by sovereignty of coastal State, 13 which is incidental and does not need to be established.
14 Such sovereignty is only limited by innocent passage, which is “right of a foreign vessel to travel to a country‟s maritime belt without paying a tall”.
15 Every action, such as for example salvaging efforts of a wreck, has to be governed by coastal States national laws.
Clearly the conflict of valid states jurisdiction occurs in case of HMAS Perth wreck.
Indonesian sovereignty extends over an area where HMAS Perth‟s wreck lies giving Indonesia exclusive rights over its territorial sea, while Australia as an identifiable owner of its „sovereign wreck‟ has a valid right to claim the wreck based on sovereign prerogative.
This paper will analyze closely what sort of rights and obligations both state have in regard to 12 Ibid., Article 2 paragraph (1).
13 Ibid.
14 Aust, Anthony,Handbook of International Law, Cambridge University Press, New York, 2005, page 302.
15 Bryan A. Garner, Black’s Law Dictionary,Thomson Reuters, USA, 2009, page 860. http://www.perthone.com/pwre.html http://www.abc.net.au/news/norman-hermant/166882 http://www.abc.net.au/news/norman-hermant/166882 http://www.abc.net.au/news/2013-12-13/outrage-as-warship-grave-stripped-by-salvagers/5156320 http://www.abc.net.au/news/2013-12-13/outrage-as-warship-grave-stripped-by-salvagers/5156320 106 HMAS Perth‟s wreck, and give suggestion on what steps should be taken to reach a mutually beneficiary solution.
II.
METHODE OF RESEARCH This writing use juridical-normative method, including reviewing and analyzing the rules of international law concerning The Law of the Sea, protection of warship wrecks and laws considering salvaging, as well conducting a comprehensive analysis of Indonesian National Law.
Further research will be conducted over national legal acts in Indonesia and comparative study to Australian legislature products considering warship wrecks, their protection and salvage.
The writer has intention to address municipal court decisions of international character as well, to find out what sort of law was used to resolve a case considering salvaging of warship wrecks.
The approach in this paper is the Statute Approach, which in this research will explore the nature of legal mattersformal and Case Approach in-depth analysis of the cases.
Hence law material used more emphasis on secondary data, which in this case comes from the material obtained, such as primary legal materials and secondary legal materials.
III.
RESULT AND DISCUSSION A.
Legal Status of HMAS Perth’s Wreck a.
Records of HMAS Perth’s Service HMAS Perth English made Light Cruiser, made and assembled in Portsmouth Naval Dockyard, and commissioned into the Royal Navy as HMAS Amphion on 15 June 1936.
Three years later she was bought by the Australian Government and was commissioned into Royal Australian Navy (RAN) on 29 June 1939.
Cruiser Amphion was officially renamed as HMAS Perth on 10 July 1939 in a ceremony led by Princess Marina, The Duchess of Kent.
16 She reached Australia on 31 March 1940 and HMAS Perth got “engaged on patrol and escort duties in Australian waters.” 17 HMAS Perth got new orders to escort seventh Middle East Convoy, US 7, on 28 November 1940, accompanied by ships of Royal Navy, Royal Australian 16 Anonimus, HMAS Perth (I) (online), Navy, http://www.navy.gov.au/hmas-perth-i (03 July 2014).
17 Loc.
Cit., AWM.
http://www.navy.gov.au/hmas-perth-i%20(03 107 Navy, and Royal Indian Navy.
A first real war experience that HMAS Pert had was when she joined Mediterranean Fleet, 7th Cruiser Squadron under Admiral Andrew Cunningham‟s command.
HMAS Perth was involved in the evacuations of Crete and Greece in April and May 1941, “in the course of which she was badly damaged by bombing.” 18 HMAS Perth sailed towards Alexandria for repairs.
On completion of repairs she joined Fleet units of Syrian coast in June 1941 and got involved in offensive sweep to intercept Vichy warships.
19 In August 1941 HMAS Perth rejoined Royal Australian Navy and, 20 and on 29 January 1942 HMAS Perth together with several other Australian cruisers was transferred to Australian and New Zealand Army Corps under command of US navy.
21 Escort of military convoy MS4 for passage to Singapore was its duty under US command, and it got detached from MS4 after fall of Singapore, joining Western Striking Force of American British Dutch Australian (ABDA) Command in East Indies.
18 Loc.Cit., AWM.
19 Geoffrey B Mason, Service History of Royal Navy Warships in World War II (online), http://www.naval-history.net/xGM-Chrono-06CLPerth.htm, (05 Jully 2014).
20 Ibid.
21 Ibid.
HMAS Perth arrived at Batavia on 24 February 1942 where she got attacked by Japanese aircraft without sustaining any damage.
22 She joined combined striking force “comprising Dutch cruisers De Ruyter and Java, HMS Electra, US Cruiser Houston, HM Destroyers Electra, Encounter and Jupiter Dutch Destroyers De Witte and Kortenaer, US Destroyers John D Edwards Alden, and John DF Ford” 23 , led by Dutch Admiral Karel Doorman.
Allied forces were defeated in Battle of Java Sea on 27 February 1942 24 where a large number of destroyers sunk.
25 HMAS Perth and USS Houston managed to break off and arrived to Tanjung Priuk on 28 February 1942 to refuel.
Both ships got orders to escape through the Sunda strait and sail to Tjilatap on the south coast of Java.
Allied intelligence that was received by HMAS Perth and USS Houston was that strait was clear of the enemy fleet, but this intelligence was at least 24 hours late, 26 causing both ships to clash with Japanese invasion force 22 Loc.Cit., Navy.
23 Loc.Cit., Naval History.
24 Loc.Cit., Donald, page 335.
25 “The Dutch cruisers were sunk and Exeter badly damaged, while most of the destroyers were sunk or withdrew as their torpedoes were exhausted.” Loc.Cit., AWM.
26 Loc.cit., PerthOne.
http://www.naval-history.net/xGM-Chrono-06CL-Perth.htm http://www.naval-history.net/xGM-Chrono-06CL-Perth.htm 108 assigned for western Java.
27 The enemy attacked from all sides, but HMAS Perth sustained little damage.
Realizing that ship is out of ammunition, Captain H.M.L Waller, of HMAS Perth attempted to force a passage to Sunda strait, when ship got striked by three torpedoes and consequently sank at 00.25 on 1 March 1942.
28 “Of the Perth's company of 686, which included four civilians canteen staff and six RAAF personnel for operating and servicing her aircraft, only 218 (including one civilian and two RAAF) were eventually repatriated; the remainder was killed during, or soon after, the action, or died as prisoners of war.” 29 b. Warship Status and Sovereign Immunity of HMAS Perth Warship is defined as “a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” 30 The Australian Government purchased HMAS Perth, and commissioned 27 Loc.cit., AWM.
28 Loc.cit., AWM.
29 Ibid.
30 Supra Note 13. her to Royal Australian Navy on 29 June 1939, thus the condition of belonging to armed forces of a State is fulfilled.
Further, it needs to bear distinguishable external marks stating the nationality of a ship.
By looking at several pictures from era at which HMAS Perth sailed as well as official data collected, it is visible that she belonged to Royal Australian Navy.
31 Than ship needs to be under command of an officer, commissioned by government.
On 24 October 1941 Captain Hector Macdonald Laws Waller assumed command over HMAS Perth.
Captain Waller joined Royal Australian Navy in 1913 by entering Royal Australian Naval College, and graduated in 1917.
32 Personnel on board of HMAS Perth were in total 681 out of which 671 were man who were a part of the navy, as naval personnel.
HMAS Perth before it sank was in service of the Australian Government, was a navy owned ship, bearing clear nationality marks, under command of an 31 A Brief History of the Australian Cruiser HMAS Perth (online), http://www.perthone.com /perth.htm, (19 July 2014); Australian Navy, HMAS Perth (I) (online), http://www.navy.gov.au /hmas-perth-i, (19 July 2014); Australian War Memorial, The Loss of HMAS Perth, 1 March 1942 (online), http://www.awm.gov.au/encyclopedia/perth/loss/, (19 July 2014).
32 Captain Hector MacDonald Laws Waller (online), http://defence-honours-tribunal.gov .au/wpcontent/uploads/2013/01/AF13050626.pdf, (05 July 2014).
http://www.awm.gov.au/encyclopedia/perth/loss/ 109 officer, and manned by naval personnel, thus HMAS Perth had a status of a warship.
The use of warships in general is of non-commercial nature.
Such fact bestowed sovereign immunity on the warship as regulated in Article 32 of UNCLOS 1982.
Sovereign immunity means that a warship shall not be “subject to seizure, arrest or detention by any legal process, nor to any proceedings in REM” 33 Historical records show the fact that in the short period that HMAS Perth was a part of Royal Australian Navy, she was used for non-commercial purpose by Australian Government, entitling HMAS Perth on sovereign immunity status.
c. HMAS Perth as a Sovereign wreck and Loss of Sovereign Wreck Status Warship used by a State for noncommercial purpose at the time of sinking has „sovereign wreck „status.
34 UNCLOS 1982 is silent on sovereign wrecks.
IMO Convention on Salvage 1989 (Convention 1989) stipulates that sunken warships and state owned vessels are entitled to sovereign immunity, that this convention shall not 33 Article 3, Paragraph (1), Convention 1926.
34 Craig JS Forrest, Culturally and Environmentally Sensitive Sunken Warships (online), Australian and New Zeland Maritime Law Journal, https://maritimejournal.murdoch.edu.au/ index.php/maritimejournal/article/view/181, (10 July 2014), 2012. apply if State that owns such vessel decides otherwise, 35 implying that sovereign immunity from the period at which these vessels were in service, applies to the wreck as well.
The UNESCO Convention on the Protection of Underwater Cultural Heritage from 2001 (Convention 2001) regulates considering State vessels as underwater cultural heritage, 36 retaining stand point that sovereign immunity status still applies.
37 HMAS Perth‟s status, analyzed in regard of Convention 1989 and Convention 2001 is a sovereign wreck, thus no action directed towards the wreck is allowed without explicit permission of the wreck‟s owner, in this case Australia.
Nevertheless, sovereign wreck could lose hers sovereign immunity status if: 1) It was abandoned by the State 38 There are two theories proposed, first that State expressly abandoned ownership over state vessel, and second, that abandonment is implied through State‟s inaction and passing of time.
39 Expressive abandonment is what is generally accepted by 35 Article 4, Paragraph (1) & (2), IMO Convention 1989.
36 Article 1, Number (8) Convention 2001.
37 Ibid., Article 2, Number (8).
38 Loc.Cit., Craig.
39 Ibid.
https://maritimejournal.murdoch.edu.au/%20index.php/maritimejournal/article/view/181 https://maritimejournal.murdoch.edu.au/%20index.php/maritimejournal/article/view/181 110 national laws 40 , as well is seen though state practices and municipal courts decisions.
41 Implied abandonment on the other hand is rejected by majority of states firmly claiming that sovereign right over warship wrecks is neitherextinguished by passing of time nor States inaction.
42 2) Taken by mutinous crew UNCLOS 1982 regulates that acts of piracy done by such a warship shall be “assimilated as acts committed by a private ship” 43 , implying that sovereign immunity is lost.
40 Abandoned Shipwreck Act of 1987 of United States.
41 United States of America v. Richard Steinmetz (973 F. 2d 212 – 1992); Baltimore, Crisfield & Onancock, Inc., v. United States of America, (140 F. 2d 230 – 1944); Sea Hunt, Inc. v Unidentified Shipwrecked Vessel or Vessels (221 F.3d 634 2000); Odyssey Marine Exploration Inc. v Unidentified shipwrecked vessel (No10-1037 – 2011).
42 Communication from the UK Foreign and Commonwealth Office, July 4, 2003; Communication from the French Foreign Ministry, November 28, 2003;Communication from the German Foreign Ministry, October 30, 2003; Communication from the Government of Japan, September 13, 2003; Communication from the Government of the Russian Federation, October 3, 2003; Embassy of Spain, Washington, DC, Note No.
128, December 19, 2002.
US Departement of State (public Notice 4614), Office of Ocean Affairs; Protection of Sunken Warships, Military Aircraft and Other Sunken Government Property (online), http://www.gpo.
gov/fdsys/pkg/FR-2004-02-05/pdf/04-2488.pdf, (09 July 2014).
43 Article 102, UNCLOS 1982.
3) The hostaltakeover by enemy forces The transfer of title occurs trough capture of warship in the ongoing battle before it actually sinks.
44 Historical records show that HMAS Perth sank with her crew, it was not taken over by the enemy nor her crew was mutinous, thus HMAS Perth‟s sovereign wreck status is not lost.
Regarding abandonment there are no records that Australia has abandoned HMAS Perth‟s Wreck, on contrary, recent statement made by the Department of Defense imply otherwise.
45 d. HMAS Perth as a War Grave 44 Rob Regan, When Lost Liners Become Found: An Examination of the Effectiveness of Present Maritime Legal and Statutory Regimes for Protecting Historic Wrecks in International Waters with Some Proposals for Change (online), Tulane Maritime Law Journal, Volume 29, http://www.rmsrepublic.com/reference/TulaneLawJournal.pdf, (21 July 2014), 2005, page 336; Admiral Nakhimov incidet – Russian warship captured by Japan, Loc.Cit.
Craig.
45 “The Chief of Navy, Vice Admiral Ray Griggs has written to his counterpart the Chief of the Indonesian Navy, Admiral Dr. Marsetio on this issue.
The Australian embassy Defence staff in Jakarta continues to work on this with Indonesian officials.
[...] As modern custodians of that heritage no one is more passionate than Navy in preserving the sites where our war dead still lie.” Australia‟s Departement of Defence, Media Reporting of Salvage Activity on the Wreck of HMAS Perth I (online), http://news.defence.gov.au/2013/12/14/mediareporting-of-salvage-activity-on-the-wreck-of-hmasperth-i/, (09 July 2013).
http://www.rms-republic.com/reference/TulaneLawJournal.pdf http://www.rms-republic.com/reference/TulaneLawJournal.pdf http://news.defence.gov.au/2013/12/14/media-reporting-of-salvage-activity-on-the-wreck-of-hmas-perth-i/ http://news.defence.gov.au/2013/12/14/media-reporting-of-salvage-activity-on-the-wreck-of-hmas-perth-i/ http://news.defence.gov.au/2013/12/14/media-reporting-of-salvage-activity-on-the-wreck-of-hmas-perth-i/ 111 The Contemporary International Law does not specifically regulates War Graves, but under The Geneva Conventions for the protection of war victims of 12 August 1949 and Additional Protocols of 8 June 1977 (Convention 1949), is stipulated obligation to the Parties to treat their dead with respect, 46 properly register them 47 and if possible conduct medical examination.
48 Great Britain government has “attached particular historical and sentimental value to the remains of the soldiers who went down with the ship” 49 by adopting the Protection of Military Remains Act 1986.
This Act forbids any excavation or diving or salvage, 50 even if such operation is conducted in international water, a person is held liable based on extraterritorial jurisdiction.
51 United States navy has clear policy considering warship wrecks, especially those that have human remains on board.
It stated that “salvers should not presume that sunken U. S. Warships have been abandoned by the United States.
Permission must be granted by the United 46 Article 18, Convention 1949.
47 Ibid., Article 19.
48 Ibid., Article 20.
49 Jason R. Harris, The Protection of Sunken Warships as Gravesites at Sea, Ocean and Coastal Law Journal, Volume 7.1, page 124.
50 Section 2, Paragraph (2), Protection of Military Remains Act 1986.
51 Ibid., Section 3, Paragraph (1), Letters (a) & (b).
States to salvage sunken U.S. warships, and as a matter of policy, the United States Government does not grant such permission with respect to ships that contain the remains of deceased servicemen [...]” 52 Australia and Indonesia do not have specific regulations on warship wrecks as war graves, but both states have regulations on acknowledgement and commemoration of its veterans.
53 HMAS Perth sank with more than a half of its naval personnel, thus it can be presumed that some of their remains are still trapped within the wreck.
Thus under both states national laws, respect should be given towards these veterans and their final resting ground protected.
B.
Rights And Obligations Of Indonesia And Australia Regarding Hmas Perth’s Wreck 52 Robert S. Neyland, Sovereign Immunity and the Management of United States Naval Shipwrecks (online), http://www.history.navy.mil/branches/org12-7h.htm, (13 July 2014).
53 War Cabinet decision of 10 March 1922; Indonesian Government RegulationNumber 1 Year 2010 Considering the Board of Title,Mark of Services, and Mark of Honor.
(Peraturan Pemerintah Republik Indonesia Nomor 1 Tahun 2010 Tentang Dewan Gelar, Tanda Jasa, Dan Tanda Kehormatan).
http://www.history.navy.mil/branches/org12-7h.htm 112 a. Territorial Sea Regime and Sovereign Immunity of Warship Wreck Sovereignty of the coastal State over its territorial waters is unquestionable.
In case of foreign flag state, shipwrecks discovery in territorial waters, the coastal State has duty only to inform the flag state of discovery.
Clearly, in such case there is a clash between two types of State jurisdictions, exclusive jurisdiction of coastal States over its territorial waters, and of Flag State over its sovereign wreck.
Innocent passage is the only limitation of coastal state‟s sovereignty over its territorial sea, 54 thus, “the activities related to the recovery of archaeological and historical objects in these waters, therefore, are governed exclusively by the laws of the coastal State”.
55 However, Indonesia should do its best to preserve good neighboring relations by preventing any unauthorized action directed towards recovering HMAS Perth‟s Wreck.
Such obligation rises out of international law principle stating Sic utere tu et alienum non 54 Article 17, UNCLOS 1982.
55 Moritaka Hayashi, 1996, Archeological and Historical Objects under The United Nations Convention on the Law of the Sea, Marine Policy, Vol.
20, No.
4, 1996, page 293. laedas 56 , where Indonesia should not allow its territorial sea be to used by salvagers in their effort to salvage HMAS Perth, especially if Australia, as owner of the wreck, did not give permit.
It is every State‟s duty to fulfill in a good faith the obligation assumed by a State, either obligation originating from general principle of international law, international rule or agreement between state.
57 b.
Right of Salvage of HMAS Perth The only flag State has the exclusive right to decide whether or not there will be any salvaging operation directed towards the sovereign wreck.
58 One of the reasons for retaining control over sunken state vessel is to protect important information for its national security, which could be endangered if recovery was made by another state.
59 56 “Use your own property in such manner as not to injure that of another.” 57 Resolution adopted by the General Assembly 2625 (XXV).
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
58 Article 4, Paragraph 1 IMO Convention 1989.
59 Natalino Ronizzoti, 2000, The Legal Regime ofWrecks of Warships and Other State-Owned Ship in International Law(online),Yearbook of Institute of International Law, Rhodes Session, Volume 74,http://www.idiiil.org/idiE/annuaireE/2011/Question2_Ronzitti2012-10-17.pdf, (12 July 2014).
http://www.idi-iil.org/idiE/annuaireE/2011/Question2_Ronzitti-2012-10-17.pdf http://www.idi-iil.org/idiE/annuaireE/2011/Question2_Ronzitti-2012-10-17.pdf http://www.idi-iil.org/idiE/annuaireE/2011/Question2_Ronzitti-2012-10-17.pdf 113 Location of warship wreck is the only factor that could influence the power that flag state has over it.
The Coastal State has sovereignty over its territorial sea, thus if location of warship wreck which belong to a foreign flag State is within territorial sea of another state, such salvaging operation are governed exclusively by laws of coastal State.
60 Nairobi Convention 2007 proscribes only an option for a State party to extend application of convention to its territorial sea 61 , while UNESCO Convention 2001 stipulates that “Coastal States have the exclusive right to regulate and authorize activities directed at underwater cultural heritage in their internal waters, archipelago waters and territorial sea.” 62 c. Indonesian and Australian National Legislation considering Warship Wrecks and Salvage 1) Indonesian National Legislation Since year 2000 there has been growing interest in Indonesia regulating cultural and archeological objects found at 60 Loc.Cit., Moritaka.
61 Article 3, Paragraph (2), Nairobi Convention 2007.
62 Article 7, Paragraph (1), UNESCO Convention 2001. sea.
63 Act of Republic Indonesia Number 11 Year 2010 considering Cultural Heritage Undang-Undang Republik Indonesia Nomor 11 Tahun 2010 Tentang Cagar Budaya (Act 11/2010) regulates considering cultural heritage on land or in water, 64 giving legal protection to such heritage, which has to be established as such, if not it is not entitled on protection by this Act.
HMAS Perth is not established as Cultural heritage under Act 11/2010, thus enjoys no protection.
Indonesian President have issued Presidential Decree Number 12 Of 2009 About Amendment to Presidential Decree Number 19 Year 2007 Concerning Appointment of National Committee and Utilization of Valuable Items originating from Sunken Ships Cargo Keputusan Presiden Republik Indonesia Nomor 12 Tahun 2009 Tentang Perubahan Atas Keputusan Presiden Nomor 19 Tahun 2007 Tentang Panitia Nasional Pengangkatan Dan Pemanfaatan Benda Berharga Asal Muatan Kapal Yang Tenggelam (Decision 12/2009), forming National Committee 63 Harry Octavianus Sofian, Permasalahan Arkeologi Bawah Air Di Indonesia Underwater Archaeology Issues InIndonesia (online), Jurnal Kapata Arkeologi, Jurnal Arkeologi Wilayah Maluku Dan Maluku Utara Balai Arkeologi Ambon, Vol.
6 No.
11, https://www.academia.edu/3540870/Permasalahan_A rkeologi_Bawah_Air_di_Indonesia_In_Indonesian_L anguage_, (21 July 2014), 2010.
64 Article 1, Number (1) Act 11/2010.
https://www.academia.edu/3540870/Permasalahan_Arkeologi_Bawah_Air_di_Indonesia_In_Indonesian_Language_ https://www.academia.edu/3540870/Permasalahan_Arkeologi_Bawah_Air_di_Indonesia_In_Indonesian_Language_ https://www.academia.edu/3540870/Permasalahan_Arkeologi_Bawah_Air_di_Indonesia_In_Indonesian_Language_ 114 whose duty, amongst others, is to organize coordination of monitoring activities, supervision, and control over the process of surveying, removal and utilization valuable cargo from sunken ships.
65 Ministry for Culture 66 is authorized to issue license to those individuals or organization interested in conducting survey, salvaging or usage 67 of cultural heritage objects, found on land or in water, as regulated in Government Regulation of Republic Indonesia number 10 Year 1993 Considering Implementation of Act Number 5 Year 1992 considering Cultural Heritage Objects Peraturan Pemerintah Republik Indonesia Nomor 10 Tahun 1993 Tentang Pelaksanaan UndangUndang Nomor 5 Tahun 1992 Tentang Benda Cagar Budaya (Regulation 10/1993).
Salvaging of ships in distress is regulated in Act of Republic Indonesia Number 17 Year 2008 considering Shipping – Undang-Undang Republik Indonesia Nomor 17 Tahun 2008 tentang Pelayaran (Act 17/2008).
Salvaging in Indonesian waters is done towards ships wreck, and its cargo that experienced accident or it sank.
68 Act 17/2008 is silent on type of ship wreck, 65 Ibid., letter (d).
66 Article 17, Paragraph (1), Regulation 10/1993.
67 Ibid., Paragraph (2).
68 Ibid., Article 204, Paragraph (1).
whether commercial vessels only or includes State vessels as well, nor it regulates the period of time, meaning it applies on ship that just wrecked or ship that has been in such condition for a while.
The permit for salvaging in Indonesian waters is issued by Minister in charge of shipping.
69 Ministry has further regulated salvaging operations through Minister of Transportation‟s Regulation Number PM 71 Year 2013 considering Salvage and/or Under-water Work – Peraturan Menteri Perhubungan Nomor PM 71 Tahun 2013 tentang Salvage dan/atau Pekerjaan Bawah Air (Regulation PM 71/2013).
This regulation refers to ships wreck as any ship that sank, or stranded, or washed on shore and has been abandoned.
70 The salvage operation, according to Regulation PM 71/2013, needs a permit from General Director 71 within Ministry of Transportation, and can be conducted only by specially licensed business.
72 Obligation to remove wreck falls on wreck‟s owner 73 , if discovered wreck is unclaimed than obligation to remove wreck goes to Head of 69 Ibid., Paragraph (2).
70 Article 1, Number (3), Regulation PM 71/2013.
71 Ibid., Article 6, Paragraph (1).
72 Ibid., Article 3, Paragraph (1).
73 Ibid., Article 13, Paragraph (1).
115 Technical Assistance Unit of nearest Port.
74 Specific salvaging of warship is not regulated within Regulation PM 71/2013, so presumably general stipulations apply.
Sovereign status of warship is acknowledged in Indonesian law.
Act of Republic Indonesia Number 34 Year 2004 considering Indonesian National Army – Undang-undang Republik Indonesia Nomor 34 Tahun 2004 Tentang Tentara Nasional Indonesia (Act 34/2004) regulates that one of the duties of Navy is to conduct Naval diplomacy by giving support to national policy abroad set by Indonesian government.
75 Here is referred to diplomatic function of Navy recognized by International Customary Law, seen through diplomatic immunity and full sovereignty as part of every State‟s warship sailing foreign waters.
76 2) Australian National Legislation The sovereign status of warship wrecks is recognized through international customary law as well through state practices, as previously discused, thus HMAS Perth as sovereign wreck falls under Australian Jurisdiction.
While Indonesian 74 Ibid., Article 15, Paragraph (3).
75 Article 9, letter (c), Act 34/2004.
76 Clarification of Article 9, Letter (c) of Act 34/2004.
law is silent on warship wrecks, Australian law is governing shipwrecks, especially wrecks of historical importance, focus solely on wrecks protection.
However, Historic Shipwreck‟s Act 1976 stipulation considering which shipwreck is considered as historic shipwreck does not apply on HMAS Perth, because one of the condition is that shipwreck needs to be situated in Australian waters or in waters above the continental shelf of Australia, while HMAS Perth‟s wreck is within Indonesian Territorial Sea.
d. Duty to Cooperate Under International Law Indonesia and Australia are both State Parties to UNCLOS 1982.
77 It is stipulated in UNCLOS 1982 that for the sake of protection of historical objects found at sea the States cooperation is advised.
78 Duty to cooperate proscribed by contemporary international law does not diminish the Coastal State's exclusive jurisdiction, but it underlines general principles of international law.
79 77 Treatties Office Database, Summary of Treaties (online), http://ec.europa.eu/world/ agreements/ prepareCreateTreatiesWorkspace/treatiesGeneralData .do?redirect=true&treatyId=511 (20 July 2014).
78 Article 303, Paragraph 1, UNCLOS 1982.
79 Loc.Cit., Craig.
http://ec.europa.eu/world/%20agreements/%20prepareCreateTreatiesWorkspace/treatiesGeneralData.do?redirect=true&treatyId=511 http://ec.europa.eu/world/%20agreements/%20prepareCreateTreatiesWorkspace/treatiesGeneralData.do?redirect=true&treatyId=511 http://ec.europa.eu/world/%20agreements/%20prepareCreateTreatiesWorkspace/treatiesGeneralData.do?redirect=true&treatyId=511 116 There are many precedents on subject of States cooperation 80 regarding protection and salvaging of wrecks, where two or more states have claimed.
The Agreement between the Netherlands and Australia Concerning Old Dutch Shipwrecks 81 found in Western Australian coast is an example how a state can express its interest in shipwrecks once owned by it.
Australia considered that passing of 300 years without any attempt to locate shipwrecks is implied abandonment, Netherlands disagreed, and the issue was resolved through agreement in 1972.
82 IV.
CONCLUSION 80 “Exchange of Notes Constituting an Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Italy regarding the salvage of H.M.S.
Spartan, Rome, Nov. 6, 1952, 158 U.N.T.S.
432 (1952); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of South Africa regarding the salvage of H.M.S.
Birkenhead, Pretoria, Sept. 27, 1989, U.K.T.S.
No.
3 (1990), Cm.
906, 60 BRIT.
Y.B.
INVL L. 671 (1990); Agreement between the Government of the French Republic and the Government of the United States of America concerning the wreck of the CSS Alabama, Paris, Oct. 3, 1989, T.I.A.S.
No.
11687, UN, LOS BULL.
No.
20, Mar.
1992”; J. Ashley Roach, Sunken Warships and Military Craft (online), http://www.history.navy.mil/branches/org12-7j.htm, (13 July 2014).
81 “Zuytdrop (1712), Batavia (1629), Vergulde Draedk (1656) and Zeewyk (1727).” Australia and the Netherlands Concerning Old Dutch Shipwrecks (online), http://www.environment.
gov.au/node/20233, (09 July 2014).
82 Loc.Cit., Patrick.
Warships are seagoing vessels entitled to sovereign immunity status.
The warship wreck status is not clearly regulated under contemporary international law, but customary law and state practices agree that warship wreck is a sovereign wreck.
Only state that owns sovereign wreck has the exclusive right to manage activities directed on sovereign wreck.
If the wreck was expressively abandoned by a State, or warship was taken by mutinous crew or a takeover by enemy forces before it sank, would cause a wreck to lose its sovereign status.
Location of the wreck does not diminish the right of the owner State.
HMAS Perth‟s wreck is in Indonesian territorial sea, giving Indonesia control over access while Australia still remains an owner.
UNCLOS 1982 in Article 303 recommends cooperation in cases such as of HMAS Perth.
International law should formally regulate the status of sovereign wrecks.
Leaning on customary law, as well on state practices, gives little if non protection towards these wrecks.
Indonesia and Australia should cooperate on the issue.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.02 | 163 Law Protection Mechanism of Wage Equality for Women Worker: Indonesian Law and Human Right Perspective Sukarmia, Ranitya Ganindhab*, Azahlia Umarc aFaculty of Law, Universitas Brawijaya, Email: sukarmi@ub.ac.id b*Faculty of Law, Universitas Brawijaya Email: r.ganindha@ub.ac.id bFaculty of Law, Universitas Brawijaya Email: azahliaumar2012@gmail.com Submitted : 2020-08-28 | Accepted : 2020-09-27 Abstract: Women labours in Indonesia still experiencing wage discrimination with male labours for works of equal value.
Indonesia's efforts to provide protection against discrimination in wage for women labor is by ratifying ILO Convention No.
100 of 1951 and the CEDAW Convention 1979.
This journal aims to find out the form of protection of wage discrimination for women labours in Indonesia in accordance with the mandate of the ILO and CEDAW Conventions and the protection mechanism of wage discrimination given by Indonesia to women labours.
This journal is a normative study, with a statute approach and a conceptual approach.
This journal analyzes that the form of protection of wage discrimination Against women labours in Indonesia is through legislative action through ratification of ILO Convention No.
100 of 1951 with Law No.
80 of 1957 concerning the approval of ILO Conventions No.
100 Regarding Wages for Men and Women for Work of Equal Value, especially those contained in Article 1 letter (b) and Article 2, the ratification of CEDAW through Law No.
7 of 1984 concerning Ratification of the Convention Concerning the Elimination of All Forms of Discrimination Against Women especially those contained in Article 11 Letter (d), Law No.
13 of 2003 concerning Employment specifically regulated generally in Article 5, Article 6, and Article 88 Paragraph (3) Letter (i).
The results shows that Indonesia does not yet have regulations that contain special protection mechanisms for wage discrimination provided by Indonesia to women workers in the form of sanctions, reporting mechanisms or special supervision of discriminatory practices, which are not yet regulated either in the Employment Act or the Law ratified by the Convention ILO and CEDAW.
Keywords: protection; discrimination; wages; women workers; ilo conventions; cedaw.
I.
INTRODUCTION Indonesia is one of the countries that have ratified the International Labor Organization (ILO) conventions, which since Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 164 | Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker… July 12, 1950 have been members of the International Labor Organization.
1 Indonesia became the first country in Asia and was in fifth position in the whole world as a country that had ratified 18 of its conventions.
2 One important point in the convention is gender equality between women and men workers.3 One strategic issue that is widely discussed by developing countries is related to the issue of gender equality.
Wage disparities by gender still occur in Indonesia and almost all countries in the world.
The patriarchal culture is still visible at the level of practice.
4 Women have lower achievement than men in various fields.
Such conditions are not a good thing in the process of sustainable development.
Because, it should be between men and women in an equal position.5 Issues related to gender equality are actually not new issues.
The increasing level of women's education and awareness of women's empowerment make bargaining positions between men and women to be in an equal position.
However, that does not mean there are no problems at all in gender equality, especially in relation to the scope of work.
Frequently not realized, an equal position between women and male workers can make the competitiveness of the 1 Preamble of the Republic of Indonesia Law No.80 of 1957 Concerning Approval of the International Labor Organization Conference No.
100 Regarding Equal Remuneration for Men and Women Workers for Work of Equal Value.
2 ILO, 'The ILO in Indonesia' (2014) Jakarta: ILO Publisher 3 ILO Convention No.
100 and ILO Convention No.111 4 Hennigusnia, ‘Gender Gap between Gender in Indonesia Glass Ceiling or Sticky Floor?
'(2014) Vol.9, Peneliti Pertama Pusat Litbag Ketenagakerjaan Kementrian Ketenagakerjaan RI,(here in after Hennigusnia) 5 Central Bureau of Statistics, Gender Statistics Thematic-Portrait of Gender Inequality in workforce increase.
Research conducted by Klasen and Lammana 6 shows that the reduction in gender disparities in the education area cannot bring significant benefits to economic growth if women's access to productive employment is restricted.
In the study also conveyed, existing inequality could reach four times the economic growth.
In other words, gender inequality makes economic growth not optimal.7 The rights and obligations of women workers in Indonesia are regulated in Law no.
13 of 2003 concerning Employment.
Other regulations also contribute to regulating women's worker rights starting from Article 27 paragraph (2) of the 1945 Constitution of the Republic of Indonesia, Law No.
7 of 1984 concerning the Elimination of All Forms of Discrimination against Women, ILO Convention No.
111 concerning AntiDiscrimination in Position and Occupation which has been ratified by Indonesia by Law No.
21 of 1999, and ILO Convention No.
100 concerning Wage Equality which has been ratified by Indonesia with Law No.
80 of 1957.8 Based on the results of the population census of the Central Statistics Agency or BPS in 2018, the total population of women in Indonesia is 131.9 million, while the Economy, (Jakarta: Publisher: Ministry of PPA, 2016) 6 Stephen Klasen, Francesca Lamanna, ‘The Impact of Gender Inequality in Education and Employment on Economic Growth: New Evidence for a Panel of Countries’ (2009) 15(3) Feminist Economics, 91-132 7 Central Bureau of Statistics, Thematic Gender Statistics-Portrait of Gender Inequality in Economy, (Jakarta: Publisher: Ministry of PPA, 2016) 8 Annida Addiniaty, ‘Weak Legal Protection for Women Workers’ (2013) Journal of Rechtvinding Online Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker…| 165 number of men is 134 million, an almost equal number of men and women shows that women's position in the community is just as important as men and also indicates that women are one of the contributors to the progress of the country, particularly in the field of employment.9 The ratio of women's wages to men's wages for the same work is only 0.68 or 68% of men's wages.
This value has decreased by comparing it 10 years ago where the ratio was 0.79 or 79%.
This shows that Indonesia must catch up with other countries in terms of gender equality in the economic field, which is equality between wages.10 All women have rights that are specifically accommodated by law.
Women are a group that is considered vulnerable and get special treatment in human rights protection.
Basically, women get rights protection in accordance with what is stipulated in the law.
The basic principle underlying rights for women is the right of a gender perspective and anti-discrimination which means that women have the same rights and positions as men in various fields such as education, law, work, politics, rights in relation to citizenship, rights in marriage and obligations.11 With regard to women workers, the aim of the workers is of course to gain benefit economically through decent remuneration including women workers.
Many women workers who work in urban areas with a high level of education or work in the informal sector with a low level of education want to 9 Desia Rakhna Banjari, ‘Implementation and Protection of Access to Women's Workers' Rights in Indonesia: Review Law No.
13 of 2003 concerning Employment of the ILO Convention’ (2019) 10(1) Jurnal HAM (here in after Banjari) 10 Martesa Husna Laili, Anie Damayanti, ‘Intergender Wage Gaps in Indonesia: Empirical Evidence in the Manufacturing Sector’ (2018) Indonesian Journal of Economics and Development, p.2 improve the standard of living of the family through good income.
Women who receive unfair treatment at work will bring up the view that women are born to do far more limited work than men with lower employment status.
Developing countries have a number of women with lower levels of education so that women are forced to become informal workers with lower wages.
In addition, the tendency for women who work in the informal sector is not to get other rights that should be obtained as workers.12 The International Labor Organization (2012) states that factors that play a major obstacle to women's ability to transition from the informal labor market to the formal labor market, especially in the non-traditional sector are women's household roles and responsibilities, women's subordinate status in gender relations, and patriarchal attitude towards women's participation in economic and community life.13 The development of the labor market in Indonesia in 2014 and 2015 shows that there are problems potentially have threatening human resource development, namely the existence of gender discrimination in labor, where many women work with low wages and more limited career development prospects.
This makes the level of participation of women in the workforce still very low when compared to men.14 One of the media in Indonesia in 2016 stated that women workers in various regions in Indonesia still experience discrimination in 11 Rhona K. M Smith, et.al.
2008, Human Rights Law, Knut D. Asplund, Suparman Marzuki, Eko Riyadi (Editor), (Yogyakarta: PUSHAM UII), p. 269.
12 Syamsiah Achmad in Dwi Edi Wibowo, Double Role of Women and Gender Equality, accessed from http://ejournal.iainpekalongan.ac.id/index.php/Muwazah/ article/view/6/6 access date June 20, 2020 13 Hennigusnia, above n.4, p. 90 14 Banjari, above n.9 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 166 | Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker… the workplace.
The forms of discrimination is vary, ranging from disparities in work rights to sexual harassment.15 Seeing the problems that occur to women workers, the state as an entity that has the obligation to guarantee the implementation of equality and prevent discrimination against women in the world of work is responsible for providing protection for equal pay between women workers and male workers who have the same work and productivity.
This protection also provides protection for discrimination against women workers that has occurred as mentioned above.
II.
LEGAL MATERIALS AND METHODS Based on the background above, the legal issues in this journal are: 1.
How is the form of Wage Discrimination Protection for Women Workers in Indonesia in accordance with the Mandate of the ILO and CEDAW Conventions?
2.
How is the rotection mechanism for wage discrimination that Indonesia provides to Women Workers?
This journal is a normative study, using a statute approach and a conceptual approach.
The statute approach is carried out by analyzing various laws and regulations in Indonesia as well as international conventions related to the rights of women workers, especially concerning protection from wage discrimination to understand the philosophical content in it.
To support the study to be more comprehensive conceptual approach is also used, namely studying the views, doctrines, concepts and principles of law in order to build a legal argument in solving the issues raised.
III.
RESULT AND DISCUSSION Forms of Protection for Wage Discrimination against Women in Indonesia in Accordance with the Conventions of the ILO and CEDAW Conventions Wage are the main rights possessed by every worker as a form of reciprocity from the obligations they have performed.
16 However, so far the wages rising has been based more on pressure from workers, trade unions, or NGOs who have requested wages raise for labours.
The relationship between employers and women workers is considered not as a mutually beneficial partner, but women workers are considered as a tools to seek multiple benefits.
Because women workers are considered to be more diligent and easy to accept the situation.
Employers do not realize that by increasing the role of women workers by considering them as partners in carrying out company activities rather than ‘printing machines’, it will create more conducive labor relations between workers and employers.
According to the International Labor Organization (ILO) there is still a gap between gender wages in Indonesia with a difference of up to 19% in 2012.
Women earn an average wage of 81% of men's wages, despite having the same level of education and experience.17 15 Priska Sari Pratiwi, 'Garment Factory Workers Often Experience Sexual Violence', CNNIndonesia, aceessed September 23, 2017, https://www.cnnindonesia.com/national/2016112 4152933-20-175048/garment-factory-workersoften-experienced-sexual violence/ 16 Article 1 Number (35) of Law No.
13 of 2003 concerning Employment 17 Annida Addiniaty , above n.8 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker…| 167 Picture1.
Average Worker Wages Source: BPS.go.id Based on data released by the Central Statistics Agency in the 2019 Economic Report there is a widening gap between the wages of women and men workers.
The average amount of wages given to male workers is higher than the average wages of women workers.
Recorded in the report in the period of 2015-February 2019 the difference between the wages of both of them reached Rp.
492.2 (thousand).
More detailed breakdowns related to wage differences are as follows, in 2015 recorded a difference of Rp.
269 thousand, then in 2016 amounted to Rp.
458.4 thousand, the number increased in 2017 Rp.
554 thousand, and an increase in the gap occurred in 2018 Rp.
560, 6 thousand.
Whereas in 2019, the gap is widening reach Rp.
618.8 thousand.
18 BPS report stated that women were given lower wages because they were 18 The Central Bureau of Statistics, ‘Indonesia Economic Report 2019’, https://www.bps.go.id/publication/download.html ?nrbvfeve=N2NjNjhhZmM0M2FhMGQ4YjllOG VhZjQ3&xzmn=aHR0cHM6Ly93d3cuYnBzLmd vLmlkL3B1YmxpY2F0aW9uLzIwMTkvMDkv considered not contribute as much as male laborers.
Women have reproductive organs so that during menstruation, pregnancy and childbirth they may not be optimal at work.
In addition, the position of women as mothers which should take care of their children is considered a weakness of working women.
The problem of employment opportunities, wages, and situation or work position is a challenge for women workers in their status as labours.19 The level of participation of women workers in the workforce is quite high.
Women with productive age dominate the number of women workers.
Central Statistics Agency (BPS) Noted that the population of working age in Indonesia as of February 2020 is 199.4 million.
This number has increased by 2.92 million workers when compared to February 2019.
The Labor Force MTYvN2NjNjhhZmM0M2FhMGQ4YjllOGVhZj Q3L2xhcG9yYW4tcGVyZWtvbm9taWFuLWluZ G9uZXNpYS0yMDE5Lmh0bWw%3D&twoadfn oarfeauf=MjAyMC0xMS0wOSAwODo1Mjo1O Q%3D%3D, access date June 16, 2020 at 13.37 19 ibid 1.400.000 1.600.000 1.800.000 2.000.000 2.200.000 2.400.000 2.600.000 2.800.000 3.000.000 2015 2016 2017 2018 Februari 2019 R p .
Ju ta /B u la n Rata-rata Upah Pekerja Berdasarkan Gender 2016-2018 Sumber: Badan Pusat Statistik (BPS), 16 September 2019 perempuan laki-laki Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 168 | Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker… Potential Level (TPAK) surveyed by gender shows that male TPAK is higher than women.
In February 2020 the TPAK for women decreased by 94 points to 54.06% compared to February 2019 which was 55.50%.
The reaserch results showed 20 that discrimination is a major part of the real wage gap by gender in all wage distribution points, There is wage Gap Between Genders in Indonesia especially at the bottom of the wage distribution.
This fact strongly suggests that although Indonesian laws and regulations set equal wages and equal employment opportunities, there was still a lack of appreciation for women's skills in the labor market.
So as to achieve gender equality there needs to be strong law enforcement.21 In principle, legal protection is the protection provided by the law for human rights to avoid abuse as well as a form of recognition of human rights and dignity.
Legal protection covers all efforts given by law enforcers to provide guaranteed racial safety in terms of psychological, physical and various threat and disruption.
Legal protection is also interpreted as all legal norms or rules that can protect from interference.22 Protection for women workers is formulated through Article 76 paragraphs (1), (2), (3) and (4) Law No.
13 of 2003 concerning Employment, related to the special treatment of women workers with certain working hours, pregnant women workers, and women laborers under the age of 18.
The reason why women workers are 20 Research by Hennigusnia entitled 'Gender Gap Between Gender in Indonesia Glass Ceiling or Sticky Floor?'
(2014) Vol.9, First Researcher of the Ministry of Manpower Litbag of Labor 21 Hennigusnia, loc.
Cit, p.91 22 Umu Hilmy, ‘Pelanggaran dan Perlindungan Hukum Tenaga Kerja di Kabupaten Malang’, (2011) 23(3), Mimbar Hukum, p.431 given special protection is because women workers naturally have an important role and function in the life of society, namely the function of reproduction.23 Besides Article 76 Law No.
13 of 2003 concerning Employment, other forms of protection provided by that law are through Article 81, Article 82, Article 83, Article 84 and Article 93, Minister of labor Decree No.
224 of 2003 which includes rules of protection related to working hours at night, protection regarding menstruation (women workers can apply for menstrual leave), protection for having maternity leave which time limit is set by law, availability of lactation space in the workplace, recognition of equal work competence with male workers, prohibition of imposing dismissals without reason to women workers, the right to health checks, pregnancy and labor costs.
As a member of the ratification of ILO Conventions, Indonesia has two tasks at once, namely implement application measures that internationally supervised and official commitments to implement convention rules.
24 There are four main ILO Conventions which prohibit discrimination based on sex and promote gender equality including the Equal Wages Convention 1951 (No.100), Convention of Discrimination (Employment and Occupation), 1958 (No.111), Workers with Family Responsibility Convention, 1981 (No.156) and Convention of Pregnancy Protection, 2000 (No.183).25 Following are some ILO standard references to legal norms that affect women workers, as follows: 26 (a).Equality 23 Maimun, Hukum Ketenagakerjaan Suatu Pengantar, (Jakarta: PT.
Pradnya Paramita, 2007), p. 13 24 Banjari, above n.9, p.117 25 ILO, ‘The ILO in Indonesia’ (Jakarta: ILO Publisher, 2014) 26 Banjari, above n.9 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker…| 169 of wages; (b).Discrimination in employment and position; (c).
Protection of pregnancy; (d).
Workers with family responsibilities; ILO Convention No.
100 Concerning Equal Remuneration for Men and Women Workers for Work of the Same Value in 1951 contains arrangements on equal pay for work of the same value where standardized wages are required without discrimination based on gender.
In addition, the convention mandates to assess work objectively based on the contents of the work.27 Basically Article 28D paragraph (2) Constitution of the Republic of Indonesia which stated: "Everyone has the right to work and to receive compensation as well as fair and proper treatment in employment relations" has called for equal pay for all workers (including women workers) to be treated in a fair which is free from discrimination.
Other legal products in Indonesia which regulate equality of wages contained in Article 88 paragraph (1) and (2) Labor Law No.
13 of 2003.
Contained in Article 11 of Law No.7 of 1984 concerning Ratification of the Convention Regarding the Elimination of All Forms of Discrimination against Women, There are provisions for sanctions for employers who discriminate wages, as contained in Article 31 PP No.
8 of 1981.28 Other legal products in Indonesia which regulate labor wages are contained in Law No.
13 of 2003 concerning employment.
Article 5 states that, "Every worker has equal opportunity without discrimination to obtain work."
29 While Article 6 states, "Every worker has the right to receive equal treatment without employer 27 Article 1 (b) dan Article 2 ILO Covention No.100 concerning the Elimination of All Forms of Discrimination Against Women 28 Banjari, above n.9, p.120 29 Article 5 Law Number 13 of 2003 concerning Employment discrimination.
"30 Both articles regulate the acquisition and treatment of workers who must be free from discrimination where the meaning is still very broad in relation to what is categorized as 'treatment' whether it is limited to interaction between workers or workers and employers or includes wages as a form of work compensation.
Article 88 paragraph (1) and (2) of Law No.
13 of 2003 concerning Employment states:31 1.
Every worker / laborer has the right to earn income that fulfill a decent living for humanity.
2.
To create income that fulfills a decent living for humanity as referred to in paragraph (1), the government establishes a wage policy that protects workers / laborers.
3.
Wage policies that protect workers / laborers as referred to in paragraph (2) include: a. minimum wage; b. overtime wages; c. wages for those who do not come to work due to absent; d. Wage for those who do not come to work due to other activities outside of work; e. Wage for exercising his right to time off work; f. Wages form and payment method g. fines and deductions of wages; h. things that can be calculated with wages; i. proportional wage structure and scale; j.
Wage for severance pay; and k. Wage for income tax calculation.
30 Article 6 Law Number 13 of 2003 concerning Employment 31 Article 18 Law Number 13 of 2003 concerning Employment Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 170 | Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker… Based on the contents of the article above, workers (regardless of whether they are man or women) are entitled to a decent income for humanity guaranteed by the government's wage policy.
The remuneration category that is protected by government policy as mentioned in Article 88 Paragraph (3) generally states that anti-discrimination wage protection measures for women workers who have the same work and productivity as one of the wage protection categories in government policies, namely those contained in letter (i) which states 'proportional wages' as a reference in structuring and scaling out wages for workers.
Proportional 32 itself implies balanced, comparable, and in accordance with the proportions, in this case the proportion of wages received by laborers with the work that have been done, and the balance between wages received between workers where the work is have the same value.
Although the legal protection regulation in the Law No.
13 of 2003 concerning Employment have not answered all issues that are so broad and complex, but at least it is one step ahead and is expected to provide legal protection to workers, especially those concerning work requirements, working conditions and social guarantees and other work protection that can be used as a reference in the settlement of industrial relations disputes.
The implementation of legal protection, maintenance and improvement of welfare is the responsibility and obligation of the state.
The benefits of legal protection can provide workers with a sense of security so that they 32 Kamus Besar Bahasa Indonesia 33 Banjari, above n.9, p.121 34 Article 11 (1) (d) Law No.
7 of 1984 concerning Ratification of the Convention Concerning the can concentrate more on increasing motivation and work productivity.
The Ratification of Convention on the Elimination of All Forms of Discrimination Against Women (hereinafter referred to as CEDAW) by Indonesia through Law No.7 of 1984 concerning Ratification of the Convention Regarding the Elimination of All Forms of Discrimination Against Women is one form of efforts to protect women workers from discrimination.33 Article 11 Law No.7 of 1984 concerning Ratification of the Convention Concerning the Elimination of All Forms of Discrimination against Women states: "State parties must take all appropriate measures to eliminate women's discrimination in the field of work to ensure, based on equality of men and women, equal rights, in particular: (d) The right to the same wages, including benefits, and to equal treatment in terms of work of equal value, and equality of treatment in evaluating quality of work.34 Based on Article 11 above it is stated that state parties have an obligation to regulate the elimination of discrimination against women in employment to obtain the same basic rights as men.
In particular, the right to have a job as a human right, the right to equal employment opportunities, the right to choose a profession or work freely, the right to receive equal pay including all benefits, both for equal recognition of the value of work, or an assessment on the quality of work, the right to social security and the right to protection and work safety.
The CEDAW Convention has provided women workers with a clear form of Elimination of All Forms of Discrimination Against Women Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker…| 171 protection against all forms of discrimination in the work world, especially those concerning the right to equal wages, where there should be no discrimination or disparity between the wages of women workers and men in terms of work of equal value which in line with the mandate of ILO Convention No.
100 of 1951 and mandated by Law No.
13 of 2003 concerning employment.
Protection Mechanism for Wage Discrimination provided by Indonesia to Women Workers Wages play a very important role and a characteristic of an employment relationship.
In fact, wages are the main goal of a worker who does work for another person or legal entity.
That is become the reason for the government to participates in handling this wage problem through various policies as outlined in the Laws and Regulations.35 For workers, wages are something that must be fought for.
Wages are the main reason that workers commit themselves to their employers.
Wages are the right of every workers.
For this reason, the Government regulates various regulations that provide protection related to wages in Indonesia.
A decent minimum wage is an embodiment of a decent income and in accordance with the rights of workers.
Determination of the amount of wages is determined based on the calculation of the cost of living in an area.36 According to Article 1 number 30 of Law Number 13 of 2003 concerning Employment, wages are the right for workers or laborers received and expressed in the form of money in return 35 Suhartoyo, ‘Perlindungan Hukum Bagi Buruh Dalam Sistem Hukum Ketenagakerjaan Nasional’ (2019) 2(2), Adminitrative Law & Governance Journal, p.4 36 B. Siswanto Sastrohadiwiryo, Manajemen Tenaga Kerja Indonesia Pendekatan Administrasi dan Operasional, Cet.
2, p.15 from employers or employers for workers or laborers who are determined and paid according to the agreement work, agreements, or statutory regulations, including benefits for workers or laborers and their families for work and or services that have been or will be done.37 Citing the opinion of the Indonesian Minister of Finance, Sri Mulyani, inequality in the rights of women and men workers still occurs in Indonesia.
Inequality does not only occur at the level of participation, but also on the amount of wage received.
Women receive awage of 32% adrift compared to men.
The imbalance occurs because of the stereotypes received by women which the contribution made by women to their work is not as big as men.
In terms of social norms, women are considered only complementary.
Even Though in fact, a number of studies show that women have a very significant role in the world of work..38 At the normative level, the government's effort to present a mechanism of protection to workers from gaps that occur between workforces is through Government Regulation No.
5 of 1989 which regulates the imposition of sanctions on companies that violate the minimum wage provisions.
Sanctions stipulated in the regulation are deemed unable to provide adequate protection, because sanctions are relatively light ie only a fine of Rp.
100.000, and sanctions imprisonment for three months.
The provision of light sanctions makes the regulation less effective in its implementation.
Employers seem to ignore because of the light sanctions.
37 Suhartoyo, above n. 35, p.7 38 ‘Sri Mulyani: Upah Pekerja Wanita masih Di Bawah Pria sebesar 32%’.
https://economy.okezone.com/read/2019/03/13/32 0/2029492/sri-mulyani-upah-pekerja-wanitamasih-32-lebih-rendah-dari-pria, accessed 29 June 2020 https://economy.okezone.com/read/2019/03/13/320/2029492/sri-mulyani-upah-pekerja-wanita-masih-32-lebih-rendah-dari-pria https://economy.okezone.com/read/2019/03/13/320/2029492/sri-mulyani-upah-pekerja-wanita-masih-32-lebih-rendah-dari-pria https://economy.okezone.com/read/2019/03/13/320/2029492/sri-mulyani-upah-pekerja-wanita-masih-32-lebih-rendah-dari-pria Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 172 | Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker… The above Government Regulation is an effort to enforce the law on the provisions of the UMK as stipulated in Law No.
13 of 2003 concerning Employment, as an effort to guarantee legal certainty.
The provision of fines and criminal sanctions against employers who violate the provisions of the UMK is one form of real legal protection mechanism for workers in Indonesia, although there are problems themselves related to the low sanctions provided that enable employers who violate not get a deterrent effect from the sanctions.
The ILO as one of the International Labor Organizations which ratified some of them by Indonesia issued a Resolution Concerning he Promotion of Gender Equality, Pay Equity and Maternity Protection in 2004.
The resolution contains a call for all countries in the world to contribute to eliminating all forms of discrimination in the labor market and promoting gender equality especially in the field of work, one of which is through the making of national regulations which prioritize, one of which is, equal pay for women workers with work of equal value, as regulated in Article 1 which emphasizes: 1.
Calls upon all governments and social partners to actively contribute – in their respective fields of competence: (i) develop and implement national policies to provide equal opportunities and access for women and men to education, training, career development and employment, as well as equal pay for work of equal value39; Furthermore, ILO member countries are recommended to strengthen legislation relating to anti-discrimination guarantees for 39 Article 1 (i) ILO Resolution Concerning The Promotion of Gender Equality, Pay Equity and Maternity Protection 2004 women workers regulated in Article 2 which reads: "introduce or strengthen appropriate legislation, programmes and other measures aimed at eliminating gender discrimination in the workplace."
40 This means that the government should provide protection mechanisms not only to the extent outlined in legal products or laws, but also in the form of programs or special measures that aims to eliminate gender discrimination in the workplace.
This special program or step can be in the form of certain reporting methods for women workers who experience discrimination, supervisory institutions of gender discrimination in the workplace, sanctions for employers who discriminate wages for women workers, or other steps that can make effective protection of women workers from wage discrimination in his work environment as guaranteed in the Act.
In general, Indonesian Legislation related to labor has provided protection for women workers related to protection to receive non-discriminatory treatment, recognition of competence in the world of work, rights related to the reproductive system such as menstrual leave, maternity leave and protection related to working hours at night.
Specifically, regarding wages, the law stipulates that women and male workers must be given the same salary calculation without discrimination.
However, at the implementation level not all of the rules are easy to enforce.
The provision of antidiscriminatory guidelines is not followed by other protection mechanisms, either in the form of financial penalties, prison sanctions or programs or other reporting mechanisms that can be taken by women workers who feel they are experiencing wage discrimination, 40 Article 2 (b) ILO Resolution Concerning The Promotion of Gender Equality, Pay Equity and Maternity Protection 2004 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker…| 173 so employers easily ignore these rules which results in regulations that are not work effectivelly.
Although it has been guaranteed in various laws and regulations and international conventions, but until now not all the rights of women workers can be fulfilled, both caused by internal factors and external factors.
The internal factor is the low level of knowledge and understanding of women workers regarding their rights.
There are also external factors, namely: (1) the existence of a patriarchal culture; (2) marginalization at work; (3) the existence of stereotypes to women; and (4) 41 lack of socialization.
In addition, the essence of the prohibition of discrimination is also not followed by sanctions for employers who violate the anti-discrimination rules which also a factor is causing violations of the rights of women workers.
IV.
CONCLUSION AND SUGGESTION From the overall explanation and analysis presented above, this journal produces several conclusions.
1.
Indonesia has made efforts to protect women workers from wage discrimination on work of equal value through legislative action in the form of ratification of ILO Convention No.
100 of 1951 with Law No.
80 of 1957 concerning the approval of ILO Conventions No.
100 Regarding Wages for Men and Women for Work of Equal Value, especially those contained in Article 1 letter (b) and Article 2, the ratification of CEDAW through Law No.
7 of 1984 concerning Ratification of the Convention Concerning the Elimination of All Forms of Discrimination Against Women especially those contained in 41 Ibid Article 11 Letter (d), Law No.
13 of 2003 concerning Employment specifically regulated generally in Article 5, Article 6, and Article 88 Paragraph (3) Letter (i).
2.
Indonesia does not yet have regulations that contain special protection mechanisms for wage discrimination provided by Indonesia to women workers in the form of sanctions, reporting mechanisms or special supervision of discriminatory practices that do not yet exist either regulated in the Employment Act or the ratification Law of the ILO and CEDAW Conventions.
From all of the explanations and conclusions described above, this journal provides several suggestions.
1.
The Indonesian government can optimize the protection of wage discrimination against women workers by establishing special protection mechanisms either through fines (which are sufficient in number and can provide a deterrent effect) or criminal sanctions for employers who violate the anti-wage discrimination provisions against women workers 2.
The Indonesian government can create a special supervisory body or agency that is tasked with supervising and guaranteeing the protection of women workers, especially protection from discrimination in the world of work.
3.
A special reporting mechanism should be made for women workers who feel discriminated in their workplace, in particular discrimination against wages for work of equal value.
There must be guarantees and security for women Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 174 | Sukarmi, Ganindha, UmarLaw Protection Mechanism of Wage Equality for Women Worker… workers who do the reporting not to be dismissed from their workplaces.
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69 T H E A N A L Y S I S O F F O R E I G N V E S S E L S I N K I N G A S A N E F F O R T B Y T H E G O V E R N M E N T O F I N D O N E S I A T O C O M B A T I U U F I S H I N G P U R S U A N T T O I N T E R N A T I O N A L L A W Kristiyanto Under Graduate Student, International Program Faculty of Law, University of Brawijaya kristiyanto1994@gmail.com ABSTRACT As an archipelagic state, Indonesia possesses some of the most abundant fishery resources in the world.
Geographically, Indonesia’s strategic location makes it a challenge, and it is a shared responsibility for all citizens to preserve and conserve these resources.
The strategic location and rich biological as well as non-biological marine resources automatically attract foreign vessels to carry out IUU fishing activities, particularly in the area of ZEEI (Indonesian Exclusive Economic Zone).
The Government of Indonesia has taken various preventive measures to combat IUU fishing practices through bilateral cooperations and various laws.
In addition, the Government has also taken some repressive efforts by burning and sinking foreign vessels.
In this study, the researcher will analyze the governmental action pursuant to international law and examine the extent to which the sinking of the ship is effective from the perspective of international law.
This study will be conducted using normative and juridical approach by reviewing and analyzing various national and international legal instruments related to IUU fishing.
We hope that this study will be able to deliver theoretical and practical benefits for students and other researchers who are interested in the issue of IUU fishing practices.
Keywords : IUU fishing, marine resources, archipelagic state.
I.
INTRODUCTION Indonesia is the World’s largest archipelagic state, consisting of 13,667 islands.
The coastline of Indonesia reaches 95,181 km, with the total of sea area as wide as 5.8 million square-kilometers.
So, the vast collective territorial sea of Indonesia is responsible for 80% of the total area, therefore Indonesia is often referred as an archipelagic state 1 .
In the sea area, Indonesia has a wide variety of 1 The island-nation or Archipelagic State is a country that throughout its territory consists of one or more islands, including other islands close its relations with each other, including the waters of these and other natural form, has the sovereign waters are waters archipelago located in the side of the linestraight archipelagic baselines.
Mochtar Kusumaatmadja, Introduction to International Law, Alumni, Bandung, 2003, p. 179. mailto:kristiyanto1994@gmail.com 70 ecosystems such as 8,500 species of fish, 555 species of seaweeds and 950 species of coral reefs, which make Indonesia as the largest mega-biodiversity in the world 2 .
Such potential in the field of fishery is an economic capital 3 that can be utilized as much as possible for the future of the nation as the backbone of national development.
This is in accordance with the provisions of article 33, paragraph 3 of the Constitution of the Republic of Indonesia in 1945 which mandates that earth, water and all natural resources contained therein are managed by the state and utilized as much as possible for the people's welfare.
However, the abundance of biological wealth has not been able to make a significant contribution to the welfare of the people.
It is evident from the number of fishermen who still live below the poverty line.
This is due to the limited management and utilization of fish by fishermen, making the situation difficult to overcome poverty.
This condition is exacerbated by the 2 Anonymous.
INDONESIA HAS THE LARGEST MARINE BIODIVERSITY IN THE WORLD.
2009.
(Online:http://kkp.go.id/index.php/arsip/c/9822/KEA NEKARAGAMAN-HAYATI-LAUT-INDONESIATERBESAR-DI-DUNIA/?category_id).
Accessed on 15 Mei 2014, at 15.12 WIB.
3 Lecturer team, Citizenship Education, Field Studies Unit, University of Padjadjaran, Bandung, 2007, p. 135 increasingly widespread practice of illegal fishing by fishermen from other countries, or better known as poaching by foreign vessels.
These fish thieves may come from foreign countries, to be precise, those with the ability tp utilize the technology and fisheries management so well.
Thus in practice, the state greatly is harmed by those activities.
At least there are several reasons that underlie the practice of illegal fishing by foreign fishermen 4 : 1.
Fish is a fundamental commodity for all the people and the cost is going to be cheaper if it is acquired by the method of stealing; 2.
Opportunities and possibilities of fishery resources to be looted are quite large.
In the woods, it is relatively easier to monitor and detect the rampant of illegal logging practices; but the supervising process on the sea is difficult due to its size; 3.
No seriousness of the various parties to address illegal fishing practices.
Normally, the countries that suffer greater losses due to illegal fishing practices are 4 Dr. Ir.
Victor PH Nikijuluw, Socio-economic dimensions of Illegal Fishing (Blue Water Crime), Jakarta, Cidesindo 2008 http://kkp.go.id/index.php/arsip/c/9822/KEANEKARAGAMAN-HAYATI-LAUT-INDONESIA-TERBESAR-DI-DUNIA/?category_id http://kkp.go.id/index.php/arsip/c/9822/KEANEKARAGAMAN-HAYATI-LAUT-INDONESIA-TERBESAR-DI-DUNIA/?category_id http://kkp.go.id/index.php/arsip/c/9822/KEANEKARAGAMAN-HAYATI-LAUT-INDONESIA-TERBESAR-DI-DUNIA/?category_id 71 developing countries, because they have less ability and capacity to oversee and maintain the resources they have.
Due to illegal fishing practices, Indonesia is estimated to have suffered losses between $3 billion and $6 billion per year.
If calculated since 1970–the year when Indonesia proclaimed to open up opportunities for foreign investors to exploit fishery resources in Indonesia–the amount accumulated for over 30 years equals more than US $209 billion, or around 2,500 trillion rupiah 5 in present value (the data obtained in 2008).
Illegal fishing carried out by foreign vessels is one of the Blue Water Crime 6 known as the practice of IUU fishing (Illegal, Unreported, Unregulated fishing).
Due to the impact of IUU fishing, it causes not only losses of the economic sector, but also the loss of environmental, biological and social sectors.
As one of the ratifying states (state party) in the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, the government of Indonesia made an effort to combat the practice of IUU fishing by 5 Zaqiu Rahman, Sinking Ships In an effort Eradication of Illegal Fishing, rechtsvinding Online 6 .
Ibid, Page 5 issuing Law No.
45 of 2009 on the Amendment of Law No.
31 Year 2004 on fisheries, using UNCLOS 1982 as the basic material 7 .
Associated with the sinking of the ship, it is specifically regulated in article 69 paragraph (4), which states: In carrying out the functions referred to in paragraph (1) the investigator and/or fisheries supervisor can perform specific actions such as burning and/or sinking of foreign-flagged fishing vessels based on sufficient preliminary evidence 8 .
The effort of sinking the ship is a form of ultimum remedium that can be taken by the government if other efforts failed.
However, the provisions of article 69 paragraph (4) is not in accordance with the provisions of article 76A of Law No.
45 Year 2009 on the Amendment of Law No.
31 Year 2004 on fisheries which require a court decision before the action can be executed.
Discrepancy in this would greatly affect the implementation of the field that will ultimately have an impact on the effectiveness of the eradication of the practice of IUU fishing 9 .
Inconsistency and discrepancy between national law and 7 Ariatno, Indonesia Interest In Free Marine Fisheries Management, Indonesia Journal of International Law, 2005, 2 (3): 503-544 8 Provisions of article 69 paragraph (4) Law Number 45 Year 2009 9 Testimony Associate Lakshman (Ret.)
Freddy in ibid.
page viii 72 international law related to criminal sanctions for illegal fishing by foreign vessels, in particular the sanctions related to the sinking of foreign fishing vessels, will complicate the task of the government to eradicate the practice of IUU fishing.
II.
METHODE OF RESEARCH This research uses juridicalnormative method, including reviewing and analyzing the rules of national law and international law on the eradication of the practice of IUU fishing.
Specifications of this study is more descriptive-qualitative, which in this case takes the critical analysis of some general provisions in the national legal norms and international law related to the setting of IUU fishing in analyzing the object problems.
The analysis approach in this research is Statute Approach and Case Approach.
Based on the description of the background and the formulation of the problem above, the purpose of this study are to know the forms of law enforcement in the field of fisheries by the Government of the Republic of Indonesia concerning the practice of IUU Fishing and too determine the extent to which national law enforcement that have been based on various instruments of international law is effective in combating IUU fishing practices.
III.
RESULT AND DISCUSSION A.
National Action Plan For Preventing And Combating IUU Fishing Implemented by Indonesian Government Based On International Instruments As the further effort on the various international instruments in the field of IUU fishing, the Indonesian government has made various efforts to follow up the international legal instrument as a national Action Plan for Preventing and Combating IUU Fishing Implemented by Indonesian Government Based on International Instruments 10 1. International Instruments a.
States should give full effect to relevant norms of international law, in particular as reflected in the 1982 UN Convention, in order to prevent, deter and eliminate IUU fishing.
b.
States are encouraged, as a matter of priority, to ratify, accept or accede to, as appropriate, the 1982 UN Convention, the 1995 UN Fish Stocks Agreement and the 1993 10 Decree of the Minister of Marine and Fisheries of the Republic of Indonesia Number Kep.50 / MEN / 2012 on National Action Plan on IUU Fishing Measures Period 2012-2016 73 FAO Compliance Agreement.
Those States that have not ratified, accepted or acceded to these relevant international instruments should not act in a manner inconsistent with these instruments.
c. States should implement fully and effectively all relevant international fisheries instruments which they have ratified, accepted or acceded to.
d. Nothing in the IPOA affects, or should be interpreted as affecting, the rights and obligations of States under international law.
Nothing in the IPOA affects, or should be interpreted as affecting, the rights and obligations contained in the 1995 UN Fish Stocks Agreement and the 1993 FAO Compliance Agreement, for States parties to those instruments.
e. States should fully and effectively implement the Code of Conduct and its associated International Plans of Action.
f. States whose nationals fish on the high seas in fisheries not regulated by a relevant regional fisheries management organization should fully implement their obligations under Part VII of the 1982 UN Convention to take measures with respect to their nationals as may be necessary for the conservation of the living resources of the high seas.
Indonesia adheres to the norms of international law relating to the management of fishery resources in an orderly and responsible way, including the prevention and control of IUU fishing, among others, by the legalization of these following laws: 1) Law No.
5 of 1983 on the Indonesian Exclusive Economic Zone (ZEEI); 2) Law No.
17 of 1985 on Ratification of the United Nations Convention on the Law of the Sea; 3) Law No.
31 of 2004 on Fisheries, as amended by Law No.
45 of 2009; and 4) Law No.
21 of 2009 on Ratification towards Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks As a consequence to follow-up the approval or ratification of the Convention and/or international treaties, Indonesia has adjusted the legislation on fisheries, including adopting the provisions of CCRF into various provisions of national law, and actively participated in Regional 74 Fisheries Management Organizations (RFMOs).
Indonesia action Plans: 1.
Continue the process of ratification of the FAO Compliance Agreement in 1993; 2.
Continue the accession process to the WCPFC; 3.
Continue the process of ratification of the Port State Measures; 4.
Continue the integration process of RFMOs resolution into national legislation; 5.
Participate actively in RFMOs activities, including implementation of the resolution and capacity building; 6.
Renew authorized fishing vessel and record of fishing vessel; 7.
Complement legislations and guidelines for the implementation of international instruments.
2.
National Legislations a.
National Regulations Recommendation of IPOA-IUU Fishing 1.
National legislations should address in an effective manner all aspects of IUU fishing.
2.
National legislations should address, inter alia, evidentiary standards and admissibility including, as appropriate, the use of electronic evidence and new technologies.
Indonesia has revised Law No.
31 of 2004 on Fisheries, by Act No.
45 of 2009, in an effort to improve: 1.
Effectivity of management and conservation of fish resources; 2.
Implementation of sustainable fisheries development; and 3.
Accommodation of the strategic environment development, both regionally and globally.
In addition, Indonesia has developed a number of public policies, including:  Government Regulation No.
24 of 2006 on Appointment and Dismissal Procedures for Ad Hoc Court Judge Fisheries; 75  Presidential Decree No.
15 of 2010 regarding the establishment of the Court Fishing in Tanjung Pinang District Court and Ranai District Court;  Decree of the Minister of Marine Affairs and Fisheries No.
KEP.58 / MEN / 2001 on Procedures for the Implementation of Public Monitoring System in Management of Marine Resources and Fisheries;  Regulation of the Minister of Marine Affairs and Fisheries No.
PER.13 / MEN / 2005 on the Crime Management Coordination Forum Fisheries, as last amended by PER.18 / MEN / 2011;  Regulation of the Minister of Marine Affairs and Fisheries No.
PER.04 / MEN / 2006 on the Establishment of Technical Implementation Unit (UPT) Monitoring SDKP;  Regulation of the Minister of Marine Affairs and Fisheries No.
PER.19 / MEN / 2006 concerning the appointment of the harbor master at the Port of Fisheries;  Regulation of the Minister PER.27 / MEN / 2009 on Fishing vessels;  Regulation PER.18 / MEN / 2010 4.
Marine and Fisheries Number on Registration and Marking of Marine and Fisheries Number of Fishing Log Book; 5.
Regulation of the Minister PER.14 / MEN / 2011 as amended by PER.49 / MEN / 2011; 6.
Regulation of the Minister PER.08 / MEN / 2012 7.
Regulation of the Minister PER.12 / MEN / 2012 the high seas; 8.
Regulation of the Minister PER.13 / MEN / 2012 Fish; 9.
Decision of Directorate General of Marine and Fish 76 Resources Surveillance PSDKP / 2012 on Technical Guidelines for Operational Control of Fishing Vessels.
Indonesia’s action plans: Indonesia is currently preparing several laws, including : 1.
Finalization of Government Regulation on Fisheries Control draft; 2.
Preparation of draft materials on Government Regulation on the Award for Law Enforcement Officials and Parties Participating in Rescue Efforts of State Assets; 3.
Draft material of Regulation for Vessel Monitoring System to observe fishing vessels’ activities; 4.
Attempt to regulate the use of electronic evidence in criminal acts fisheries management in the legislation; 5.
Improvement for the Minister of Marine and Fisheries Regulation No.
PER.05 / MEN / 2007 on the Implementation of Fisheries Vessel Monitoring System which regulates the implementation of the Vessel Monitoring System (VMS).
b. Nation-wide Control Recommendation of IPOA-IUU Fishing States should, to the extent possible in their national law, avoid conferring economic support, including subsidies, to companies, vessels or persons that are involved in IUU fishing.
Associated with the provisions of the IPOA which requires each state to regulate fishing activities in order to prevent IUU fishing, Indonesia has set: 1.
Law No.
31 of 2004 on Fisheries, as amended by Law No.
45 of 2009; 2.
Law No.
17 Year 2008 on the voyage, which provides that: a) Vessels from Indonesia flag is required to fly Indonesian flag as a sign of vessel’s nationality b) Non-Indonesian vessels are forbidden to sail with Indonesian flag c) Ships sailing in the waters of Indonesia 77 with more than one flag as a sign of nationality, are considered not to have the identity of the ship.
3.
Regulation of the Minister of Marine Affairs and Fisheries No.
PER.
14 / MEN / 2011 on Business Fisheries, as amended by Regulation of the Minister of Marine Affairs and Fisheries No.
PER.
49 / MEN / 2011 In addition, Indonesia has made efforts to prevent the practice of IUU fishing by fishing vessels and fish transport vessels which perform activities in other countries or jurisdictions inside the conservation area of regional fisheriesmanaging organizations.
The operational measures undertaken include 11 : 1.
Cooperation between Indonesia and Australia in Indonesian-Australian Fisheries Surveillance Forum; 11 Adrianto, Implementation of Code of Conduct for Responsible Fisheries in the Perspective of Developing Countries, Indonesia Journal of International Law, 2005, 2 (3): 463-482.
2.
Patrol cooperation between Malaysia-Indonesia (cooperation between states); 3.
Socialization to those who are involved in fisheries business; 4.
Improvement of surveillance; and 5.
Consistent law enforcement.
Indonesia’s action plan: For the foreseeable future, the Government of Indonesia will take the following steps: a.
Adjust the various laws and policies in Indonesia which are related to the prevention and control of IUU fishing by fishing vessels and fish transport vessels; so as to comply with international regulations; b.
Improve surveillance of all fishing vessels and fish transport vessels in Indonesia.
c. Vessels without Nationality Recommendations of IPOA-IUU Fishing: 78 States should ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing.
Indonesia has to prevent the entry of vessels without nationality from taking advantage of ports in Indonesia or getting a fishing license in Indonesia.
Pursuant to Article 166 paragraph (1) of Law No.
17 Year 2008 on the Voyage, any ship sailing in Indonesian waters must indicate clearly the identity of the ship.
Indonesia’s action plan: a.
Anticipate the entry of vessels without nationality which perform fishing from the high seas to Indonesia, with operational optimization of surveillance vessels; b.
Improve the quality of fish resources supervision; c. Coordination with relevant agencies, among others, the water police and Navy (TNI).
d. Sanction Recommendations of IPOA-IUU Fishing States should ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.
This may include the adoption of a civil sanction regime based on an administrative penalty scheme.
States should ensure the consistent and transparent application of sanctions.
Indonesia has set strict sanctions against the perpetrators of IUU fishing in Indonesia, as stipulated in: 1.
Law No.
31 of 2004 on Fisheries, as amended by Law No.
45 of 2009; 2.
Law Number 17 Year 2008 on the voyage.
Indonesia has imposed sanctions against the perpetrators of IUU fishing in forms of imprisonment and fines, and the confiscation of evidence boats and fishing gear by the state.
Indonesia’s action plans: Indonesia will continue to improve consistency and transparency in 79 implementing the sanctions for the perpetrators of IUU Fishing.
B.
Possible Taken Actions By Indonesia’s Government to Prevent Illegal Fishing/Poaching by ForeignFlagged Vessels in The Exclusive Economic Zone There are several factors that cause many perpetrators of IUU Fishing, namely: 1.
The rise of illegal fisheries–an indication that illegal acts are more economicallyadvantageous than legal fishing.
2.
Higher legal costs–if the legal costs are higher than illegal revenues, then the illegal fishing activity is not likely to happen 3.
The net gain of illegal fishing is higher than the net profit of legal fisheries 4.
The level of fish consumption in Indonesia is increasing 5.
Fish resources in other countries are on the wane 6.
Lack of supervisory authorities in the Indonesian sea.
12 In other words, the perpetrators feel that illegal fishing results in much higher profits compared to legal fishing.
In addition, there are also adverse effects caused by IUU fishing activities in Indonesia, such as these following: 13 1.
The threat to the conservation of fish resources; 2.
The decline of livelihoods of local fishing communities with small-scale fishing fleet and simple fishing gear, because they cannot compete with those performing illegal fishing; 3.
The loss suffered by majority of fish production industries and loss of opportunities to improve national economy; 4.
Reduction of Non-Tax Revenues; 5.
Inhibition of Indonesia's efforts to strengthen the fish processing industry in the 12 Theft of fish by foreign ships in waters Based on the Exclusive Economic Zone Law No.
31 Year 2004 on Fisheries Accessed on http://elib.unikom.ac.id/files/disk1/646/jbptunikompp -gdl-andihidaya-32274-9-unikom_a-v.pdf pada tanggal 23/09/2015 at19.18 13 Contained in the Ministerial Decree No.
KEP / 50 / MEN / 2012 Chapter III point D http://elib.unikom.ac.id/files/disk1/646/jbptunikompp-gdl-andihidaya-32274-9-unikom_a-v.pdf%20pada%20tanggal%2023/09/2015 http://elib.unikom.ac.id/files/disk1/646/jbptunikompp-gdl-andihidaya-32274-9-unikom_a-v.pdf%20pada%20tanggal%2023/09/2015 http://elib.unikom.ac.id/files/disk1/646/jbptunikompp-gdl-andihidaya-32274-9-unikom_a-v.pdf%20pada%20tanggal%2023/09/2015 80 country, including the effort to improve competitiveness; 6.
Damage to the image of Indonesia in the international arena done by foreign vessels that use the Indonesian flag or vessels owned by Indonesian citizens and conducting illegal fishing, contrary to international conventions and agreements.
It can also trigger the threat of embargo on the Indonesian fishery products marketed abroad.
Given these factors and the bad impacts of illegal fishing in the coastal State, in accordance with the points exposed previously, Indonesia has developed an enforcement mechanism in form of the sinking of foreign-flagged illegal fishing vessels.
However, this mechanism can lead to hostility between Indonesia and other countries.
To avoid this, Indonesia should make the sinking of illegal foreign fishing vessels as the last alternative of the sanctions for illegal fishing.
Thus, to prevent and crack down on illegal fishing activities that cause harm to both countries, the author will mention and explain some of the efforts that can be made by the Indonesian government to prevent the aforementioned violations.
By implementing these, hopefully the occurrence of illegal fishing in Indonesia by fishing vessels foreign-flagged fishing can be reduced.
1.
The role of marine and fisheries diplomacy Advanced Oxford Dictionary 2003 describes diplomacy as "the management of international relations through negotiation, which is harmonized and regulated by the ambassadors and representatives; business or art diplomats from the country".
If you see a great sense of diplomacy by Indonesian dictionary, then diplomacy involves four (4) following case: 14 a.
Affairs or the organization of official nexus between countries; b.
The interests of a country's affairs through their representatives in other countries; 14 Bayu Vita, sonny and Freshty.2014, the diplomatic role of marine and fisheries as part of efforts to tackle illegal fishing in Indonesia, (online) accessible from http://bbpse.litbang.kkp.go.id/publikasi/jbijak/jurbija k_2013_v3_no1_%284% 29_full.pdf on 09/26/2015 at 14:39 81 c. Knowledge and skills in terms of the nexus between countries; and d. Proficiency in using wellchosen words for the benefit of the authority (in negotiations, answering questions, expressing opinions, etc.).
Etty R. Agoes, stated her opinion associated with the handling or reduction of IUU fishing 15 , which is a form of international interstate (transnational) crime: one of the steps that needs to be done by the Ministry of Maritime Affairs and fisheries (MMAF) is diplomacy related to the plan of action related to the issues and problems of illegal fishing.
Diplomacy needs to be done to provide data and information relating to other forms of violations of illegal fishing which has been carried out by foreign nations to countries of their origin, with the aim of realization of compliance to the regulations imposed in Indonesia in the fight against illegal fishing done by perpetrators from other countries.
The bilateral and multilateral 15 Etty R Agoes, an expert in international maritime law Faculty of Law, University of Padjadjaran Bandung, during the "Focus Group Discussion Study of Legal Aspects in the Context of Combating IUU Fishing in Indonesia in Jakarta, December 10, 2012", establishments need to reach an understanding in handling illegal fishing.
For example, in violations committed by Indonesian fishermen in the country, the government can use the data of previous violation as a supporting tool to defend Indonesian fishermen; or the Indonesian government can give the excuse that Indonesian fishermen do the violation because the fish resources in Indonesia have also been stolen by fishermen from other countries.
16 2.
By adding and enhancing the law enforcement agencies Law enforcement agencies are those that are directly or indirectly involved in the legal field.
They are the ones in charge in the field of the judiciary, prosecutorial, police, and correctional institutions.
Soerjono Soekanto stated that law enforcement has an ideal role as well as an actual role (a role that is actually done).
This determines the role of a law enforcement unit in doing its job.
Therefore, the author argues that the law enforcement fleets have an indispensable role in maintaining the 16 Bayu vita, Sonny and Freshty, Op Cit.
82 security of the jurisdiction of the Indonesian territorial waters.
3.
Improving the Supporting Facility of the Law Enforcement Agencies Facilities and amenities include educated manpower, adequate equipment, adequate financing which enables and supports the ongoing process of law enforcement, as if this is not met, then it is impossible to reach the goal of law enforcement 17 .
IV.
CONCLUSION The Indonesian government has launched a national action plan for prevention of IUU fishing as mandated by international legal instruments.
The legal actions that can be done by Indonesia to prevent illegal fishing carried out by foreign-flagged fishing vessels are: conducting diplomacy in marine and fishery fields, adding law enforcement fleets, improving infrastructure and facilities to support law enforcement, making vesselsinking sanction as the last resort (ultimum remedium).
The anticipation of IUU fishing in the form of national action plans that have 17 Bayu vita, Sonny and Freshty, Ibid been announced by the government of the Republic of Indonesia must be sustainable, the problem of IUU fishing is not a seasonal problem but one that requires ongoing treatment.
If Indonesia wants to impose sanctions in form of sinking of the illegal foreign fishing vessel, it should be done only if other methods have been attempted, such as diplomacy, improvement of the facilities and amenities.
It would be more agreeable if the sanction to foreign-flagged fishing vessels is done only as a last resort (ultimum remedium).
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FAO Code of Conduct for Responsible Fisheries.
Rome Declarations on IUU fishing.
DOI: http://dx.doi.org/10.21776/ub.blj.2019.006.01.01 | 1 Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement: Challenges and Prospects Ekundayo Oluwaremilekun Babatundea aDepartment of Private and Commercial Law, Faculty of Law, Bowen University, Iwo, Nigeria Email : oluekundayo@yahoo.com Submitted : 2019-01-03 | Accepted : 2019-03-25 Abstract: The maritime industry is globally recognized as one of the most economically viable industry capable of facilitating sustainable development thus, amicable settlement of maritime disputes is paramount to guarantee unhindered trade and commerce environment.
Arbitration is an age-long Alternative Dispute Resolution (ADR) mechanism applied in the amicable settlement of disputes in a relaxed and semi-formal environment.
It is particularly suitable for resolving commercial disputes because of the enforceability of arbitral awards as depicted by the existing international arbitral jurisprudence.
Various law of the Sea tribunals such as the International Tribunal for the Law of the Sea (ITLOS) or an ad hoc panels expressly recognizes arbitration as one of the models for settlement of disputes as a suitable alternative to litigation.
In Africa, as nations recover from the era of ocean blindness, maritime practice and administration is prioritized to aid economic growth.
The objective of this study is to evaluate application of arbitration as an ADR mechanism for settling maritime disputes in Nigeria’s maritime practices with the aim of identifying the challenges confronting Nigerian’s involvement in maritime business, particularly as it relates to application of Arbitration to dispute settlement.
It was found that there are certain loopholes in relevant laws which work hardship against local businesses in cases of maritime disputes settlement.
The study suggests viable solutions based on lessons from other climes to create level playing field for parties who opt for arbitration to settle maritime related disputes.
Keywords: arbitration; maritime industry; dispute settlement; nigeria; challenges and prospects.
I.
INTRODUCTION Oceans are an important part of life as water covers two-thirds of the earth surface, serving as an important means of transporting goods and services as well sustaining life.
1 Emmett Duffy et al, ‘Biodiversity Effects in the Wild and are Common and as Strong as Key More than half of the oxygen needed by living organisms is produced by marine biodiversity, which also helps to moderate the weather and climatic condition on earth.1 In the twenty first century, the global maritime Drivers of Productivity’ (2017) 14(549) Nature International Journal of Science 261-264.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 2 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... industry has attained increased importance in the wake of globalization, scientific and technological advancement.
Maritime spaces holds immense viability capable of sustaining the global economy as such it is described as the “blue gold” or “blue economy”.
Globally, the maritime industry supports environmental sustainability, social stability and economic development.
Maritime shipping accounts for 90% of international commodity trade traffic, in addition to deposits of living and non-living resources found in various maritime spaces.2 The contemporary importance of maritime domain is born out of the historical perception of sea dominance as a symbol of political power.
The consciousness of economic importance of maritime shipping came to lime-light in the post-world-War II era during which various sea-routes were discovers as leading to expanded markets to promote capitalism.
3 The founders of maritime practice were merchants who navigated the sea to boost mercantile trade and in the process discovered other territories.
Thus operation of the World Maritime Industry is in the hands of private individuals and groups, while nation-states played the role of boundary delimitation and enforcement of developmental laws.4 The emergence of maritime practice called attention to the strategic importance of the African maritime domain to the international maritime industry.
Being the second largest and second most populous continent, Africa offers a large market for 2 Abdullahel Bari, ‘Our Oceans and the Blue Economy: Opportunities and Challenges’ (2017) 194 Procedia Engineering 5 – 11.
3 Sophus Reinert and Robert Fredona, ‘Merchants and the Origins of Capitalism’ (Working Paper 18021, Havard Business School 2017) 2-10.
4 Ekpo Imoh, ‘Impact of Shipping on Nigerian Economy: Implications for Sustainable Development’ (2012) 2(7) Journal of Educational and Social Research 107-109. commodities and services.
In addition, the continent has a long stretch of coastline exceeding 39,000 km.
Africa is a huge island surrounded by the Mediterranean sea, the Suez canal and the red-sea along Sinai Peninsula, the Indian ocean and the Atlantic ocean in the North, north-east, south-east and west respectively.
The strategic location of Africa explains its importance to the global economy for facilitating shipping, maritime trade, energy, communication and tourism, historical and cultural purpose.
Out of the 53 states in Africa, 38 are either coastal or island states.
In the wake of the 21st century globalization, African waters have assumed increasing importance as suitable alternative route to the Arab Gulf passage hence, the heavy merchant vessel traffic in the African Maritime domain (AMD).
The African maritime industry is valued at 1 trillion dollars annually, in addition to the offshore deposit of about 50 billion barrels of crude oil and liquefied natural gas which makes the African maritime space important to the global energy supply.5 This does not include other mineral resources such as diamond and biotechnology explored in the African waters and capable of being explored through deepsea mining.
Today, Africa accounts for about 2% of global trade, with a projection that the population of Africans will have doubled by 2050 to 2.5 billion, increased reliance will be placed on marine resources to cater for the needs of the growing population.
6 It is worthy of mention that by its very nature, 5 Institute for Security Studies, Pretoria, ‘Africa should wake up to the importance of an integrated maritime strategy’ (8 October 2012) <https://issafrica.org/iss-today/africa-shouldwake-up-to-the-importance-of-an-integratedmaritime-strategy> accessed 20 November 2017.
6 United Nations Economic Commission for Africa, Policy Dialogue, Abidjan, Côte d' Ivoire Governance of resources and maritime activities for sustainable development in Africa (21-23 June https://issafrica.org/iss-today/africa-should-wake-up-to-the-importance-of-an-integrated-maritime-strategy https://issafrica.org/iss-today/africa-should-wake-up-to-the-importance-of-an-integrated-maritime-strategy https://issafrica.org/iss-today/africa-should-wake-up-to-the-importance-of-an-integrated-maritime-strategy Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 3 maritime space are wide-spread making express boundary demarcation such as is obtainable on land difficult and necessitating inter-state cooperation in its management.
As a result, various regional economic communities exist for the purpose of aiding the joint management of maritime spaces.
Examples of such regional bodies in Africa include the Economic Community of West African States (ECOWAS), the Economic Community of Central African States (ECCAS), the Maritime Organization of West and Central Africa (MOWCA) and the Gulf of Guinea Commission (GGC).7 The Nigerian maritime space is particularly important to the nation, the West African region and the African continent.
Nigeria is blessed with a vast coast line having a stretch of about 850 square kilometers and navigable inland waters which flows into the West African Atlantic coast.
Nigeria is one of the largest producers of crude-oil and liquefied natural gas and the nation also account for about 76% of shipping business in West Africa.
8 The Nigerian maritime industry though not fully harnessed as such it takes after the oil and gas sector, already accounts for 120 million tons of maritime shipping.9 The nation’s maritime 2017) <https://www.uneca.org/sites/default/files/upload eddocuments/CDD/PolicyDialogue2017/concept_no te_-_english_version_05_may_2017.pdf> accessed 10 July 2018.
7 Chatham House Conference report, London, Maritime Security in the Gulf of Guinea (6 December 2012) <https://www.chathamhouse.org/sites/files/chatha mhouse/public/Research/Africa/0312confreport_ maritimesecurity.pdf> accessed 20 November 2017.
8 Kenneth Jukpor, ‘Local Content Vs Tugboats: Which Guarantees Nigeria’s Maritime Hub Status?’ on MMS Plus (6 May, 2017) <http://mmsplusng.com/blog/local-content-vstugboats-which-guarantees-nigerias-maritimehubstatus/>.
space experiences heavy traffic, while Nigerian ports are also often busy as such port activities constitute an important income source for the nation.
Besides, international shipping and trade often involve several parties, huge sums of money and complex terms of contract, as such the possibility of disputes occurrence is often high.
Thus, frequency of occurrence of commercial transactions in the Nigerian maritime space implies frequency of maritime disputes 10 which calls for timely and viable intervention.
Although in some instances, parties may successfully resolve such disputes without much ado, in several other situations, a neutral third party involvement of is inevitable.
In such occasion, where recourse is not made to court, a virile dispute settlement mechanism becomes a necessity.
By its very nature, commercial transactions are prone to misunderstanding among parties.
Also, because Nigerian ports are busy with incoming and outgoing cargos, and other transactions involving the active participation of parties with the intention to protect their respective business interest, occurrence of dispute is inexorable.
Furthermore, maritime contracts may be relatively complex, whether in form of 9 Ikenga Oraegbunam and Chienye Okafor, ‘Problems of Litigation in Settlement of Maritime Disputes for Nigeria Today: The Preference for Arbitration’ (2013) 4 Nnamdi Azikiwe University Journal of International Law and Jurisprudence 31-35.
10 Adedoyin Rhodes-vivour ‘Arbitration in the Resolution of Maritime Disputes’ (Paper Presented at the 11th Maritime Seminar for Judges on the 1st-3rd June, 2010) 3 http://www.drvlawplace.com/media/arbitrationmaritime-disputes.pdf accessed 20 December 2017. https://www.uneca.org/sites/default/files/uploaded-documents/CDD/PolicyDialogue2017/concept_note_-_english_version_05_may_2017.pdf https://www.uneca.org/sites/default/files/uploaded-documents/CDD/PolicyDialogue2017/concept_note_-_english_version_05_may_2017.pdf https://www.uneca.org/sites/default/files/uploaded-documents/CDD/PolicyDialogue2017/concept_note_-_english_version_05_may_2017.pdf https://www.uneca.org/sites/default/files/uploaded-documents/CDD/PolicyDialogue2017/concept_note_-_english_version_05_may_2017.pdf https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Africa/0312confreport_maritimesecurity.pdf https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Africa/0312confreport_maritimesecurity.pdf https://www.chathamhouse.org/sites/files/chathamhouse/public/Research/Africa/0312confreport_maritimesecurity.pdf http://mmsplusng.com/blog/local-content-vs-tugboats-which-guarantees-nigerias-maritime-hub-%20%20status/ http://mmsplusng.com/blog/local-content-vs-tugboats-which-guarantees-nigerias-maritime-hub-%20%20status/ http://mmsplusng.com/blog/local-content-vs-tugboats-which-guarantees-nigerias-maritime-hub-%20%20status/ http://www.drvlawplace.com/media/arbitration-maritime-disputes.pdf http://www.drvlawplace.com/media/arbitration-maritime-disputes.pdf Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 4 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... towage agreement, charter party or other similar transactions from which disputes may arise.
Consequently, in order for Nigeria to make the most of her maritime facilities and international trade potentials, a virile, effective and efficient maritime dispute settlement system must be in place.
Where maritime disputes occur, the first point of call usually involves making recourse to court, subject to the existence of dispute settlement clauses in the agreement binding the parties.
This is in line with Article XV of UNCLOS which permits parties to a maritime dispute to make recourse to a dispute settlement mechanism of their choice in the failure of which compulsory dispute settlement procedure is then triggered.
Although the higher level of awareness of the merits of ADR over litigation has increased preference of parties for ADR in cases involving maritime disputes, with preference for arbitration because of its enforceability, applicable rules needs be reviewed to provide equal protection for parties, especially in this present time in a developing economy as Nigeria.
This research aims to identify the challenges confronting Nigerian’s involvement in maritime business, particularly as it relates to application of Arbitration to dispute settlement.
II.
LEGAL MATERIALS AND METHODS In examining the application of Arbitration to dispute settlement to identify the challenges and prospects in Negeria, this research use juridical normative method, 11 Wikipedia, Black’s Law Dictionary, 7th Edition, 981 <http://en.wikipedia.org/wiki/Maritime> accessed November 10, 2017.
12 Jean Chiazor Anishere, ‘Introduction to Maritime Law ad Admirality Jurisdiction in Nigeria’ (Paper Presented at the 14th International Maritime Seminar for Judges 31 May-1st June 2016) which examine the consistency between international legal framewrok and Nigeria’s law and how those legal framework applied in maritime industry in Nigeria.
Legal materials to be analyzed include the Coastal and Inland Shipping (CABOTAGE) Act 2003 and the Nigerian Oil and Gas Industry Development Act 2010.
Also, the Arbitration and Conciliation Act 1988, Admiralty jurisdiction Act of 1991 and the Regional Centre for International Commercial Arbitration Act 1995.
In addition to these, other journal articles relevant to the topic are also used.
III.
RESULTS AND DISCUSSIONS Conceptual Clarification a.
Maritime Law The word maritime is a term which relates to activities concerning sea navigation and commerce.
11 Maritime law has been described as a law which provides legal framework for maritime transport.12 This is a restrictive definition as it limits maritime activities to shipping and transportation without taking cognizance of other recent aspects such as deep-sea mining and biodiversity.
Maritime law has also been described as a body of laws relating to carrying passengers and goods by water.
13 This definition is also restrictive as it limits maritime activities to the domain of private and business law without considering the public international law aspect that may concern maritime related inter-state activities.
This definition distinguishes maritime law <http://shipperscouncil.gov.ng/assets/uploads/MS J/Commentary_Introduction_to_Maritime_Law.p df> accessed 20 December 2017.
13 Thomas J et al, Admiralty and Maritime Law: Cases and Materials (1st edition, Charlottesville Va 1984) 1. http://en.wikipedia.org/wiki/Maritime http://shipperscouncil.gov.ng/assets/uploads/MSJ/Commentary_Introduction_to_Maritime_Law.pdf http://shipperscouncil.gov.ng/assets/uploads/MSJ/Commentary_Introduction_to_Maritime_Law.pdf http://shipperscouncil.gov.ng/assets/uploads/MSJ/Commentary_Introduction_to_Maritime_Law.pdf Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 5 from the law of the sea.14Meanwhile, for the purpose of this article, maritime law broadly covers body of laws, rules, legal concepts, processes and regulations concerning the utilization of maritime resources, maritime trade, investment and shipping.
Admiralty law is sometimes used interchangeably with maritime law, it is thus necessary to set-out the distinction between the two.
The term ‘admiralty’, historically traceable to Arabic origin relates to issues over which admiralty court possess jurisdiction as opposed to common law courts.
In common law jurisdictions, admiralty law is concerned with water related maritime transactions, activities carried-out in relation to a vessel at sea as opposed to transactions that can be concluded on-shore.
There is the traditional practice of distinguishing between private and public aspects of maritime practice.
For instance the shipping of goods and maritime transport generally is perceived as fitting more into the private aspect of maritime law.
Today, there are aspects of maritime law which does not clearly fall under private or public international law.
Similarly, maritime law as used today deals with legal relations arising from the use of ships and could fall into aspects of admiralty law, just as aspects of modern commercial law can incorporate aspects of international law.
15 In Nigeria, maritime law is governed by the 2007 Merchant Shipping Act (MSA), while the 14 Thomas J et al, Admiralty and Maritime Law: Cases and Materials (2nd Edition, West Publishing Co 1994) 1.
15 Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law (Illustrated, Toronto: Lexington Books 1985) 5.
16 Amazu A. Asouzu, International Commercial Arbitration Arbitration and African States: Practice, Participation and Institutional Development (Illustrated, Cambridge University Press 2001) 5.
17 Ibid 13.
Admiralty Jurisdiction Act (AJA) regulates admiralty law.
b.
Arbitration Arbitration is a form of Alternative Dispute Resolution (ADR) mechanism used in resolving dispute without reference to a formal court procedure.
It has been described as the reference of a dispute between two or more parties for determination by a person besides a court of competent jurisdiction, in a semi-judicial manner, after hearing both sides.
16 The concept of ADR is a phenomenon that has been utilized by mankind as early as the time of the ancient civilization of Egypt, Mesopotamia and Assyria.17 ADR refers to methods “generally and procedures used to resolve disputes either as alternatives to the traditional disputes resolution mechanism of the court or in some cases as supplementary to such mechanism”.
18 The Black's Law Dictionary gave a concise definition of ADR as “a procedure for settling a dispute by means other than litigation such as arbitration or conciliation”.
19 In a similar vein, the Australian National Alternative Dispute Resolution Advisory Committee-(NADRAC) broadly defines it as “processes, other than judicial determination, in which an impartial person (an ADR practitioner) assists those in a dispute to resolve the issues between them.”20 18 BELLO Adesina, ‘Customary and Modern Arbitration in Nigeria: A Recycle of Old Frontiers’ (2014) 2 Journal of Research and Development 50-58.
19 Bryan A. Garner, Black's Law Dictionary (Ninth Edition Thomson West 2009) 9.
20 Melissa Lewis and Les McCrimmon ‘The Role of ADR in Criminal Justice System: A View from Australia’ (2005), (ALRAESA Conference, Uganda 4-8 September 2005) 2 <http://www.justice.gov.za/alraesa/conferences/2 005uganda/ent_s3_mccrimmon.pdf> accessed 20 November 2017 http://www.justice.gov.za/alraesa/conferences/2005uganda/ent_s3_mccrimmon.pdf http://www.justice.gov.za/alraesa/conferences/2005uganda/ent_s3_mccrimmon.pdf Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 6 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement...
Arbitration is a dispute resolution procedure which involves reference of disputes between parties to an impartial neutral third party, known as ‘arbitrator’ who acts in a semi-judicial capacity by delivering judgment which is final and binding on the subject matter.
21 An arbitral award has a similar effect as the judgment of a court.
22 However, Arbitration is not considered as ADR per se because of its unique characteristics.
As opposed to other ADR mechanisms, arbitral awards are final and binding and the decision or advice of the neutral third party in the case of applying other mechanisms does not have the effect of a court judgment.23 ADR could take the form of several procedures tailored to meet the circumstances of the case of the parties.
Application of ADR mechanisms is aimed at creating avenue for a flexible dispute settlement procedure through which parties can amicably resolve their disputes, at a low cost, within a relatively short duration while preserving the existing relationship.
These may take the form of negotiation, mediation, conciliation and expert determination which include adjudication and dispute review boards.
ADR methods also include modern methods like mini trials, rent-a-judge and hybrids like med-arb.
Thus, for the purpose of this article, maritime arbitration therefore refers to the reference of maritime dispute to ADR for amicable settlement as opposed to the litigious court processes and procedures.
21 The Encyclopedia of Forms and Precedents: Arbitration and Alternative Dispute Resolution, Auctioneers, Estate Agent and Valuers , Bailment (2nd edition, Butterworths LexisNexis 1995) Vol 3(1), para 2(11).
22 Ras Pal Gazi Construction Company Ltd vs. FCDA (2001) 10 NWLR Part 722, 559.
23 Jean Timsit, ‘Mediation: An Alternative to Judgment, not an Alternative Judgment’ (2003) 69(30) JCIArb 159.
Maritime Claims in Nigeria: Nature and Causes International trade or international shipping is usually characterized by a contractual agreement such as charter party or service contract which involves parties to a definite and specific contract covering a particularly spelt out duration.
Disputes may also ensue between parties who are not bound by an agreement.
For instance, ship collision or contact damage arising at the ship berth or involving a third party may result in disputes.
By its nature, maritime dispute may be a simple disagreement or a complex, multiparty, multi-jurisdictional disagreement worth millions of dollars.
24 In Nigeria maritime claims may take any of the following forms; it may be a matter relating to propriety interest in a ship, any matter relating to a ship prior to 1991, ship related case which is subject to limitation of liability or matters arising from liability for offshore oil pollution.
Matters may also arise from inland waters declared as national waterway; involve claims for loss or damage of goods in a federal port.
Other potential causes of maritime disputes from which claims may arise include issues of constitution and powers of a government agency like the Nigerian Ports Authority or National Maritime Authority particularly concerning documentation of cargo, imported or exported.
Maritime claims may also include criminal causes and monetary or nonmonetary carriage of goods agreement.25 24 Nick Coleman, ‘Conflict and Compromise – Maritime Dispute Resolution’ on GARD (27 July, 2017) <http://www.gard.no/web/updates/content/23769 855/conflict-and-compromise-maritime-disputeresolution> accessed 20 November 2017.
25 Adedoyin Rhodes-vivour, ‘Maritime Arbitration in Lagos’ (International Bar Association Conference, Hamburg Germany, 26th-28th April 2007) http://www.gard.no/web/updates/content/23769855/conflict-and-compromise-maritime-dispute-resolution http://www.gard.no/web/updates/content/23769855/conflict-and-compromise-maritime-dispute-resolution http://www.gard.no/web/updates/content/23769855/conflict-and-compromise-maritime-dispute-resolution Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 7 By the provision of the Admiralty Jurisdiction Act of 199126, a maritime claim may be ‘proprietary’ or ‘general’ in nature.
Proprietary are claims that affect the res or subject matter directly.
While general claims only affect the subject matter indirectly and may only arise out of dealings with the res.
Proprietary claims may include claims relating to possession of a ship, title or ownership of a vessel or any part thereof, mortgage of a ship or any part thereof or mortgage of ship freight.
On the other hand potential general claims are numerous and may include claims arising from collision, ship wreck, loss of life or personal injury, cargo loss, carriage of goods or vessel-hire agreements.
General claims may also emanate from salvage, pilotage, towage of ship or water-borne aircraft, claims relating to ship construction, claims resulting from port charges, charter or agent agreement, insurance claims, claims for payment of crewmen, claims for enforcement of arbitral awards, proprietary maritime claims or claims for interest in proprietary maritime claims.
27 In addition to the general and proprietary claims, maritime claims may also assume the form of a lien.
This is because a ship upon registration acquires legal personality similar to that of a registered company.
Thus, a ship is perceived as a real property with separate legal personality from its owners and not a personal property.
As a result, maritime claim over a ship transcends its ownership.
Such claims are known as Liens.
A Lien related claim may either be Maritime lien or statutory lien.28 A maritime lien may include salvage relating to life, <http://www.drvlawplace.com/media/MaritimeAr bitration.pdf> accessed 30 November 2017.
26 Admiralty Jurisdiction Decree No 59, 1991, S.2(2).
27 Ibid S 2(3).
28 Ibid S. 59. cargo or wreck based found on land, claims for wages related damages by master or crew members 29 and claims by the master for disbursement of a ship’s account.30 Statutory lien on the other hand includes claims arising from the supply of necessaries, claims for repair of ships and mortgage claims.
Settlement of Maritime Disputes in Nigeria Where disputes arise from maritime related activities and parties are unable to reach an agreement, naturally the first point of call is to make recourse to the court for legal intervention.
In Nigeria, settlement of maritime disputes can be undertaken using various approaches known to Nigerian laws.
These approaches are hereunder examined.
a.
Settlement of Maritime Disputes via Litigation Where court action is to be instituted in relation to maritime or admiralty claims, the 1999 constitution of Nigeria, vest the Federal High Court with exclusive jurisdiction to entertain such matters.
Section 251(1) (g) provides “[1] Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters [g] any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and 29 Fernando & Ors V Owners of MV "Rhodesia Trader" (1980 – 1986) 2 N.S.C.
339.
30 Maxwell Ebube v. Gold Star Line Limited 4 N.S.C.
226].
http://www.drvlawplace.com/media/MaritimeArbitration.pdf http://www.drvlawplace.com/media/MaritimeArbitration.pdf Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 8 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... their affluent and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal Ports, [including the constitution and powers of the Ports Authorities for Federal Ports] and carriage by sea;” In a similar vein, Section 19 of the Admiralty Jurisdiction Act provides that without regard to the provision of any contrary law, the Federal High court shall have exclusive jurisdiction to entertain both civil and criminal admiralty cases.
In order to fully exercise its jurisdiction over maritime cases, the Federal High Court is also empowered to apply the English principles of common law and doctrines of equity applicable for the settlement of maritime disputes.
31 Furthermore, the combined provisions of Sections 254 of the 1999 Constitution and section 21 of the Admiralty Jurisdiction Act, 1991 empower the Chief Judge of the Federal High Court to make rules of procedure on admiralty matters.
In lieu of this provision, the 2011 Admiralty Jurisdiction Procedure Rules was made to repeal the old rules of 1993.
The Chief Judge of the Federal High Court made the Admiralty Jurisdiction Procedure Rules 2011, which came into force on 14 March 2011 (“the new Rules”), thereby repealing the old Rules which had been in force since 1993.
A progressive provision of the act is the power it vests on the court to encourage parties to a dispute to make recourse to amicable settlement through any of the recognized mechanisms including arbitration, negotiation and reconciliation.32 31 Federal High Court Act 2005, S 10 and 11.
32 Admiralty Jurisdiction Procedure Rules 2011, S17.
b.
Limitations and Challenges of Settling Maritime Disputes via Litigation in Nigeria Litigation is the process of resolving a dispute through adjudication in courts.
Litigation is adversarial in nature; it involves filing a suit or process in courts and subsequent appearance of parties as well as presentation of evidence in support of their cases.
In most parts of the world, ADR is gradually taking precedence over litigation in various parts of the world, because of its numerous benefits which include but not limited to conservation of time, money and energy.
In Nigeria, maritime claims are exclusively heard by the Federal High Court, the Admiralty Jurisdiction Procedural Rules and the Federal High Court Civil Procedure rules set out the procedural requirements for filing a suit to recover claims in maritime or admiralty matters.33 However, enforcement of maritime claims via litigation in Nigeria is confronted with several limitations which make litigation undesirable.
One of the most pronounced challenges is the extent of admiralty jurisdiction of the Federal High Court as set-out in Section 251 of the 1999 constitution.
There have been several cases when it is unclear to litigants whether a particular matter falls within the admiralty jurisdiction of the Federal High Court.
The cause of action is the right which the litigant has to institute an action, in the absence of which the court will not have the requisite jurisdiction to proceed with the suit.
In the case of NV.SCHEEP v. MV "S.ARAZ" 34 where the plaintiff in the capacity as agents for Messrs.’ N.V. ScheepVaatmijUnidor Willie Mstad of Curacoa instituted an action 33 Ibid, S19 and Federal High Court Civil Procedure Rules (n-20) S.20.
34 NV.
SCHEEP v MV.
"S.ARAZ [2001] 15 NWLR [PART 691] 622.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 9 to recover demurrage over the use of the vessel by the second defendant, a matter that was on-going before an arbitral panel in London at the time of filing the suit.
An interlocutory application by the defendant challenging the jurisdiction of the court was dismissed by the Federal High Court but upheld on appeal to the Court of Appeal and the Supreme Court on grounds that the Plaintiff’s claims were not inherently maritime claims.
On the other hand, in the case of G & C LINES v. HENGRACE [NIG] LTD35 where the plaintiff filed a suit before the Lagos state high court for waiver of demurrage payable to the 1st and 2nd Defendants, the defendant’s application requesting that the matter be struck-out for lack of jurisdiction was struckout by the high court.
The appeal by the Defendant against the High Court’s interlocutory decision was decided in favour of the Defendant.
To the effect that such claims were maritime claims within the jurisdiction of the Federal High Court.
This is quite confusing, whereas in the former case the Appeal court and Supreme Court held that demurrage claims were not within the Federal High Court’s jurisdiction as they were not substantive maritime claims, in the latter case with the same claims were said to be within the jurisdiction of the federal high court.
Another major problem faced in the course of litigating a maritime claim is procedural bureaucracy.
Nigerian court system has a back-log of cases yet to be cleared as such any suit filled, except in cases of urgency which calls for accelerated hearing, will join the long queue and will take a relatively long duration before its final 35 G & C LINES v HENGRACE [NIG.]
LTD[2001] 7 NWLR [Part 711] 51.
36 Lanre Adedeji ‘Dispute Resolution and the Practice of Arbitration’ on The Lawyers Chronicle <www.thelawyerschronicle.com/disputeconclusion.
Delay tactics adopted by legal practitioners, sometimes to buy time, also contributes to the waste of time.
Traditionally, maritime suits involving shippers in Nigeria are known for taking long time, rendering the essence of justice futile.
In some cases, arrested vessels stayed at anchor for such a long duration that upon completion of the case, the ship would have been dilapidated.
On several occasions, shippers have had to abandon their claims.
36 Where there are cargos in the ship, it may have become expired.
The use of interlocutory application as a delay tool is also a major problem which renders maritime trials unattractive.
Interlocutory applications are interim prayers presented to the court in the course of the claim, which must be herd before the substantive suit.
In a maritime suit, interlocutory applications may be genuinely filed to preserve the res, and it may be filled out of malice to delay proceedings.
The federal high court civil procedure rules does limit the number of interlocutory applications that can be heard in the course of a suit, in the interest of justice.Frustration resulting from undue delay of litigation through interlocutory application has been obviated by the case of Maersk &anor v Adidide Investment Limited &anor37.
In this case, the substantive suit which was filed in 1996 was placed on hold while interlocutory appeal proceeded to the supreme court and was only finally determined after seven years, in 2003.
Similarly in the case of Amadi v NNPC38in taking cognizance of the procedural delay, the learned judge, Uwais JSC stated that resolution-and-the-practice-of-arbitration> accessed on 12th November, 2017.
37 Maersk & anor v Adidide Investment Limited &anor (2002)1 SC vol.
II 157.
38 Amadi v. NNPC [2000] l0 NWLR (pt 676)76. http://www.thelawyerschronicle.com/dispute-resolution-and-the-practice-of-arbitration http://www.thelawyerschronicle.com/dispute-resolution-and-the-practice-of-arbitration Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 10 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement...
The chequered history of this case once more brings to light the dilatory effect of interlocutory appeals on the substantive suit between the parties.
The action in this case was brought on the 29th day of April 1987... the final judgement on the interlocutory appeal is delivered today by this court.
It has taken thirteen years for the case to reach this stage... the case is to be sent back to the High Court to be determined hopefully on the merits after a delay of 13 years...
I believe that counsel owe it as duty to the court to help reduce the period of delay in determining cases in our courts by avoiding unnecessary preliminary objections, as the one here, so that the adage of “Justice delayed is justice denied” may cease to apply to the proceeding in our courts.
Several other reasons exist why litigation is not in any way really desirable when it comes to maritime trade and commercial activities; first, the outcome of litigation is uncertain.
The presiding Judge considers several principles of law before coming to a decision; as such neither party is assured of possibility of winning the case.
In addition, litigation could be unduly expensive and may lead to unnecessarily publicity.
The long duration may lead to loss of the subject matter and it destroys the relationship between the parties; thus affecting the economy in the long run.
The individual business men lose out, so also the nation.
c. Arbitration as an Alternative to Litigation Arbitration is a dispute settlement process involving two or more persons who submit their disputes to an impartial third 39 Ras Pal Gazi Construction Company Ltd vs. FCDA (2001) 10 NWLR Part 722 page 559.
40 Oparaji v. Ohanu (1999) 9 NWLR (Pt 618) 290 at 304. person or persons referred to as ‘arbitrators’ appointed specially for the purpose of privately interfering in that dispute, in a seemingly judicial capacity and delivering a final and binding judgment.
The final decision of the arbitrator is known as ‘An Arbitral’ award and it has the same effect as the decision of a court of law.39 Arbitration and indeed ADR is a traditional and historical practice in Nigeria.
40 This position was buttressed by Niki Tobi JSC in the case of John Onyenge &Ors vs. Chief Love day Ebere & Ors.41 However, arbitration law in Nigeria has metamorphosed over decades from the customary operation of arbitration to meet the demands and complexity of contemporary business transactions.
Legal Framework for International Commercial Arbitration There are numerous treaties that are relevant to arbitration at the international arena.
However, international commercial arbitration is based on the duo of the United Nations (UN) Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (UNCITRAL Model Law) and The New York Convention on Recognition and Enforcement of Foreign Awards 1958.
The UNCITRAL model law which emanated from unification of relevant provisions from arbitration laws globally was adopted by the UN General Assembly in 1985.
It has however enjoyed universal acceptance in the international business arena as an acceptable international standard and yardstick which protects investors from being subjected to discriminatory dispute settlement provisions and unfair practices.
The UNCITRAL mode 41 John Onyenge&Ors v. Chief Love day Ebere&Ors (2004) 11 MJSC 184 at 199-200.z.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 11 lay down the principle of non-intervention42 to the effect that in any matter to which the model apply, the domestic courts shall not interfere except as provided in the model law.
The article excludes residual powers of the court not expressly recognized by it, with the intent to get-rid of undue delay and speed-up arbitral process.
The model law has enjoyed extensive acceptance globally and this has aided recourse to arbitration for the settlement of maritime disputes globally.
The successful application of the UNCITRAL model law led to the adoption of International Commercial Conciliation law in 2002, about two decades later.
Efforts towards improving the UNCITRAL model law has been continuous as seen in the recent review of interim measures, preliminary, orders and recognition and enforcement of interim orders.
The New York Convention was adopted in 1958.
It imposes obligation on domestic courts of state signatories to refer to arbitration any matter before it, which incorporates a contractual arbitration clause.
It also requires that domestic courts grant foreign arbitral awards recognition and enforcement without subjecting it to fresh review, but for the few permissible exceptional circumstances.
43 The primary objective of the convention is to ease the process of recognition and enforcement of an arbitral award outside the country where it was delivered.
In order to ensure compliance, 42 UNCITRAL Model Law on International Commercial Arbitration, G.A.. Res.
40/72, 40 U.N. G.A.O.R.
Supp.
(No.
17), U.N. Doc.
A/40/17 (June 21, 1985), revised in 2006, G.A.
Res., Article 5; This is the principle of nonintervention, adopted into various National Laws including the English Arbitration Act section (c) 1996.
43 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958), Articles II & V. 44 European Convention on International Commercial Arbitration of 1961 Geneva, United the New York Convention considers as breach of treaty obligations any failure by the court of a state signatory to apply the provisions of the convention.
Another important instrument in the settlement of commercial dispute internationally is the Washington convention of 1965 (ICSID Convention) which has been ratified by several nations of the world.
The ICSID Convention deals with investment disputes involving citizens of state signatories.
The subject of international arbitration is also mentioned in Other relevant international instruments including the 1961 European Convention on International Commercial Arbitration, Moscow Convention of 1972, the Panama convention of 1975, the Ohada Treaty of 1993, the North American Free Trade Agreement of 1994 (NAFTA).
44 Besides the multilateral arena, there are regional bodies that address the subject of arbitration.
They include regional bodies’ set-up under the auspices of Asian African Legal Consultative Committee.
Like the Lagos Regional Centre For International Commercial Arbitration, International Court of Arbitration of the International Chamber of Commerce (“ICC”).
Whereas existence of international dispute settlement is important to protect foreign regime, it is necessary for such instruments to instruments to provide equal protection for all investors.
A typical example of failure to create level playing Nations, Treaty Series, vol.
484, p. 364 No.
; 1972 Convention on The Settlement by Arbitration of Cilvil Law Dispute Resulting From Relations of Economic and Scientific-Technical Cooperation Moscow, Article I-XIII 1972; Inter-American Convention on International Commercial Arbitration Panama Convention, January 30 1975, Treaty on the Harmonisation of Business Law in Africa (the Ohada Treaty 1993), Title 4; the North American Free Trade Agreement 1994 (NAFTA, Chapter 11.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 12 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... field is seen in Article 5 of the UNCITRAL Model Law which has far reaching effects.
The effect of Article 5 of the UNCITRAL Model Law is to grant preferential treatment and protection to foreign investors over domestic businesses.
The extent of suitability of the model for the protection of domestic businesses in Africa is questionable.
The compulsory recognition of foreign arbitral awards as prescribed by the New York Convention speaks to the effectiveness and importance of the institutional frame work for ADR at the national level.
It also more favourable to businesses from nations with well-developed legal systems, where contracting parties from such nations incorporate in their agreement dispute settlement clause requiring that commercial disputes be referred to his home country for settlement.
The mode of operation of arbitration is to permit parties to freely adopt rules that will govern the dispute settlement process.
Parties are to reach an agreement on rules of evidence, applicable laws, number of arbitrators, venue of arbitration etc.
The rules applicable for admission of evidence in International Commercial Arbitration were set-out by the International Bar Association (IBA), though parties are at liberty to adopt this rule or any other suitable rules.
In addition, there are other applicable rules setout by various international bodies; their application to cases however depends on the choice of parties.
Article 22 (3) of the Hamburg Rules prescribe that the place of arbitration may be determined by the Claimant provided the chosen location is a 45 The International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, Brussels, August 25 1924 and in force June 2, 1931 (Hague Rules).
46 The Protocol to Amend the International Convention for the Unification of Certain Rules of state within the territory where the claimant resides.
The rules also consider the Defendant by stating that place of arbitration may also be the Defendant’s principal place of business, the Defendant’s permanent resident, a place where the contract was signed and in which the Defendant also has a branch office or office of the agency through which the contract was signed.
The Hamburg rules expressly envisage settlement of maritime disputes by stating that the place of arbitration may also be the port of loading or port of discharge of goods forming the subject matter of contract and any other place designated in the contract or arbitration agreement.
It is also important to look at the Hague Rules45 and the Hague Visby Rules.46 Although the duo have no provisions on maritime arbitration they specify time limits for commencing maritime actions which might affect the right to resort to legal intervention whether via litigation or ADR.
Article 3(6) of The Hague and Hague Visby Rules require that legal actions against a carrier and a ship must be commenced within the duration of one year from the date set for the delivery of the goods.
While Article 22(2) of the Hamburg rules 47 requires that an arbitration clause in a charter party be specifically incorporated into the bill of laden with binding effects on anyone who acquires the bill in good faith; the claimant has the right of choice of place of arbitration and the Arbitral panel is to apply the rules of the convention.
Thus, any clause or term of an agreement that is inconsistent with the rules shall be null and void to the extent of such inconsistency.
The convention stipulates a Law Relating to Bills of Lading, signed at Brussels February 23, 1968 and in force June 23, 1977.
(Hague Visby Rules).
47 The United Nations Convention on the Carriage of Goods by Sea, 1978 (Hamburg Rules).
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 13 limitation period of two years for instituting legal action or arbitration48 proceedings, as opposed to the one year duration specified in The Hague and Hague Visby rules.
Legal Framework for Arbitration in Nigeria and its Application in the Maritime Industry Globally, trade, business and transactions generally referred to as commercial activities constitute a major driver of the economy.
Conducive business environment attracts investors, especially foreign investors who import capital through both foreign direct investment and foreign port-folio investment with positive impacts on government earnings.
However, because disputes often arise in the course of business dealings, availability of a conducive environment for dispute settlement is a matter of serious concern to investors.
Often times, an investor is interested in ensuring that there is easy access to avenue for fair settlement of disputes and that judgment or awards can be enforced within a reasonable time.
Investors are concerned about the availability of dispute settlement window, unbiased dispute settlement, ease of recognition and enforcement of awards.49 In the absence of a trusted judiciary, traders will be reluctant sign business contracts as there may be no avenue for the aggrieved party to seek redress timorously if the agreement is breached.
In the contemporary, arbitration is the most suitable ADR mechanism applied to 48 Ibid, Article 20 (1).
49 Sophie Pouget, ‘Arbitrating and Mediating Disputes Benchmarking arbitration and mediation regimes for commercial disputes related to foreign direct investment’ (The World Bank Group – October 2013) 4-18.
50 A.A. Asouzi, International Commercial Arbitration and African States (Cambridge University London 1999) Chapter 7 – ICSID Arbitration and Conciliation: The African Experience.
See also Yves Derains, ‘Soverign commercial disputes.
Most especially in cases of international commercial transactions in which investors are often reluctant to submit commercial disputes to court for litigation.
In Nigeria for instance, the performance of the judiciary is marred by several inadequacies including court-room congestion, un-profession practices among lawyers who often explore delay tactics and judicial corruption.
In developing countries, investors are particularly wary of submitting commercial disputes to courts because most contracts are state-owned and in most of those states sovereign immunity principle operates to protect state interest.50However, since commercial disputes would require enforcement of awards, Arbitration is the most applied ADR because of the enforceability of arbitral awards.
In Nigeria, arbitration has long been established and accepted as a suitable tool for the settlement of commercial disputes.51 This is because as far back as 1914, the English Arbitration Act of 1889 was made applicable to commercial disputes in the country and subsequently replaced with the Arbitration Ordinance Act of 1958.52 Business related arbitration whether investment arbitration or commercial arbitration may take place for settlement of disputes relating to various aspects of law.
However, the commonest aspect of law under which arbitration may arise includes industrial arbitration, maritime arbitration and tax related arbitration.
Maritime Immunity and Financial obligations’ (2000) 3 Business Law International issue 141.
Delaume, ‘Sovereign Immunity and Transnational arbitration” (1987) 3(28a) Arbitration International.
51 Okpuruwu vs. Okpokam (1998) 4 NWLR Part 90, 554 at 586.
52 J.Olakunle Orojo & M. Ayodele Ajomo Law and Practice of Arbitration and Conciliation in Nigeria (Mbeyi & Associates (Nigeria) Limited 1999) Chapter 1, pages 3 & 13.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 14 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... arbitration in Nigeria is particularly important, being key to unfolding the immense economic potential which the maritime sector holds for the nation.
The Nigerian maritime industry is a multi-million dollars industry which if fully explored may create the much desired room for diversification from current oil dependence thereby diving economic growth and sustainable development.
However, maritime disputes are often complex in nature.
As a result of complexity of maritime disputes, a single dispute may be multi-national, multiparty, multi-jurisdictional and expose parties to loss of billions of dollars with the risk of ending their business.
Hence, development of maritime arbitration is important in order to maximize the potentials of the nation’s maritime sector.
The laws governing commercial arbitration in Nigeria are as follow: a.
Arbitration and Conciliation Act 1990 Nigeria has adopted various relevant international instruments relevant to arbitration proceeding.
Nigeria was the first African state to accede to the UNCITRAL model law and the United Nations Convention on recognition and Enforcement of Foreign Arbitral Awards (New York) Convention was acceded to in 1970.
These two instruments were domesticated in the Arbitration and Conciliation Decree which came into force in 1988 and was later known as the Arbitration and Conciliation Act (ACA) (1990) by virtue of Section 315 of the 1999 constitution.53The applicability of the ACA covers all disputes resulting from commercial transactions, including 53 Constitution of the Federal Republic of Nigeria 1999, Section 315.
The section stipulates that an existing law shall have effect with such modification as necessary to bring it into conformity with the provision of the constitution international commercial transactions.
The preamble to the ACA describes it as: An Act to provide a unified legal framework for the fair and effective settlement of commercial disputes by arbitration and conciliation and to make applicable the Convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) to any award made in Nigeria or in any contracting state arising out of International Commercial Arbitration Part I of the Act borrows from the UNCITRAL model Arbitration law, while Part II is modeled after the UNCITRAL conciliation rules.
Part II contains further provisions on International commercial arbitration while Part IV specifies Nigeria’s treaty obligations under the New York Convention towards the recognition and enforcement of foreign arbitral awards.
In addition to the three parts, the Act also has three schedules.
The First Schedule contains rules of arbitration similar to the UNCITRAL model arbitration law, the Second schedule incorporates provisions of the New York Convention in relation to the recognition and enforcement of foreign arbitral awards, while the third Schedule contains provisions similar to the UNCITRAL conciliation rules.
b.
Arbitration Process under the Arbitration and Conciliation Act The Act provides all requisite guides for successful arbitration process.
Section 15(1) of the Act requires that the applicable rules in any arbitral proceedings shall be in accordance with the Arbitration rules in the first schedule of the ACA.
The provisions of such existing law are to be deemed to be made by an Act of the National Assembly dependent on the powers of the National Assembly or a House of Assembly to make such laws.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 15 the first schedule uphold the autonomy of the parties to the extent that even the mandatory provisions off the rule are subject to the agreement of the parties.
In order to further promote international commercial arbitration, Section 53 of the ACA empowers parties to set-aside the provisions of the Act ans forge the applicable rules to be relied upon in the course of settling their disputes.
This may be in line with the provisions of the First Schedule of the Act, the UNCITRAL model law or any other relevant international instrument.
The parties are also at liberty to make confidential the arbitral award at the end of the arbitration process.
54 An arbitral award can only be publicized subject to the agreement of the parties.
Except where the rules specifically agreed to by the parties expressly provides otherwise, there shall be no presumption of waiver of confidentiality of an arbitral process or award.
Except as provided by the Act in certain specifies circumstances, court intervention in an arbitration process is expressly prohibited.55 Where an arbitration agreement binds parties to a contract, such can only be revoked by subsequent express agreement of the parties or by leave of court.
56 Where parties to a contract have failed to first make recourse to arbitration before referring the dispute to court, the court is empowered to stay proceedings and refer parties to arbitration.
57 Parties to a contract including international commercial contract may have arbitrators to their dispute chosen by an appointing authority.
58 In order to facilitate 54 Arbitration and Conciliation Act 1988, S. 32.
55 Ibid S 34.
56 Ibid S 2.
57 Ibid S 4 and 5.
58 Ibid S 7.
59 Ibid S 23.
60 Ibid S 29, 30.
61 Ibid S 48. arbitration, the court has the power to order the attendance of a witness or production of a document for examination.
59 At the completion of an arbitration process, the arbitral award may be set aside or an arbitrator can be removed on grounds of misconduct.
60 International arbitral awards may also be set-aside.61 The Act provides for the recognition of arbitral award and the various grounds for refusal to recognize an arbitral award.
62 The duty of the court to uphold arbitration agreement entered into by parties was confirmed by the Supreme Court in Owners of the M.V Lupex v. NOCS Ltd63 However, where an arbitration process has been concluded, an arbitral award cannot be appealed.
It may however be set-aside in case of a domestic award, on grounds of misconduct or improper procurement.
64 International awards may also be set-aside on grounds contained in Article V of the New York Convention.
For the purpose of awarding cost, the ACA contain specific provisions to the effect that costs shall be reasonable taking into cognizance the amount in the dispute, complexity of subject matter, the duration of the arbitration and other relevant circumstances.65The Act also seeks to regulate the Arbitrator’s fees to avoid exploitation.
Although the ACA is a principal instrument on arbitration in Nigeria, it takes into cognizance other relevant laws which shall not be rendered inapplicable in the course of the arbitration.66 c. The Admiralty Jurisdiction Act 1991 62 Ibid S 51 and 52.
63 M.V Lupex v. NOCS Ltd (2003) 15 NWLR Pt 844, 469.
64 Arbitration and Conciliation Act (n-45) 30 (1) and (2).
65 Ibid S 49(2) and Article 38 of Arbitration Rules in the First Schedule.
66 Ibid S 35.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 16 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement...
The Admiralty Jurisdiction Act (AJA) is a federal legislation, enacted in 1991, which empowers the Federal High Court to assume jurisdiction over admiralty matters.
The Act describes admiralty jurisdiction as inclusive of jurisdiction to determine questions relating to proprietary interest in a ship or any interest specified in Section 2 of the Act.
The act specifies the grounds for jurisdiction of the court as including the place of performance of contract, parties’ domicile, place of payment being Nigeria or where plaintiff expressly submits to court jurisdiction, financial consideration involved accrued in Nigeria, Nigeria is a party, or the court is of the opinion that the matter be tried in Nigeria.67 Basically, the AJA provides” “Any agreement by any person or party to any cause, matter which seeks to oust the jurisdiction of the Court shall be null and void if1) the place of performance, execution, delivery, act or default is or takes place in Nigeria; or 2) any of the parties resides or has resided in Nigeria; or 3) the payment under the agreement (implied or express) is made or is to be made in Nigeria; or 4) in any admiralty action or in the case of a maritime lien, the plaintiff submits to the jurisdiction of the court and makes a declaration to that effect or the res is within Nigerian jurisdiction; or 5) it is a case in which the federal (Military) Government or a State of the Federation is involved and the Government or State submits to the jurisdiction of the Court; or 17 (1989) 3 NSC 588 10 6) there is a financial consideration accruing in, derived from , brought into 67 Admiralty Jurisdiction Act 1991, S 20. or received in Nigeria in respect of any matters under the admiralty jurisdiction of the Court; or 7) under any convention for the time being in force to which Nigeria is a party the national court of a contracting state is either mandated or has a discretion to assume jurisdiction; or 8) in the opinion of the Court, the cause, matter or action should be adjudicated upon in Nigeria.” This provision contained in Section 20 of the AJA has huge implications on the validity of arbitration agreements with foreign forums, particularly where such an arbitration clause is contained in a standard contract, this will be considered in details under the next sub-heading.
Arbitration of Maritime Disputes in Nigeria Maritime disputes are disputes resulting from maritime related commercial activities.
Maritime arbitration involves the settlement of maritime disputes through reference to arbitration.
The Arbitration and Conciliation (ACA) referred to maritime arbitration in describing the forms of transactions from which disputes may be referred to arbitration.
The act provides that arbitration may be explored for settlement of disputes resulting from various commercial transactions including trade in goods and services, distribution contract, commercial representation, ajency, factoring, leasing, construction, engineering work, licensing, investment, financing, banking, insurance, concession agreement, Joint Venture Agreement, industrial or business cooperation, carriage of goods or persons by air, rail, road or sea.68 68 Arbitration and Conciliation Act (ACA) in section 57 (1).
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 17 The implication of the above provision is that maritime arbitration is similar to arbitration relating to other aspects of law as such similar rules and procedure is applicable.
Nonetheless, the frequency of occurrence of maritime arbitration is in Nigeria is relatively low because maritime contracts such as Bill of Lading often oust the jurisdiction of Nigerian courts through their arbitration clauses.
Although the AJA contains provisions seeking to remedy this limitation, while bodies like the Maritime Association of Nigeria established in 2005 seeks to create increased awareness about maritime arbitration in the country, much is yet to be achieved.
Like other form of arbitration, the procedure for maritime arbitration includes: a. Referrer of cases to arbitration In order to refer a maritime dispute to arbitration, parties may either agree that arbitration is a preferred dispute settlement means at the point when the dispute arise or may have included an arbitration clause in the contract which forms the basis of their transaction.
In form, an arbitration agreement must be in writing.
69 It may however be incorporated into the written contract binding the parties or be contained in a separate writing document.
The essence of the requirement that an arbitration agreement be written is targeted at ensuring that parties to the transaction agree to with freely, without any form of duress or undue influence.
An arbitration agreement may also be inferred from the written correspondences exchanged between the parties and from the wordings of a state.
The Nigerian Investment Promotion Commission (NIPC) Act for instance, provides that any foreign investor who 69 Section 1and 2 ACA.
70 Ibid (n 68) S48 (b)(i) and 52(b)(i).
71 Ogunwale v. Syrian Arab Republic (2002) 9 NWLR (Part 771) 127. registers under the Act is automatically entitled to bring treaty arbitration under the ICSID system.
Since maritime transactions are investment related, an investor may choose to invoke this provision.
However, this may work against the free will of the other party and the right of choice of dispute settlement method In addition, an arbitration agreement can only be applicable to an arbitable dispute.
70 The arbitability of a dispute relates to whether or not it is capable of being referred to arbitration, determinable from the nature of the contract from which the dispute emanated.
71 Maritime dispute being commercial in nature is however arbitable.
Parties to an arbitration agreement must possess requisite legal capacity, and the agreement must be capable of being performed.
Generally, a matter is said to be non-arbitrable where the subject matter of the agreement incapable of being settled by arbitration under the Nigerian laws or where such award made will be contrary to public policy in Nigeria.72However, where a matter is arbitable, court intervention is prohibited.73 b.
The arbitration process There may be need for parties to apply for stay of proceedings prior to commencement of an arbitration process, where court proceedings are already ongoing on the matter before a court of competent jurisdiction.
Where either of the parties to an arbitration agreement institute an action in court, application for a stay of proceedings becomes a necessity as the mere existence of an arbitration clause or commencement of arbitration process does not operate as an automatic stay, and when the application for stay of proceedings is 72 (n-70).
73 Ibid S 34 ACA.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 18 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... made the court has the discretion on granting it.
This was clearly spelt-out in Section 4 and 5 of the Arbitration Act that: 4.
(1) a court before which an action which is the subject of an arbitration agreement is brought shall, if any party so requests not later than when submitting his first statement on the substance of the dispute, order a stay of proceedings and refer the parties to arbitration.
(2) Where an action referred to in Subsection (1) of this section has been brought before a court, arbitral proceedings may nevertheless be commenced or continued, and an award may be made by the arbitral tribunal while the matter is pending before the court.
5.
(1) If any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings.
(2) A court to which an application is made under subsection (1) of this section may, if it is satisfied(a) that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the arbitration agreement; and (b) that the applicant was at the time when the action was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings.
Before an arbitration process commences, parties are at liberty to decide the number of arbitrators to be appointed.
But 74 Ibid, S 6.
75 Ibid 44(1).
76 Ibid 44(5).
77 Ibid 44(2) and (6).
78 Ibid S. 54(2).
where they are unable to arrive at an agreement as to the number of arbitrators, the law presumes that there shall be three arbitrators.74A maritime transaction often has an international flavor as such resulting arbitration may readily fall under international commercial arbitration.
75 Where the parties to a maritime arbitration are desirous of appointing a sole arbitrator, either of them may propose the name of the sole arbitrator.76 Where disputing parties are desirous of appointing three arbitrators, each party shall appoint an arbitrator each, and the two arbitrators shall jointly appoint the third.77 However, where parties are unable to arrive at a consensus on the choice of arbitrators, recourse shall be made to the Secretary General of the Permanent Court of Arbitration in Hague who shall make the choice or arbitrators.78 c. Jurisdiction of Arbitral Tribunal The jurisdiction of a court or tribunal over a matter describes the legal authority to seat over, decide and resolve the issues in such dispute.
A party to an arbitration process may challenge the jurisdiction of the tribunal at any stage before the entering of defense.
However, where there are convincing grounds, the arbitral tribunal may still permit its jurisdiction to be challenged after defense has been entered.
The ruling on jurisdiction of the tribunal may address preliminary question or the substantive suit.79Parties to a maritime contract cannot expressly agree to oust court jurisdiction, where such agreement exist, it shall be null and void.80Thus in M.V.
PANORMOS Bay v. Olam (Nig.)
Plc81 where through Clause 7 of their agreement, parties 79 Ibid S 12 (3) and (4).
80 Admiralty Jurisdiction Act S. 20 AJA.
81 M.V.
PANORMOS Bay v. Olam (Nig.)
Plc 2004 5 N.W.L.R.
Part 865, C.A.1.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 19 ousted the jurisdiction of Nigerian courts the Court of Appeal invoked the combination of sections 2(1) and 4(2) of the Foreign Judgment (Reciprocal Enforcement) Act 82 and Section 20 of the Admiralty Jurisdiction Decree of 1991.
Where the forum of an arbitration process is outside Nigeria, the enforcement of the award is based on the provisions of the New York Convention as domesticated in the ACA.
Schedule 2 of the ACA which addresses recognition and enforcement of foreign awards is to the effect that foreign awards are recognized in Nigeria subject to reciprocity based on statutory recognition of Nigerian Arbitral awards in such state.
83 In order to determine validity of a judicial award, Nigerian courts are empowered to carry-out judicial review of arbitral awards.84 However, such review must have been initiated by an aggrieved party who has the right to apply to the High Court to set-aside the award within three months from the date the award was pronounced and in the case of an additional award, from the date the request for the additional award was disposed-off by the tribunal.85 The power of the court to setaside a judicial award was expressly recognized by the Supreme Court in the case of KSUDB V Fanz Limited.
86 The fundamental grounds for setting aside an arbitral award are the commission of improper conduct by the arbitrator in the course of the proceedings and the existence of error of law on the face of the award.
In the absence of a fundamental error, an arbitral award is final and binding on the parties to the agreement and all persons claiming there from.
82 Foreign Judgments (Reciprocal Enforcement) Act Chapter F35 (Chapter 152 LFN 1990) Laws of the Federation of Nigeria S 2(1) and 4(2).
83 Arbitration and Conciliation Act S. 54(1) ACA.
Limitations of Maritime Arbitration in Nigeria The Nigerian maritime industry has assumed increased importance which needs be maximized to drive economic growth and sustainable development.
Crude-oil which constitutes the major source of national income for the Nigerian government is exhaustible.
More so, global crude oil prices have continued to plummet while advocacy for environment protection drive the preference for clean energy.
In order to achieve desired economic growth, Nigeria must cease to be a monoculture oil dependent nation, by developing other viable economic sectors, among which is the maritime sector.
Nigeria is geographically at an advantageous position for maritime trade, having a long stretch of coast line and being situated along international trade route.
A look at the economic performance of other states with similar coastal potentials like Singapore, Shenzhen, Hong Kong and Dubai reveals the extent of economic prospect which Nigeria maritime industry holds.
More so, the current drive towards trade liberalization, facilitation of regional and transnational trade is a foundational step towards increased maritime activities.
However, from ship leases, to trade in goods and services, increased port actives, fishing agreements, marine tourism, biodiversity and deep see exploration, increased maritime activities increases the tendency of disputes among stake holders and calls for an effective dispute settlement system.
In the wake of globalization and the increased volume of maritime trade globally easy access to avenue for fair settlement of disputes and enforcement of awards within a reasonable 84 Ibid S 29-30.
85 Ibid S 29.
86 K.S.U.D.B vs. FANZ Limited (1990) 4 N.W.L.R.
Part 142 SC1).
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 20 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... time are prerequisites for attracting investors.
87 Maritime activities are time sensitive; excessive time waste may cause economic loss to parties as such lack of access to seek redress timorously discourages investors.
Consequently, ADR mechanisms have become very important tools for facilitating timely settlement of commercial disputes while preserving the relationship of parties and saving cost.
Arbitration is mostly suitable for settlement of commercial disputes including maritime suitable, however, maritime arbitration in Nigeria is generally faced with certain challenges which limit its desirability.
One of the challenges of maritime arbitration in Nigeria is the commonly adopted standard form of maritime contracts.
Most maritime contracts such as shipbuilding agreement, ship repair agreement, ship purchase agreement, bills of lading and charter parties are based on standard form contracts with little enabling environment for negotiation of terms by the weaker party.
The contracts usually contain arbitration clauses which stipulate the forum of dispute settlement to be established centers for international arbitration like London, Singapore and New York.
88 This work hardship on Nigerian parties in terms of the associated cost of travelling, mobilizing and paying the legal team.
Furthermore the foreign parties are often better equipped to succeed in the arbitration, since they have the wherewithal to hire the best hands available.
In most cases, Nigerian partners resort to abandonment of legitimate cargo and claims 87 Sophie Pouget, above n 49.
88 Memorandum of Agreement (Norwegian Saleform 1993) Clause 16; Gencon Charter party 1994 of the Baltic and International Maritime Council (BIMCO), Clause 19; Lloyd’s Standard Form of Salvage Agreement (1995), Clauses 7 – 10 and Para.
I Lloyd’s Standard Form of Salvage Agreement (2000), Para.
I. to foreign ship owners as a result of inability to bear the cost.
Section 20 of the AJA attempts to address this jurisdiction issue relating to the forum of the arbitration, as the section renders void any arbitration clause which purports to oust the jurisdiction of the Federal High Court, where an admiralty case has a strong link to Nigeria.
This is in conflict with the nation’s treaty obligation under the New York Convention; as such it has been held that foreign arbitration clauses will be upheld as they do not oust the jurisdiction of Nigerian courts.
89 Although the Nigerian courts generally align with nullifying arbitration agreements with foreign clauses where the contract in question is carried-out in Nigeria, this is not a universal position as it is subject to the variances in each case.
It can therefore be rightly said that there is a lacuna in Nigerian law as regards protection of local content in the maritime industry, which can only be properly addressed by statutory intervention.
This loophole can be taken care-of either by enacting a Federal Arbitration Act or a Carriage of Goods by Sea Act.
This approach is adopted in South Africa where the 1986 South African Carriage of Goods Act90permits persons carrying out business in South Africa including transactions based on documents for carriage of goods and arbitration agreements to South Africa to institute legal action before competent courts in the country regardless of any exclusive jurisdiction clause in the agreement.
Section 89 Owners of M.V Lupex v. Nigerian Overseas Chartering and Shipping Ltd [2003] 15NWLR Part 844 at 469.
90 Carriage of Goods by Sea Act 1986, <https://www.golegal.co.za/wpcontent/uploads/2016/12/Carriage-of-Goods-bySea-Act-1-of-1986.pdf> accessed 20 December 2017. https://www.golegal.co.za/wp-content/uploads/2016/12/Carriage-of-Goods-by-Sea-Act-1-of-1986.pdf https://www.golegal.co.za/wp-content/uploads/2016/12/Carriage-of-Goods-by-Sea-Act-1-of-1986.pdf https://www.golegal.co.za/wp-content/uploads/2016/12/Carriage-of-Goods-by-Sea-Act-1-of-1986.pdf Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 21 46 of the Canadian Admiralty Act contains similar provision to the effect that: (1) If a contract for the carriage of goods by water to which the Hamburg Rules do not apply provides for adjudication or arbitration of claims arising under the contract in a place other than Canada, a claimant may institute judicial or arbitral proceedings in a court or arbitral tribunal in Canada that would be competent to determine the claim if the contract had referred the claim to Canada, where (a) the actual port of loading or discharge, or the intended port of loading or discharge under the contract, is in Canada; (b) the person against whom the claim is made resides or has a place of business, branch or agency in Canada; or (c) the contract was made in Canada.
(2) Notwithstanding subsection (1), the parties to a contract referred to in that subsection may, after a claim arises under the contract, designate by agreement the place where the claimant may institute judicial or arbitral proceedings91 Besides legal intervention, there is need for industry sensitization and enlightenment of players in the maritime industry to create increased awareness on the consensual nature of arbitration which calls for negotiation of all terms in the arbitration contract including the dispute settlement clause.
Although the MAAN has been relentless in the attempt to create awareness for instance, in 2011, a joint committee was set-up to review the dispute settlement clause in the standard contract of various trading partners, and the committee produced a sample standard form contract which incorporates the 2010 Incoterms (Terms of Shipment) and sample of dispute settlement clause making Nigeria the forum.
Similarly, 91 Canadian Admiralty Act 1934, S 46. in 2016, the association launched a forum to create awareness on the resolution of maritime disputes via ADR to further sensitize Nigerians in the maritime sector on negotiation of dispute settlement clauses in maritime agreements to protect their interests.
Another issue is the contrasting effects of Section 4 and 5 of the Arbitration Act which deals with stay of court proceedings prior to the commencement of arbitration.
Where a matter before a court is subject of arbitration, Section 4 makes it compulsory for the court to stay proceedings and refer the matter to arbitration.
On the other hand, Section 5 does not compel the court to grant a stay of proceeding, rather the section leaves the decision at the discretion of the court.
The implication being that each section may be invoked by different applicants to yield varying outcomes.
The two provisions lack requisite correlation to back the philosophy of ADR as a preferable alternative to litigation for the settlement of commercial disputes.
There are no clear cut distinctions of circumstances when the grant of stay of proceedings is obligatory for the court and when same is discretionary.
Although on the face of it, it would appear that there is no conflict between the provisions of Section 20 AJA and Sections 4 and 5 of the Arbitration Act, however, where an arbitration clause oust the jurisdiction of the court and declare that the arbitral award shall be final, the problem of conflict of laws may arise.
In other occasions, the adopted provision for arbitration may be the Scott and Avery clause which delays the right of litigation by prescribing that arbitration shall be the first dispute settlement mode and litigation shall only be resorted to in the event of failure of arbitration.
In case of an arbitration agreement which contains the Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution 22 | Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... Scott and Avery clause, there is no conflict of laws between the provisions of the two laws in contemplation.
On several occasions, Nigerian courts have had to consider the effect of Section 20 AJA on the validity of arbitration agreements and the combined effect of Section 4 and 5 of the Arbitration Act, with emphasis on the forum stipulated in the arbitration clause.
In the case of M.V.
Parnomous Bay v. Olam (Nig) Plc 92 , it was held by the Court of Appeal that section 20 of the AJA has modified section 2 and 4 of the Arbitration Act and limited enforceable foreign agreements to those specifying Nigeria as a forum.
The decision is born out of the popular criticism by Nigerian parties against arbitration clauses in standard form contracts which not only provide for foreign forums but are also known to be oppressive, unfair and unjust to Nigerian parties.
Although this case may be distinguished from the case of Owners of M.V Lupex v. Nigerian Overseas Chartering and Shipping Ltd93where in addition to a suit filed by the respondent at the Federal High Court Lagos for damages for the loss suffered in a charter party as a result of breach committed by the appellant, the respondent also applied ex-parte for the arrest of the vessel.
A counter application by the Appellant that the arrest of the vessel be set-aside, the ship be released and the matter adjourned sine die on the grounds that the contract contained an arbitration clause, with the forum being London under the English law, as a result of which arbitration proceedings had commenced was declined by the trial judge.
The Appellant’s appeal to the Court of 92 M.V.
Parnomous Bay v. Olam (Nig) Plc (2004) 5 NWLR Pt 865.
93 Owners of M.V Lupex v. Nigerian Overseas Chartering and Shipping Ltd (2003) 15 NWLR pt 844, 469.
Appeal was also refused.
However, at the Supreme Court, the further appeal was granted, litigation was adjourned sine die to enable the arbitration proceedings continue in London.
In reading the lead judgment, The Hon.
Justice Utham Mohammed JSC stated that: These uncontroverted facts explain clearly that by submitting to arbitration the respondent had compromised its right to resort to litigation in court.
94Where parties have chosen to determine for themselves that they would refer any of their dispute to arbitration instead of resorting to regular courts a prima facie duty is cast upon the courts to act upon their agreement.
See Willesfordv.
Watson (1873) 8 Ch.
App.47395 Here the court did not consider the question whether an arbitration agreement will have the effect of ousting the jurisdiction of the court.
Nonetheless, one cannot but ask the question as to the reasons for the change in the view of the court in the subsequent MV Paranomous case.
It is however important to note that in the MV Lupex case, the respondent had not only signed the charter party agreement but had also submitted to the commencement of the arbitration proceedings in London, before turning around for the intervention of the Nigerian courts.
Nonetheless, the current position of Nigerian courts is unfavourable to arbitration agreement with foreign forums where Nigeria is the place of performance, execution, delivery of the default contract or any party to the dispute resides or has resided in Nigeria.96 94 Ibid.
486 – 487 paras A – A.
95 Ibid(n-60) 488.
96 Lignes Aeriennes Congolaises v. Air Atlantic Nigeria LTD. (2005)11 CLRN 55.
Brawijaya Law Journal Vol.6 No 1 (2019) Alternative Dispute Resolution Babatunde Arbitration Mechanisms in Nigeria’s Maritime Disputes Settlement... | 23 IV.
CONCLUSIONS AND SUGGESTIONS Since maritime sector serves as one of the most viable alternative sources of national income in Nigeria, the Nigerian maritime industry continue to expand.
While this brings ecopnomic benefit, it also increases the possibility of maritime disputes and therefore calls for installing a wellstructured dispute settlement system.
Where any dispute arises, litigation is usually the first point of call.
However, considering disadvantages of litigation process for business, arbitration becomes the next consideration due to its enforceability which makes it suitable for commercial disputes.
Unfortunately, maritime arbitration is unattractive to Nigerians in the maritime industry.
This is because foreign partners who are often party to maritime agreements adopt foreign drafted standard contracts which contain unfair arbitration clauses.
The arbitration clauses either oust court jurisdiction or require that arbitration forum shall be a foreign country.
Although Section 20 of the AJA attempt to remedy this and the Nigerian court has lend its voice by intervening to protect local content and domestic interest in cases of businesses that are closely connected to Nigeria, more needs be done in this regard.
The study therefore recommends the enactment of a federal carriage of goods act with the intent to provide level playing ground for all thereby protecting local content as regards settlement of maritime disputes.
Increased public sensitization and adoption of a standardized national arbitration clause in all maritime contracts involving Nigerians will also go a long way to in the protection of local content in maritime arbitrations in Nigeria.
Furthermore, In tackling the problem posed by the contrasting provisions of Sections 4 and 5 of the Arbitration Act in relation to the responsibility of the court to grant stay of proceedings in order to commence arbitration, the Act may be amended to specify circumstances when the grant of stay is compulsory and situations where such grant is discretionary.
This study also recommends reinforcement of S.20 AJA through enactment of Carriage of Goods by Sea Act which prohibits any agreement seeking to oust jurisdiction of Nigerian courts in addressing any disputes with strong connection to Nigeria.
This will also neutralize the effect of Article 5 of UNCITRAL model law which grants preferential treatment and protection to foreign investors over domestic businesses.
This study also calls for increased awareness on negotiation of terms of maritime agreement including dispute settlement provisions, through the activities of nongovernmental bodies such as the Maritime Arbitrators Association of Nigeria (MAAN) and other relevant stake holders.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.04 | 195 Indonesian Children Protection against Commercial Sexual Exploitation through Siri Marriage Practices in Maqashid AlShariah Perspective Hari Sutra Disemadia, Sholahuddin Al-Fatihb, Mochammad Abizar Yusroc aFaculty of Law, Universitas Internasional Batam, Batam, Indonesia Email: hari@uib.ac.id bFaculty of Law, Universitas Muhammadiyah Malang, Malang, Indonesia Email: sholahuddin.alfath@gmail.com cFaculty of Law, Universitas Brawijaya, Malang, Indonesia Email: abizar.yusro@gmail.com Submitted : 2020-06-14 | Accepted : 2020-09-16 Abstract: In Indonesia, the mode development of commercial children sexual exploitation has been carried out through the practice of Siri marriage.
The lack of literacy in children, economic conditions of the family, environment and social status are the reasons why children are vulnerable to sexual exploitation.
The research aims to examine the protection of children against commercial sexual exploitation through the Siri marriage mode from the Maqashid AlShariah perspective.
This research uses normative juridical research methods with the statutory approach, conceptual approach, and normative theological approach.
This research shows that Siri marriage based on Islamic law is permissible if it meets the requirements of marriage, but based on Indonesian national law, Siri marriage is prohibited if the purpose is to obtain material benefits for parents or the party to marry off children at an early age.
Siri marriage can be used as a criminal offense if it is done against a child.
Whereas in the Maqashid Al-Shariah perspective, marriage with children through Siri marriage is legal or permissible.
However, the marriage will only produce part of the marriage purpose, while other objectives in perspective Maqashid Al-Sharia tend to be ignored because early marriage is prone to psychological problems and lack of skills in the family.
As a result, marriage is considered to have the risk of producing bad things in the family, which can reduce the noble values that are the main mission of Islam.
Keywords: Child Protection; Sexual Exploitation; Siri Marriage; Maqashid Al-Syariah.
I.
INTRODUCTION Nowadays, problems regarding children in Indonesia are endless, even more, interesting to study because there are 1 Muhammad Fachri Said, ‘Perlindungan Hukum Terhadap Anak Dalam Perspektif Hak Asasi Manusia’ (2018) 4(1) JCH (Jurnal Cendekia interesting facts about children’s problems.1 Generally what is called a child is a person born from a marriage between a woman and a man.
Children are the forerunners of the Hukum) 141 <http://e-jurnal.stihpm.ac.id/index.php/cendekeahukum/article/view/ 97>, 143. mailto:abizar.yusro@gmail.com Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 196 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… birth of a new generation that is a successor to the ideals of the struggle of the nation and human resources for national development.2 Children are the nation’s assets, where the future of the state will come in the hands of the children.
The better the child’s personality now, the better the future life of the nation.
Vice versa, if the personality of the child is bad, it will also be bad for the life of the state to come.3 Religious perspectives, especially Islam, mention children as ‘dhaif’ or glorified creatures, whose existence is the authority of the will of God (Allah SWT) through the process of creation.
4 Because children have a noble life in the view of the Islamic religion, the child must be treated humanely as given a living both physically and mentally, so that later the child grows up to be noble as can be responsible for socializing himself to achieve the needs of his life in the future.5 In the sense of Islam, children are entrusted by Allah SWT to parents, the nation and state that will prosper the world as rahmatan lila’lamin and as heirs of Islamic teachings this understanding implies that every child born must be recognized, believed, and secured as implementation the deeds received by will be from parents, society, nation, and state.6 Whereas in Indonesian law, a child is someone who is not yet 18 (eighteen) years 2 Rahmat Fauzi, ‘Upaya Penanggulangan Tindak Pidana Pencabulan Terhadap Anak Di Kota Padang’ (2020) 14(1) KERTHA WICAKSANA: Sarana Komunikasi Dosen dan Mahasiswa 1 <https://www.ejournal.warmadewa.ac.id/index.ph p/kertawicaksana/article/view/1529>, 4.
3 Andy Lesmana, Definisi Anak (2015) <https://www.kompasiana.com/alesmana/55107a 56813311573bbc6520/definisi-anak>, Accessed 3 June 2020.
4 Hani Sholihah, ‘Perlindungan Anak Dalam Perspektif Hukum Islam’ (2018) 1(1) al-Afkar, Journal For Islamic Studies 38 <https://alafkar.com/index.php/Afkar_Journal/article/view/3 >, 43. old, including children who are still in the mother’s womb.
This provision is contained in Article 1 of Law Number 35 of 2014 concerning Amendments to Law No.
23 of 2002 concerning Child Protection (Child Protection Law).
The existence of the Child Protection Law emphasizes the legal legitimacy of child protection and the need to provide criminal sanctions for perpetrators of crimes against children in which the sanctions aim to provide a deterrent effect and encourage concrete steps to restore physical, psychological, and social recovery of children.7 The issue of child protection which is considered important today to be studied is the problem of protecting children from unscrupulous acts of trafficking children for commercial sexual exploitation purposes.
Through Press Release Number: B020/Set/Rokum/MP 01/02/2020, the Ministry of Women’s Empowerment and Child Protection has found 40 (forty) children who were victims of sexual exploitation during the period January-February 2020.
Children are traded by irresponsible persons with various abusive and inhumane treatment of the perpetrators of children.
Generally, sending areas for child trafficking for the purpose of commercial sexual exploitation are generally from disadvantaged areas or higher levels of poverty, while the receiving areas are big 5 Fadli Andi Natsif, ‘Problematika Perkawinan Anak (Perspektif Hukum Islam Dan Hukum Positif)’ (2018) 5(2) Jurnal Al-Qadau: Peradilan dan Hukum Keluarga Islam 175 <http://journal.uin-alauddin.ac.id/index.php/alqadau/article/view/7101>, 180.
6 Lesmana, above n 3, Accessed 3 June 2020.
7 Nur Afdhaliyah, Ismansyah and Fadillah Sabri, ‘Perlindungan Hukum Terhadap Anak Sebagai Korban Pencabulan’ (2019) 21(1) Kanun Jurnal Ilmu Hukum 109 <http://jurnal.unsyiah.ac.id/kanun/article/view/12 082>, 114.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… | 197 cities, industrial cities, or tourist areas.
Then, the parties involved in commercial sexual exploitation of children are irresponsible parties such as commercial sex syndicate organizations, pedophiles, drug distributors, and even those closest to children such as families.8 However, in its development, the commercial sexual exploitation of children in Indonesia has now been carried out through the practice of Siri marriage.
Children who are vulnerable to sexual exploitation through ‘Siri marriage’ mode are not only due to the lack of literacy in children and the economic condition of the family, but also because of their environment and social status.
So it can be said, the lower the social status of children or children’s families, the potential for children to be manipulated, made into sexual objects in the name of Siri marriage is high because it is socially in a ‘powerless’ condition.9 In addition to financial conditions and social status, the rise of commercial sexual exploitation of children in the community’s life is also caused by the omission from the authorities, such as village officials.
The village officials actually have the authority to develop culture and traditions for protecting children.10 Considering Siri marriage’s is a legal marriage according to Islamic law because Siri marriage has fulfilled the criteria for the validity of the marriage, namely an agreement through ‘ijab and qabul’, two 8 Kementrian Hukum dan HAM RI, Eksploitasi Seksual Komersial Mengintai Anak Kita <http://ditjenpp.kemenkumham.go.id/hukumpidana/648-eksploitasi-seksual-komersialmengintai-anak-kita.html>, Accessed 3 June 2020.
9 Anugrah Andriansyah, Nikah Siri Dan Eksploitasi Seksual Terhadap Anak (2020) <https://www.voaindonesia.com/a/nikah-Siri-daneksploitasi-seksual-terhadap-anak/5426023.html>, Accessed 4 June 2020.
10 Arist Merdeka Sirait, ‘Eksploitasi Seksual Komersial Mengintai Anak Kita’ (2018) 5(3) Jurnal Legislasi Indonesia 87 <http://ebrides, a marriage guardian, and two witnesses.
11 However, Siri marriage is still often used as an alternative to anticipating free promiscuity between men and women who are morally and materially judged not to have the readiness to get married formally.12 In fact, this has led to new problems in the community such as betel marital practices used as an excuse to legalize commercial sexual exploitation of children, which has exploited the provisions of the Child Protection Law.
Susanto as Chairman of the Indonesian Child Protection Commission (KPAI) on Tuesday, May 19, 2020, through a Webinar with the theme ‘Perlindungan Anak Terhadap Eksploitasi Seksual Melalui Nikah Siri’ said that Siri marriage to children would be interpreted as violating the law if there were elements of economic marriage.
Susanto further revealed that there are Siri marriages with children that are not based on religious motives, but many cases of Siri marriages are used to legalize sexual relations.
Academics from the Faculty of Law of Diponegoro University, Pujiyono also said that Siri marriage in a religious perspective is not a criminal offense.
However, the marriage becomes a criminal offense if it is carried out against a child with the motive to legalize sexual relations.13 Various cases of commercial sexual exploitation of children, especially through Siri marriage, are a sign for all parties to jurnal.peraturan.go.id/index.php/jli/article/view/3 00>, 89.
11 M. Ali Rusdi, ‘Status Hukum Pernikahan Kontroversial Di Indonesia (Telaah Terhadap Nikah Siri, Usia Dini Dan Mut’ah)’ (2016) 9(1) Al-’Adl 37 <http://ejournal.iainkendari.ac.id/aladl/article/view/667>, 41.
12 Rihlatul Khoiriyah, ‘Aspek Hukum Perlindungan Perempuan Dan Anak Dalam Nikah Siri’ (2018) 12(3) Sawwa: Jurnal Studi Gender 397 <http://journal.walisongo.ac.id/index.php/sawwa/ article/view/2094>, 401.
13 Andriansyah, above n 9, Accessed 4 June 2020.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 198 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… optimize the function of prevention and protection of children according to the mandate in the Child Protection Act and Islamic Law perspective.
Based on the explanation above, this research becomes important considering there are still many cases of commercial sexual exploitation of children which are legalized through the practice of marital Siri.
Previous research related to current research has been carried out by 1).
Satrio Ageng Rihardi in 2018 focused on the form of legal protection for girls who are victims of child exploitation and what rights victims of child exploitation will receive 14 ; 2).
Ariyadi in 2019 this research focuses on the legal provisions of the crime of sexual exploitation of children according to Islamic law which includes the form, elements, and legal sanctions 15 ; 3).
Rusmilawati Windari in 2019 focusing on tackling commercial sexual exploitation of children in Indonesia based on a global-local based approach.
The global side is shown by the ratification of several conventions and related protocols, as well as the implementation of bilateral and multilateral cooperation.
While on the local side, through the application of the Child Protection Law16; and 4).
Laurensius Arliman S. in 2017 which focused on the pattern of structuring law enforcement and the continued protection of children from sexual exploitation crimes.17 Based on the previous research, there is a different focus on this research, namely 14 Satrio Ageng Rihardi, ‘Perlindungan Hukum Terhadap Hak-Hak Anak Perempuan Sebagai Korban Eksploitasi Seksual’ (2018) 2(1) Literasi Hukum 61 <https://jurnal.untidar.ac.id/index.php/literasihuk um/article/view/762>, 61.
15 Ariyadi, ‘Tindak Pidana Pelaku Eksploitasi Seksual Pada Anak Di Tinjau Dari Hukum Positif’ (2018) 5(2) Jurnal Hadratul Madaniyah 73 <http://journal.umpalangkaraya.ac.id/index.php/jh m/article/view/888>, 73.
16 Rusmilawati Windari, ‘Penanggulangan Eksploitasi Seksual Komersial Anak (ESKA) regarding the protection of children against exploitation carried out through Siri marriage based on the Maqashid Al-Shariah perspective.
This is because marriage through Siri marriage in the perspective of Islamic law is legal and not a criminal act.
However, this marriage becomes a criminal offense if it is committed against a child with the motive of legalizing sexual relations.
For this reason, the Maqashid Al-Syariah perspective is used in this study.
This research aims to uncover forms of child protection against commercial sexual exploitation from the perspective of positive Indonesian law and the Maqashid Al-Shariah perspective.
Also, this research aims to support the literacy of child protection to the community and contribute to the literature on the protection of children against sexual exploitation through Siri marriage practices based on positive law in Indonesia and the Maqashid Al-Syariah perspective.
II.
LEGAL MATERIALS AND METHODS The specifications of this research are descriptive-analytical with normative doctrinal or juridical research types.
Descriptive-analytical research is intended to describe, examine, and explain the problem to be studied, namely the protection of children against commercial sexual exploitation through Siri marriage in the Maqashid Al-Shariah perspective.
The Berdasarkan Global Local Based Approach (Glocalization)’ (2019) 2(2) Soumatera Law Review 282 <http://ejournal.kopertis10.or.id/index.php/souml aw/article/view/4369>, 282.
17 Laurensius Arliman S., ‘Reformasi Penegakan Hukum Kekerasan Seksual Terhadap Anak Sebagai Bentuk Perlindungan Anak Berkelanjutan’ (2017) 19(2) Kanun: Jurnal Ilmu Hukum 305 <http://www.jurnal.unsyiah.ac.id/kanun/article/vi ew/7983>.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… | 199 research approach used is the statutory approach, conceptual approach and normative theological approach.
The statutory approach is carried out by examining all laws and regulations that are related to the problem (legal issue) is being faced.
The conceptual approach departs from the views and doctrines developed in the science of law.
This approach is crucial because understanding the views/doctrines that develop in legal science can be a basis for building legal arguments when resolving legal issues at hand.
Meanwhile, the normative theological approach is to understand religion literally, which can be interpreted as an effort to understand religion by using divine science based on the belief that being is empirical.
This research relies on secondary data in the form of primary legal materials, secondary legal materials, and tertiary legal materials obtained through literature research as a data collection technique, which are then analyzed using theological analysis and qualitative analysis techniques to obtain actual conclusions.
III.
RESULT AND DISCUSSION Children as Victims of Commercial Sexual Exploitation through Siri Marriage Practices in Indonesia Indonesia as a state party in the Convention on the Rights of the Child and has ratified the Convention on the Rights of the Child through Presidential Decree Number 36 of 1990 concerning Ratification of the Convention on the Rights of the Child, has responsibility to protect the children in Indonesia.
The ratification is a concrete manifestation of the government’s commitment to providing guarantees for the fulfillment of the rights and protection of all 18 Kementrian Hukum dan HAM RI, above n 8, Accessed 3 June 2020.
Indonesian children.
The ratification also requires Indonesia to prevent all forms of commercial sexual exploitation of children by taking preventive measures or preventing, protecting, or eradicating these crimes against humanity.
Because one of the fundamental rights inherent in the child is the right to receive adequate protection (rights) from the state.18 Referring to the provisions of Article 34, Article 35, and Article 36 of the Convention on the Rights of the Child, every country in the world that has ratified the Convention on the Rights of the Child, including Indonesia, is obliged to protect children from all forms of sexual exploitation, and sexual abuse.
Then to implement the purpose of Article 34, Article 35, and Article 36 of the Convention on the Rights of the Child, the Convention on the Rights of the Child provisions require participating countries to take all national, bilateral and multilateral steps to prevent the inducement or coercion of children to engage in all forms of sexual activity, the abuse of children exploitative children in the form of prostitution or other sexual practices and the use of children for pornographic performances and pornographic materials.
To implement the Convention on the Rights of the Child, the Government of Indonesia has enacted various laws and regulations, including Law Number 23 of 2002 concerning Child Protection and Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection (Child Protection Law) as well as other laws and regulations governing child welfare, juvenile justice, child labor, eliminating violence against children, and child trafficking.
This reinforces the Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 200 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… statement that the fulfillment of children’s rights and protection is necessary because starting from the international and national levels they already have legal instruments.
Also, because the handling of children’s issues is cross-sectoral in development, holistic and integrative handling is very important, including engagement and cooperation with all stakeholders from government, community, media and business sectors.19 Article 1 of the Child Protection Law states that a child is someone who is not yet 18 (eighteen) years old, including children who are still in the womb.
Whereas, what is meant by victims are those who suffer physically and spiritually as a result of the actions of others who seek fulfillment of themselves or others who are contrary to the human rights of the sufferer.
20 Therefore, what is meant by a child as a victim of sexual exploitation is a child who is not yet 18 years of age who suffers suffering as a result of a crime namely sexual exploitation where the child is used arbitrarily for sexual purposes in exchange for cash or other forms between children, sex service buyers, intermediaries or agents, and other parties who benefit from sexuality trafficking.21 The term sexual exploitation is also referred to as Commercial Sexual Exploitation of Children (ESKA), is a sexual crime against children, or a form of sexual activity that is very abominable against 19 Andika Panduwinata, Peringatan 25 Tahun Ratifikasi Konvensi Hak Anak Indonesia (2015) <https://wartakota.tribunnews.com/2015/12/15/pe ringatan-25-tahun-ratifikasi-konvensi-hak-anakindonesia>, Accessed 10 May 2020.
20 Bambang Waluyo, Viktimologi Perlindungan Korban Dan Saksi (Sinar Grafika, 2012), 6.
21 Ida Ayu Kade Karina Putri and Ni Nyoman Sukerti, ‘Perlindungan Hukum Terhadap Anak Korban Eksploitasi Seksual Dalam Perspektif UndangUndang No.
23 Tahun 2002 Tentang Perlindungan Anak’ (2015) 4(3) Kertha Wicara: Journal Ilmu Hukum 1 children and women.
Other terms are sexual activities of an adult or their peers using physical coercion or threats, emotional deception or manipulation in the form of rape, sexual exploitation (use of children for sexual purposes), fondling a child’s genitals, sodomy, showing genitalia (exhibitionist).22 Commercial Sexual Exploitation of Children (ESKA) is also interpreted as a fundamental violation of children’s rights.
These violations consist of sexual violence by adults and the provision of rewards in the form of cash or goods against a child, or a third person, or others.
The child is treated as a sexual object and as a commercial object.23 Commercial sexual exploitation of children is the dark side of globalization in the midst of world society.
Globalization which is identical with interconnectedness and interdependence, as well as the birth of the movement of economic flows, goods, capital, as well as information and ideas on an international scale, has indirectly become a criminal factor in the emergence of various types of crimes that are globalized and do not recognize boundaries countries, such as human trafficking for sexual exploitation.24 As a reality, globalization refers to the emergence of globalized development throughout the world, which occurs in <https://ojs.unud.ac.id/index.php/kerthawicara/art icle/view/15357>, 3.
22 Alit Kurniasari, ‘Faktor Risiko Anak Menjadi Korban Eksploitasi Seksual (Kasus Di Kota Surabaya)’ (2016) 5(3) Sosio Konsepsia 113 <https://ejournal.kemsos.go.id/index.php/SosioKo nsepsia/article/view/251>, 122.
23 Mutiara Nastya Rizky et al, ‘Perlindungan Hukum Terhadap Anak Korban Eksploitasi Seksual Komersial Melalui Media Sosial’ (2019) 2(2) Media Iuris 197 <https://ejournal.unair.ac.id/MI/article/view/13193>, 204.
24 Windari, above n 16, 286.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… | 201 interdependent relations between countries.25 This globalized development is illustrated by the existence of trade and global markets (liberalization of trade), global communication with indicators of massive internet use, global travel and movement, global networks, global environmental damage and climate change, and the emergence of hybrid culture.
The influence of the dominance of American values as an indicator of globalization in the world.26 As a result of the sexual exploitation of children, the child suffers physical and spiritual suffering as a result of the actions of others who seek fulfillment of their selfinterest in ways that are contrary to the human rights of the victim.
27 Children as victims also suffer losses, firstly, mentally, where victims feel that their actions must be contrary to their rights and obligations as a child, but victims cannot fight, secondly, physically, where victims must give up their physical needs for the sexual satisfaction of others and third, socially where the victim is ostracized in social relations, where the community considers the real perpetrators of a crime even though the child is only a victim of sexual exploitation of children who can come from his parents, family, or members of the surrounding community.28 The forms of commercial sexual activity against children both in the provisions of the CRC and the Child Protection Law explain that commercial 25 J Agung Indratmoko, ‘Pengaruh Globalisasi Terhadap Kenakalan Remaja Di Desa Sidomukti Kecamatan Mayang Kabupaten Jember’ (2017) 5(2) Citizenship Jurnal Pancasila dan Kewarganegaraan 121 <http://ejournal.unipma.ac.id/index.php/citizenship/article /view/1646>, 129.
26 Windari, above n 16, 286.
27 Ariyadi, above n 15, 78.
28 Kurniasari, above n 22, 124.
29 Kementrian Hukum dan HAM RI, above n 8, Accessed 3 June 2020.
30 Andriansyah, above n 9, Accessed 4 June 2020. sexual exploitation of children includes sexual abuse of children by adults by coercion, giving money or the like to the child concerned or parties third, children are made as sex objects and commercial objects.
Commercial sexual exploitation of children can also be seen in the form of coercion and violence against children, in the form of forced labor and modern forms of slavery (a contemporary form of slavery).29 Today, commercial sexual exploitation of children in Indonesia, in particular, is done in various ways or modes, one of which is the Siri marriage mode.
Susanto as the Chairperson of KPAI revealed that children are vulnerable to being sexually exploited through the Siri marriage mode due to the lack of literacy in children, economic conditions of the family, and also because of the environment and social status.
30 In Indonesia, the definition of Siri marriage does not exist but Siri marriage can be understood as a marriage conducted by a man and a woman who has fulfilled the requirements and the harmony of the marriage,31 but not officially recorded at the Office of Religious Affairs (KUA) for those who are Muslim and civil disability offices for those who are not Muslim.32 Al-Qur’an as a guide for Muslims, normatively many people encourages people to live in pairs that aim to create a happy and 31 Dahlia Haliah, ‘Nikah Sirri Dan Perlindungan Hak-Hak Wanita Dan Anak (Analisis Dan Solusi Dalam Bingkai Syariah)’ (2016) 1(1) Al-Ahkam: Jurnal Ilmu Syari’ah dan Hukum 35 <http://ejournal.iainsurakarta.ac.id/index.php/alahkam/article/view/81>, 36.
32 Aidil Alfin and Busyro, ‘Nikah Siri Dalam Tinjauan Hukum Teoritis Dan Sosiologi Hukum Islam Indonesia’ (2018) 11(1) Al-Manahij: Jurnal Kajian Hukum Islam 60 <http://ejournal.iainpurwokerto.ac.id/index.php/al manahij/article/view/1268>, 64.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 202 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… peaceful family.33 Regarding marital status, the Al-Qur’an also mentions in the letter AnNisa (4): 21, that marriage is ‘mitsaqan galidhan’, which is a strong bond.
The bond began to be recognized after the saying of an agreement contained in the form of ijab and qabul.
Based on the Qur’an and the hadith, the scholars concluded that the things that included the conditions or the harmony of marriage are the prospective husband and future wife, the marriage guardian, the existence of two witnesses, as well as an agreement through ijab and qabul.
34 Therefore, every marriage that has been carried out by a Muslim who has fulfilled the above conditions or requirements is ‘legal’ according to Islamic law, even though there is no record of marriage as an administrative requirement by the state.35 There is an understanding that Siri marriage is legal according to Islamic law which triggers many people engaging in Siri marriage.
Such conditions open up opportunities for parties not responsible for making Siri marriage as a ‘tool’ in legalizing an illegal act such as commercial sexual exploitation of children.
In line with Pujiono’s expression which states ‘Siri marriage in a religious perspective is not a criminal offense.
However, marriage becomes a criminal offense if it is carried out against a child’.36 Based on the national law perspective that marrying a child at an early age either 33 Candra Ulfatun Nisa, Hari Sutra Disemadi and Ani Purwanti, ‘Adat Kejawen Ngalor-Ngetan Sebagai Alasan Adhalnya Wali Ditinjau Dari Perspektif ‘Urf Dalam Hukum Islam’ (2020) 9(1) Jurnal Magister Hukum Udayana (Udayana Master Law Journal) 153 <https://ojs.unud.ac.id/index.php/jmhu/article/vie w/55721>, 154.
34 Syukri Fathudin Ahmad Widodo and Vita Fitria, ‘Problematika Nikah Siri Dan Akibat Hukumnya Bagi Perempuan’ (2010) 15(1) Jurnal Penelitian Humaniora 1 through the practice of Siri marriage is an act that violates the law so that the act is illegal.
Marriage at an early age can be said to be illegal or not legally valid if it is contrary to positive law in Indonesia, especially in violation of Law Number 16 of 2019 concerning Amendment of Law Number 1 of 1974 concerning Marriage (Marriage Law).
The amendment to the Marriage Law of 1974 became the starting point for changes and renewal of marital arrangements in Indonesia.
Amendments to the Marriage Law amend several things, one of which is the minimum age limit for women to get married.37 The Marriage Law determines the age limit for women to be the same as the minimum marriage age limit for men which is 19 years old.
Marriage at an early age or less than a predetermined age limit certainly occurs with a variety of factors that influence it, mentioned earlier the factors of betel marriage to children who are not yet 19 years old due to lack of literacy in children, economic conditions of the family, as well as environmental conditions and social status.
For irresponsible parties and for parents who allow and benefit materially from a child marriage through serial marriages can be categorized as a crime that has violated Article 7 of the Marriage Law.
Criminal sanctions are given to parents or other parties who intentionally marry off children who have not reached the age limit determined by the Marriage Law is a form of <https://journal.uny.ac.id/index.php/humaniora/ar ticle/view/5030>, 6-7.
35 Alfin and Busyro, above n 32, 67.
36 Andriansyah, above n 9, Accessed 4 June 2020.
37 Sahuri Lasmadi, Kartika Sasi Wahyuningrum and Hari Sutra Disemadi, ‘Kebijakan Perbaikan Norma Dalam Menjangkau Batasan Minimal Umur Perkawinan’ (2020) 3(1) Gorontalo Law Review 1 <http://jurnal.unigo.ac.id/index.php/golrev/article/ view/846>, 8.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… | 203 legal certainty in Indonesia.
Therefore, any regulation regarding early childhood marriage must refer to positive law which has a higher legal level.
Therefore, all Indonesian people must obey and obey the national positive law.
Penalties for perpetrators who allow or who are involved in early child marriage through Siri marriages whose purpose is to obtain profits (commercial) must be enforced, considering that child marriage that is not yet mature enough is considered to have an impact or risk, as follows: 1).
It causes death in mothers giving birth.
This death is caused due to childbirth so often occurs in young mothers under the age of 20 years old.
Lack of preparation for childbirth and weak physical condition are the main causes of death; 2).
It causes death in infants.
Mothers who give birth to babies at a young age, often suffer unfavorable fate.
The events can be different such as premature delivery, weight loss, and someone who dies immediately; 3).
Hampered the process of pregnancy and childbirth.
Mothers who get married at an early age can experience bleeding, lack of blood, make it difficult and take a long time in the delivery process so that it can cause cancer in the cervix later in life 38 ; 4).
Economic problems which are generally a person who is married at an early age still do not have mature knowledge and skills, consequently, it becomes difficult to find work with sufficient income to meet household needs.
Low-income can damage and render households out of harmony, and 38 Tania Savitri, Bahaya Kesehatan Yang Timbul Akibat Pernikahan Dini (2018) <https://hellosehat.com/hidup-sehat/tipssehat/bahaya-kesehatan-akibat-pernikahan-dini/>, Accessed 15 May 2020.
39 Suara.com, Angka Pernikahan Dini Di Indonesia Memprihatinkan (2019) <https://www.ayocirebon.com/read/2019/12/16/4 032/angka-pernikahan-dini-di-indonesiamemprihatinkan> Accessed 20 May 2020.
40 Rihardi, above n 14, 68.
5).
The problem of maturity, in which a person is said to be an adult is strongly influenced by his age, young age (12-19 years old) shows that the soul is still unstable, so the age of marriage that is too early can have an impact with increasing divorce cases, due to lack of awareness to take responsibility in the household.39 Protection of Children against Commercial Sexual Exploitation through Siri Marriage Practices in Maqashid AlSyariah Perspective Every human being born naturally will surely get basic rights, namely freedom, right to life, protected rights, and other rights.
40 Human rights are fundamental rights that are inherently inherent in every human being, are universal and forever so that the need for respect, protection and can not be reduced by anyone.
Human rights are an appreciation of the degree and dignity of humans which is a clear recognition that humans are humans.41 Human rights are interrelated with the dimensions of human life because human rights arise because of their dignity and human dignity.
Human rights continue to develop along with the development of the face and human self itself which currently tends to be influenced by the environment of the community.42 The State of Indonesia is a country guaranteeing human rights through the welfare of each of its citizens, including the protection of children’s rights.
Basically, 41 Bobi Aswandi and Kholis Roisah, ‘Negara Hukum Dan Demokrasi Pancasila Dalam Kaitannya Dengan Hak Asasi Manusia (HAM)’ (2019) 1(1) Jurnal Pembangunan Hukum Indonesia 128 <https://ejournal2.undip.ac.id/index.php/jphi/artic le/view/4286>, 130.
42 Madja El Muhtaj, Hak Asasi Manusia Dalam Konstitusi Indonesia (Dari UUD 1945 Sampai Dengan Perubahan UUD 1945 Tahun 2002) (Kencana Prenada Media Group, 2005), 27.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 204 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… child protection is able to guarantee and protect the rights of children to be able to live, grow, develop in accordance with their dignity and dignity as whole human beings.
The principle of legal protection for human rights because according to its history in the West, the birth of the concepts of the recognition and protection of human rights is directed at the limitations and laying down of community and government obligations.43 The problem of child protection is complex and can cause a variety of problems, where the problem cannot be solved individually, but rather must be addressed together.
44 Based on positive law in Indonesia, child protection has been accommodated in Article 28B Paragraph (2) of the 1945 Constitution of the Republic of Indonesia and regulated in Law Number 23 of 2002 concerning Child Protection and Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 on Child Protection (Child Protection Law).
With the Child Protection Act, Indonesia has endeavored to preventive protection of children with an effort that establishes a condition where every child can exercise his rights and obligations through the Child Protection Law.
Children have special rights or special protection as victims of work according to the law, which is regulated in Article 59 of the Child Protection Law, which states that the Government of Indonesia and other State institutions have the obligation and responsibility to provide special protection to children in emergency situations; children in conflict with the law; children from minority and isolated groups; children who are exploited economically and/or sexually; children who are victims of narcotics, alcohol, psychotropic and other addictive substances; 43 Rihardi, above n 14, 68. children who are victims of pornography; children with HIV/AIDS; child victims of abduction, sale and/or trafficking; child victims of physical and/or psychological abuse; child victims of sexual crimes; child victims of terrorism networks; children with disabilities; child victims of mistreatment and neglect; children with deviant social behavior; and children who are victims of stigmatization from labeling are related to the condition of their parents.
Then special rights or other special protections are regulated in Article 66 of the Child Protection Law, whereby the Government of Indonesia and other State Institutions are obliged to protect children from commercial sexual exploitation preventively through legislation or repressive protection, that is, they must protect the rights of children who are victims of commercial sexual exploitation with different forms of protection depending on the suffering/loss suffered by victims of child exploitation.
Related to the act of marrying a child through a Siri marriage with the intent and purpose of sexual exploitation certainly does not just happen, but the need for further research relating to the factors that influence the occurrence of the act.
This form of repressive protection can also be done by providing a deterrent effect through sanctions to parents or other parties who deliberately allow and utilize it to obtain benefits in child marriages through serial marriages which can be categorized as criminal acts, therefore in criminal law perspective it can be incorporated as a criminal to parents who have any involvement in the act of marrying off children at an early age so that criminal sanctions can provide legal certainty.
As for the form of repressive protection contained in Article 290 of the Indonesian Criminal Code 44 Putri and Sukerti, above n 21, 4.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… | 205 (KUHP) Jo.
Article 56 of the Criminal Code (KUHP), and Article 88 of the Law on Child Protection with the maximum imprisonment of 10 (ten) years and/or a maximum fine of IDR.200,000,000 (two hundred million rupiahs).
Another alternative strategy is needed in protecting children against sexual exploitation through the practice of Siri marriage.
At this point, the Maqasid AlShariah perspective can be used as an alternative in protecting children in Indonesia, who are predominantly Muslim.
In Islam, children are the responsibility of parents to protect them and not let children work or employ them.
Islam forbids the killing of children for any reason, whether due to poverty, the threat of poverty, or an excessive passion for honor.45 Muslims have a general obligation to protect families including children as stipulated in the Al-Qur’an letter Al-Tahrim (66): 6; Children must be protected because parents are obliged to protect and provide for living contained in letter Al-Baqarah (2): 233; and if parents are unable, the closest relative who has to protect because it is related to the inheritance is stated in letter Al-Baqarah (2): 233.
This is where the implication of the child’s right to obtain his needs or the rights of the child then a reverse relationship emerges from the obligations of people parents to provide good care for them, so they can develop well for the future of the nation and state.
45 Indar Wahyuni, ‘Permasalahan Pekerja Anak: Perspektif Maqashid Syari’ah’ (2015) 9(1) Mahkamah: Jurnal Kajian Hukum Islam 84 <http://syekhnurjati.ac.id/jurnal/index.php/mahka mah/article/view/292>, 87.
46 Iqbal Kamalludin and Barda Nawawi Arief, ‘Kebijakan Reformasi Maqâshid Al-Syarîah Dan Kontribusinya Dalam Formulasi Alternatif Keringanan Pidana Penjara’ (2018) 15(1) AL-’ADALAH 182 <http://ejournal.radenintan.ac.id/index.php/adalah /article/view/2931>, 187.
The responsibility of Muslims to look after children and the obligation to carry out these tasks as a concrete manifestation of obedience to God (Allah SWT), is one of the principles of shari’ah (Islamic law) which he spelled out in the concept of ‘Maqashid AlShari’ah’.46 The word Maqashid Al-Shariah is derived from the word ‘maqsud’ which means demands, intentions, or goals.
‘Shari’ah’ is a policy (wisdom) and the achievement of protection for everyone in the life of this world and the hereafter.
The meaning of Maqashid Al-Shariah in terms is ‘al-ma’ani al-lati syuri’at laha al-ahkam’ which means values which are the purpose of determining the law.
47 So Maqashid AlShariah is a study that concentrates on dissecting the essence behind both the AlQur’an and Sunnah religious texts, elaborating on the wisdom and purpose of Islamic laws that have been imposed on humanity.
In establishing Islamic law, this goal can be traced from the Al-Qur’an and Sunnah of the Prophet Muhammad, as a logical reason for the formulation of a law which is oriented to the benefit of mankind.48 Maqashid Al-Shariah have many objective in maslahah concept.
Maslahah means something that brings goodness (benefit, and so on), benefit, and useful.
Maslahah can also be interpreted as maintaining the objectives of Islamic law by rejecting disasters/damage/things that harm humans.
However, this research will study 47 M Hasbi Umar and Bahrul Ma’ani, ‘Urgensi Hak Dan Perlindungan Anak Dalam Perspektif Maqashid Al-Syariah’ (2018) 17(2) Al-Risalah 201 <http://ejournal.lp2m.uinjambi.ac.id/ojp/index.php/alrisalah/article/view/64>, 204.
48 Ahmad Yani Nasution, ‘Perlindungan Jiwa Anak Yatim Dalam Pergub Sumsel Nomor 6 Tahun 2017 Tentang Perlindungan Anak Yatim’ (2020) 3(1) Jurnal Madani: Ilmu Pengetahuan, Teknologi, dan Humaniora 104 <http://www.jurnalmadani.org/index.php/madani/ article/view/94>, 111.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 206 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… about five main objectives Maqashid AlSyariah, namely in the context of protecting religion, life, reason, descent, and wealth.49 To establish the law, the five main objectives are categorized into three levels, namely: 1).
Dharuriyyah, namely maintaining primary needs for human survival 50 , those primary needs are ‘Hifz Din’ or preserving religion, ‘Hifz Nafs’ or preserving the soul, ‘Hifz Aql’ or preserving reason, ‘Hifz Nasl’ or maintaining offspring, and ‘Hifz Mal’ or preserving property.
51 The five main objectives must be ensured to be safe for every human being.
So that it will create the nuances of a human being who is well-off and fulfilled his rights as a human being.
At the level of ‘dhauriyyah’ all that is primary must be realized for the upholding of human life.
If this fails to materialize then one’s worldly life will not be stable, experience chaos and damage can even lead to the emptiness of life, and in the hereafter will lose the happiness and enjoyment of heaven and return to his Lord in a state of loss52; 2).
Hajiyyah, which is the level of needs that are not basic or said to be secondary needs.
Needs that are ‘hajiyyah’ are not to eliminate his life except needs that can keep people from difficulties in their lives.
Although the needs of the ‘hajiyyah’ are not met will not threaten the survival of the five points mentioned earlier, but will only cause difficulties; and 3).
Tahsiniyyah, which is the level of tertiary needs, that is complementary needs.
The function is to support the improvement of one’s dignity in the 49 Dyah Ochtorina Susanti, ‘Perjanjan Kawin Sebagai Bentuk Perlindungan Hukum Bagi Pasangan Suami Istri (Perspektif Maqashid Syari’ah)’ (2018) 1(2) Ulul Albab: Jurnal Studi dan Penelitian Hukum Islam 1 <http://jurnal.unissula.ac.id/index.php/ua/article/v iew/2456>, 24.
50 Umar and Ma’ani, above n 47, 204.
51 Rizkiyah Hasanah, ‘Penetapan Dispensasi Kawin Akibat Hamil Pra-Nikah Ditinjau Dari Aspek community and before his Lord following obedience.53 Islamic teachings attach great importance to the maintenance of five things namely religion, reason, descent, and wealth.
Maintaining honor and protecting it from various threats means maintaining the existence of the honor of mankind.
It is very clear that the criminal sanction of sexual exploitation through the practice of Siri marriage in Article 88 of the Child Protection Act with the maximum penalty of imprisonment of 10 (ten) years and/or a maximum fine of IDR.
200,000,000 (two hundred million rupiahs) is considered to be relevant because it is considered that the benefit of the people, and the achievement of hereditary protection and honor, especially in children as victims of sexual exploitation through Siri marriage, which in Islam described in the Maqashid Al-Shariah protect such descent and honor are one of the five main pillars which must be protected.
The punishment is intended to provide a deterrent effect on the perpetrators, to bring good for the community as a whole and preventive functions against the possibility of repetition of the same type of crime, and repressive protection is intended to educate the offender to become a better person and aware of mistakes.
Siri marriages that have been mentioned are legal or legal according to Islamic law, will be highly invalid if they occur at an early age and the purpose is to obtain material benefits through the crime of Maqashid Syari’ah’ (2018) 1(1) Aktualita (Jurnal Hukum) 295 <https://ejournal.unisba.ac.id/index.php/aktualita/ article/view/3724>, 305.
52 Kurdi Fadal, ‘Pernikahan Di Bawah Umur Perspektif Maqashid Al-Qur’an’ (2016) 14(1) Jurnal Hukum Islam 65 <http://ejournal.iainpekalongan.ac.id/index.php/jhi/article/ view/673>, 79.
53 Nasution, above n 48, 111-112.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… | 207 commercial sexual exploitation.
Siri marriage to children is still considered to often experience impaired balance in thinking.
Children who are still in the period of looking for identity are considered not stable in acting so that it triggers conflict in the family.54 From the aspect of ‘Hifz Aql’, namely protection of reason, Siri marriage to children also has the potential to fail the education of the child concerned.
If marriages occur during school age, the threat of dropping out is huge.
Low education certainly has implications for the lack of knowledge for someone.
Therefore, early marriage can seize the opportunity to develop the potential of reason and knowledge.55 As mentioned earlier, Siri marriage to children who are not ready for sexual intercourse, pregnancy, and childbirth will be at risk of suffering from cancer, even impacting on the death of the mother.
Another risk is the potential for birth defects or the risk of infant death.
56 Of course, the existence of these risks threatens the realization of protection of the soul (Hifz Nafs) and threatens the realization of protection of offspring or ‘Hifz Nasl’.
Siri marriage to children is also considered to threaten the protection of religion or ‘Hifz Din’ aspects.
Making the best decisions requires thinking skills and maturity.
Therefore, married couples with young age (premature) will experience serious difficulties in living it so that it can disrupt the process of growth and development of children, which causes 54 Suhadi, Baidhowi and Cahya Wulandari, ‘Pencegahan Meningkatnya Angka Pernikahan Dini Dengan Inisiasi Pembentukan Kadarkum Di Dusun Cemanggal Desa Munding Kecamatan Bergas’ (2018) 1(1) Jurnal Pengabdian Hukum Indonesia (Indonesian Journal of Legal Community Engagement) JPHI 31 <https://journal.unnes.ac.id/sju/index.php/JPHI/ar ticle/view/27277>, 34.
55 Fadal, above n 52, 83-84. children to lack education in general, including religious education which also means threatening ‘Hifz Din’ for him.57 Siri marriage to children also results in limitations in accessing work that will force him to work unprofessionally because of his lack of ability to work (skills) and the knowledge he has.
Thus, underage marriages can threaten the protection of property or ‘Hifz Mal’ so that the low access will have an impact on the difficulties of the family economy.
When conditions are getting worse and economic access is getting heavier then gradually such conditions will lead to conditions of poverty, which are conditions that can cause the neglect of something very basic in family life.58 Based on the Maqashid Al-Shariah perspective described above, therefore, as an effort to protect minors against underage marriages must still refer to Article 26 paragraph (1) letter c of the Child Protection Law, then parents are obliged and responsible to prevent marriages from occurring at a young age.
In addition to the Child Protection Act, parents or other parties must comply with Article 7 of the Marriage Law which determines the age limit of marriage is 19 (nineteen) years old for women who have been equated with the minimum age of marriage for men.
Anyone who ignores this regulation deserves strict sanctions so that early marriage can be kept to a minimum in the community.
IV.
CONCLUSION 56 Muhamad Dani Somantri, Dahwadin Dahwadin and Faisal Faisal, ‘Analisa Hukum Menunda Kehamilan Perkawinan Usia Dini Perspektif Istihsan Sebuah Upaya Membangun Keluarga Berkualitas’ (2018) 3(2) Mahkamah : Jurnal Kajian Hukum Islam 203 <http://www.syekhnurjati.ac.id/jurnal/index.php/ mahkamah/article/view/3413>, 210.
57 Fadal, above n 52, 84.
58 Ibid, 85.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 208 | Disemadi, Al-Fatih, Yusro Indonesian Children Protection against Commercial Sexual Exploitation… It is known that the regulation on the prohibition of sexual exploitation in child marriages through the practice of Siri marriage is not strictly regulated in legislation, but its actions are prohibited if the aim is to obtain material benefits for parents or other parties who also marry children.
Based on Islamic law or religious perspectives Siri marriage is permissible if it meets the requirements or the harmony of marriage.
However, Siri marriage will be considered or used as a criminal offense if it is carried out against a child.
Protection of children against sexual exploitation through the practice of Siri marriage in a preventive and repressive manner.
Preventive child protection has been carried out by the State of Indonesia by ratifying the Convention on the Rights of the Child and issuing laws and regulations aimed at protecting children’s rights through the Child Protection Law and also through changing the age limit of child marriages to 19 years which are regulated in the Marriage Law.
So that perpetrators of commercial sexual exploitation of children through the practice of serial marriages do not escape from the snares of the law, these perpetrators can be held liable for criminal liability by applying Article 290 of the Criminal Code jo.
Article 56 of the Indonesian Criminal Code (KUHP), and Article 88 of the Child Protection Law with the threat of imprisonment for a maximum of 10 (ten) imprisonment year and / or a maximum fine of IDR.
200,000,000.00 (two hundred million rupiahs).
Marriage to children through a series of marriages from the perspective of Maqashid Al-Sharia is legal or legal but child marriage will only produce a portion of the purpose of marriage, while other objectives in Maqashid Al-Sharia tend to be ignored.
Siri marriage to children is said to be legal in Islamic law which the marriage will prevent from forbidden acts (adultery) and the marriage is intended to produce offspring or ‘Hifz Nasl’.
However, other goals in Maqashid AlSyariah are vulnerable to problems if psychological maturity and other skills are not yet possessed by children.
As a result, marriage is considered to be at risk of giving birth to various bad things in the family which can reduce the noble values which are the main mission of Islam.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.05 | 213 Legal Protection for Women Drivers in the Gig Economy: Evidence from Tulungagung, East Java Ahmad Zulfiyan Universitas Gadjah Mada, Indonesia Email: ahmad.zulfiyan@mail.ugm.ac.id Submitted : 2020-08-30 | Accepted : 2020-10-01 Abstract: In a patriarchal society, women tend to be vulnerable because of the existence of a hierarchical view that considers women in lower positions than men, including at work.
This study aims to find out how the legal protection for Grab women drivers in the gig economy.
The method used in this study is empirical-qualitative with a feminist approach.
Data were collected through in-depth interviews, literature studies, and the internet.
This study's data were analyzed using the Miles and Huberman model, which includes data reduction, display, and conclusion drawing.
This study showed that, in the gig economy, the relationship between Grab as an online transportation service provider and the drivers that they call 'Mitra' cannot be categorized as an employment relationship.
The implication is that drivers cannot obtain the rights stated in Act Number 13 of 2003 concerning Labor.
Women drivers face various legal protection constraints, such as limited job security, double burden, gender stereotypes, and sexual harassment.
Keywords: legal protection; women drivers; gig economy; tulungagung.
I.
INTRODUCTION In a patriarchal society where women are considered inferior to men, women, and gender discourses are often discussed.
This discourse mostly talks about gender inequality issues in the relationship between women and men.
Patriarchy is the main nomenclature of feminism as a philosophy.1 Patriarchy views women are not equal to men.
1 Candraningrum, Dewi, ‘Karier Patriarki’ (2014) Jurnal Perempuan, <https://www.jurnalperempuan.org/blog/dewicandraningrum-karier-patriarki> (accessed 18 June 2020) This inequality of relations has led to various gender injustices such as marginalization, subordination, gender stereotype, violence, and the double burden.2 Based on these injustices, feminists have tried to fight for women's rights as part of society.
Several feminist groups consider patriarchy as the main enemy of the struggle for women's rights.
However, patriarchy is 2 Mansour Fakih, Analisis Gender dan Transformasi Sosial, (Yogyakarta: Pustaka Pelajar, 2006) https://www.jurnalperempuan.org/blog/dewi-candraningrum-karier-patriarki https://www.jurnalperempuan.org/blog/dewi-candraningrum-karier-patriarki Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 214 | Zulfiyan Legal Protection for Women Drivers in the Gig Economy… essentially fluid because it is a construction.
This means that patriarchy can change.3 Thus, feminist sees this as an opportunity to fight for women's rights, including women’s participation in development.
Thus, feminist sees this as an opportunity to fight for women's rights, including women's participation in development.
Feminism views women's participation in development as necessary.
An increase in the number of women workers can increase their role in society and indicate that their participation is needed in the labor market.4 In traditional societies, working women are common, especially in the rural agricultural sector.5 There are many reasons why women decide to work, such as to help support their family economy or want to have self financial autonomy.6 Women's access to the labor market has increased but limited to the informal sector.
This condition is caused by a capitalist system that views women as a 'dairy cow' and the dichotomy of gender roles that position women only in the domestic sphere.7 One example of women working in the informal sector can be seen from their participation as online ride-hailing drivers.
Online ride-hailing is a product of technological developments in the gig economy.
3 Bennett, Judith M., History Matters: Patriarchy and the Challenge of Feminism, (Philadelphia: University of Pennsylvania Press, 2006) 4 Husni, Lalu & Ani Suryani, ‘Legal Protection for Women Domestic Workers Based on The International Convention’ (2018) 21(2) Journal of Legal, Ethical, and Legulatory, 1.
5 Tjaja, Ratna P., ‘Wanita Bekerja dan Implikasi Sosial,’ (2000) 20 Jurnal Naskah, 3 6 M.Th.
Handayani and Ni Wayan Putu Artini, ‘Kontribusi Pendapatan Ibu Rumah Tangga Pembuat Makanan Olahan terhadap Pendapatan Keluarga,’ (2009) 5(1) Jurnal PIRAMIDA.
7 Candraningrum, Dewi, ‘Karier Patriarki,’ (2014) Jurnal Perempuan, <https://www.jurnalperempuan.org/blog/dewicandraningrum-karier-patriarki> (accessed 18 June 2020) In the labor discourse, the gig economy is something new.
This era is marked by the use of technology in carrying out business practices.
The gig economy is an economic system that uses digital platforms to connect workers with clients.8 The platform serves to connect workers as 'sellers' and consumers as 'buyers' to interact.
9 Several companies included in the gig economy in Indonesia are the duopoly of giant ride-hailing services, Grab and Go-Jek.
This study focused on discussing Grab as one of the prominent online ride-hailing services in Indonesia.
However, the gig economy has brought new problems to labor, especially regarding the working relationship between companies and workers.
Academics such as Bornstein (2015) 10 and Healy, et.
al.
(2017) 11 are worried that the rise of the gig economy will create new imbalances in the relationship between companies and workers.
They said that this system gave companies the possibility to escape from various responsibilities for the rights workers should receive through various forms of disguise in the labor system.
Apart from these systemic problems, the gig economy also impacts the increasingly unequal position of men and women in their work.
In Grab's context, this has to do with masculinity in the world of 8 Brett Harris, ‘Uber, lyft, and regulating the sharing economy,’ (2017) 41(1)Seattle University Law Review, 275 9 Gerard Valenduc and Patricia Vendramin, ‘Work in the digital economy: sorting the old from the new’ (2016) Working Paper, 34 10 Bornstein, Josh, ‘The Great Uber Fairness Fallacy: As a Driver, How Do You Bargain with an App?’ The Guardian, 2015 <https://www.theguardian.com/technology/2015/ aug/24/uber-fairness-independent-contractorsemployees-rights> (accessed 1 June 2020) 11 Healy, Joshua and Et.
Al., ‘Should we take the gig economy seriously?’ (2017) Labour & Industry: a journal of the social and economic relations of work, DOI: 10.1080/10301763.2017.1377048, 10 https://www.jurnalperempuan.org/blog/dewi-candraningrum-karier-patriarki https://www.jurnalperempuan.org/blog/dewi-candraningrum-karier-patriarki https://www.theguardian.com/technology/2015/aug/24/uber-fairness-independent-contractors-employees-rights https://www.theguardian.com/technology/2015/aug/24/uber-fairness-independent-contractors-employees-rights https://www.theguardian.com/technology/2015/aug/24/uber-fairness-independent-contractors-employees-rights Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Zulfiyan Legal Protection for Women Drivers in the Gig Economy…| 215 labor, which sees women only suitable for working in the domestic sphere rather than as ride-hailing drivers.
In his report, Wargadiredja (2017) 12 found that there is still a lot of discrimination against women online ride-hailing drivers who are proven to receive more order cancellations by consumers due to sexism in society.
Thus, it is important to have legal protection for women online ride-hailing workers in Indonesia, considering that they have a higher vulnerability level than most drivers.
Indonesia has ratified The Convention of The Elimination of all Forms of Discrimination Against Women (CEDAW) through Law Number 7 of 1984 (concerning Ratification of the Convention on the Elimination of All Forms Discrimination Against Women).
It has a consequence for the government to provide legal protection for women workers from various forms of discrimination, including women drivers working in the gig economy.
Based on this background, this study examined to find out how legal protection for Grab women drivers.
This study took place in Tulungagung, Jawa Timur, where Grab is a monopoly online ride-hailing service since its appearance in mid-2017, considering that its biggest competitor, Go-Jek, has not yet penetrated the area.
II.
LEGAL MATERIALS AND METHODS For approximately five months from January to May 2020, the author conducted research concerning legal protection for Grab women drivers in Tulungagung, East Java.
12 Wargadiredja, Arzia T., ‘Penyebab Pengendara Ojek Perempuan Rutin Ditolak Penumpang’, VICE, 2017 <https://www.vice.com/id_id/article/xwawww/pe nyebab-pengendara-ojek-online-perempuan-rutinditolak-penumpang> (accessed 2 August 2020) This study used a qualitative descriptive method with a feminist and empirical approach.
Qualitative research can be used to understand social phenomena using the interaction process between the researcher and the phenomenon under study.
13 The feminist approach positions gender as a lens that focuses on seeing women's experiences as the center of knowledge building.
14 The field research was conducted in in-depth interviews and observation to six Grab women drivers in Tulungagung and secondary methods, including literature and internet studies.
Regarding legal material, this study used Act Number 13 of 2003 concerning Labor to analyze aspects of legal protection for Grab women drivers.
The authors also confirmed research-based findings to a formal figure coming from academics, Nabiyla Risfa Izzati (researcher and lecturer of Faculty of Law at Universitas Gadjah Mada), who has been researching labor law for several times.
The data analysis used refers to the Miles and Huberman model, which consists of three main data analysis processes, including data reduction, display, and conclusions drawing and verification.
III.
RESULT AND DISCUSSION Gig Economy Effect: Unrecognized Relationship between Grab and Drivers In the gig economy, Grab has disrupted the concept of conventional transportation service that has been known for a long time.
The word ‘gig’ is interpreted in various ways.
‘Gig’ first appeared in 1790, which means "small boat that bounces over and over".
In 13 Haris Herdiansyah, Metodologi Penelitian Kualitatif untuk Ilmu-Ilmu Sosial, (Jakarta: Salemba Humanika, 2010) 10-12 14 Sri W. Eddyono, Women’s Empowerment in Indonesia, A Poor Community in Jakarta, (New York: Routledge, 2019) 9 https://www.vice.com/id_id/article/xwawww/penyebab-pengendara-ojek-online-perempuan-rutin-ditolak-penumpang https://www.vice.com/id_id/article/xwawww/penyebab-pengendara-ojek-online-perempuan-rutin-ditolak-penumpang https://www.vice.com/id_id/article/xwawww/penyebab-pengendara-ojek-online-perempuan-rutin-ditolak-penumpang Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 216 | Zulfiyan Legal Protection for Women Drivers in the Gig Economy… 1908, the word ‘gig’ was interpreted as a job that had three characteristics; always moving, fast, and not permanent.15 The gig economy is a symbol of changing the concept of work in the digital technology era because it has the flexibility of work and short-term work contracts.16 In Indonesia, Grab is an online transportation service provider that plays in the duopoly market with Go-Jek.
The two companies have the largest market in Indonesia, which has successfully expanded in hundreds of cities and made them a giant ride-hailing service provider in Indonesia.
Grab first launched its service in 2012 in Malaysia under the name GrabTaxi.
One year later, Grab expanded to the Philippines, Thailand, and Singapore.
In 2014, Grab launched its GrabBike (motorbike-based rideshare) and GrabCar (car-based rideshare) services and began expanding to Indonesia and Vietnam.
In 2018, Grab acquired Uber in the Southeast Asian market, which also eliminated Uber in the Indonesian market.17 Grab also marked the rise of the gig economy in Indonesia.
Grab uses the rhetoric of freedom of work to convince their drivers to join and work hard.
Through Grab official website, Grab offers 3 flexibility to their drivers; freedom to manage income, pursue dreams, and socialize.
However, Yappy (2020) 18 criticizes this assumption.
In general, Yappy argued that the gig workers still have to set aside a portion of their income for third parties, making them less free to manage their income.
15 Shierly N. Yappy, ‘Pekerja Gig dan Ekonomi Gig’, Jawapos, 2020 https://www.jawapos.com/opini/12/01/2020/peker ja-gig-dan-ekonomi-gig/> (accessed 19 July 2020) 16 Woodcock, Jamie and Mark Graham, The Gig Economy; A Critical Introduction, (Polity Press: Cambridge, 2020) 17 Bharat, Shah S, ‘The Driver-Partner Dilemma: Structural Transformation in Indonesia’s On Demand Transportation Sector and Skills Traps The relationship between Grab and their driver is different from their relationship with their employees at the head office.
Grab chooses to use the term 'partner' to describe their driver.
Grab's relationship with the drivers is mediated by an application that allows drivers to make money through a series of order mechanisms from customers or clients.
This means that the company's relationship with the driver-partner is indirect, which allows the drivers to work flexibly.
Based on Act Number 13 of 2003 concerning Labor, a working relationship is defined as a relationship between a business owner and a worker based on a work agreement.
The law explains that work relations have three conditions that must be fulfilled; work, wages, and orders.
According to Nabiyla Risfa Izzati, an academic at the Faculty of Law-Universitas Gadjah Mada, Grab and the driver's relationship cannot be categorized as a working relationship because it does not meet these three requirements.19 Regarding wages and orders, Grab drivers do not get wages and orders from the company.
Wages and orders are given by consumers directly through the application.
The relationship between Grab and the driver is limited to an informal work relationship.
The International Labor Organization (ILO) defined informal employment as both inside and outside informal employment, including independent work in unregistered companies and unprotected work.20 This informalization of employment relations, although it looks among Go-Jek and Grab Driver Partners’ (2017), Unpublished, p. 4-5.
18 Shierly N. Yappy, above n.15.
19 Interview with Nabiyla Risfa Izzati, 26 February 2020 20 Martha A. Chen, ‘Rethinking the informal economy: linkages with the formal economy and the formal regulatory environment,’ DESA Working Paper No.
46, (New York: UN https://www.jawapos.com/opini/12/01/2020/pekerja-gig-dan-ekonomi-gig/ https://www.jawapos.com/opini/12/01/2020/pekerja-gig-dan-ekonomi-gig/ Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Zulfiyan Legal Protection for Women Drivers in the Gig Economy…| 217 like an expansion of employment opportunities, is the result of the inability of industry to create formal jobs.21 Although it looks tantalizing, this type of relationship is deceptive.
Drivers are treated as informal workers who receive limited job protection.
As a company, Grab can force drivers to continue to work hard.
On the other hand, Grab eliminates drivers' rights as workers and imposes costs and risks on them.22 Grab, as an online transportation service provider, controls the allocation of jobs through the various regulations they make.
However, the company is not directly responsible for what happens in the market created by the application platform they have initiated.
As a result, drivers are vulnerable to work without adequate protection.
Nabiyla Risfa Izzati argued that there are several implications when Grab cannot be categorized as a transportation company.
23 First, the rights and obligations stated in Act Number 13 of 2003 concerning Labor cannot be obtained by Grab drivers.
Second, it is difficult for the government to intervene if there are problems regarding work.
Consequently, there are many unfair policies, such as those stated in Grab's 'Terms of Service' or 'Term of Service' as follows: "Grab's failure to exercise any rights or provisions in terms of use will not be considered a waiver of these rights or conditions.
"24 Although the company frees women Grab drivers to work flexibly, Grab would determine certain criteria that they must meet Department of Economic and Social Affairs, 2007) 2-3 21 Marylin Carr and Martha Alter Chen, Globalization and the informal economy: how global trade and investment impact on the working poor (Geneva: International Labour Office, 2002) 5-6 22 Aulia Nastiti, ‘Cerita pengemudi menguak eksploitasi Gojek, Grab, dan Uber’, The to get work benefits.
Drivers who successfully make at least 130 trips in 30 days will benefit from a priority offer (See Table 1).
Table 3.
Additional Criteria and Benefits for Grab Drivers Category Criteria Benefits Member Have an active Grab driver application GrabBenefits offering Elite Minimum of 60 trips in the last 30 days An acceptance value of at least 70 percent in the last 30 days Minimum 4.6 star rating in the last 30 days Become a member for at least 30 days Priority offering of GrabBenefits Elite+ Minimum 120 trips in the last 30 days A minimum completion value of 70 percent in the last 30 days Minimum 4.7 star rating in the last 30 days Become an Elite partner for 30 days GrabBenefits priority offering Priority service at Grab Driver Center (GDC) Any other benefits (Source: Grab driver application, processed by author) Grab women drivers who fail to reach the specified target will not receive work benefits.
Even when they have upgraded their level, Grab women drivers who are unable to Conversation, 2017 <https://theconversation.com/amp/ceritapengemudi-menguak-eksploitasi-di-gojek-grabdan-uber-84599> (accessed 15 August 2020).
23 Interview with Nabiyla Risfa Izzati, 26 February 2020 24 Grab Term of Service, point 27.1 https://theconversation.com/amp/cerita-pengemudi-menguak-eksploitasi-di-gojek-grab-dan-uber-84599 https://theconversation.com/amp/cerita-pengemudi-menguak-eksploitasi-di-gojek-grab-dan-uber-84599 https://theconversation.com/amp/cerita-pengemudi-menguak-eksploitasi-di-gojek-grab-dan-uber-84599 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 218 | Zulfiyan Legal Protection for Women Drivers in the Gig Economy… maintain their performance will experience a downgrade next month.
Moreover, If the drivers' rating is below 5.0, they will be monitored, or worse, will not get any incentives.25 The implication is that women drivers of Grab who want to get benefits need to work harder.
This finding is strengthened by the explanation of the official Twitter account @GrabID in a direct message as follows: "If performance is not achieved and there is a decline, it is possible that the elite level will be lifted or down.
"26 The relationship that underlies Grab and its drivers is a contractual partnership relation.
Indonesia recognizes the Civil Code that regulates in general terms of contractual partnership agreements, to be precise in Article 1338 in conjunction with Article 1320.
In particular, Articles 1618 to 1641 regulate the partnership relations as a legal relationship between partners by including certain capitals, as stated in articles 1618 and 1619 below: "A civil company is an agreement between two or more people, who promise to include something in the company with the intention that the profits derived from the company are shared between them.
"27 "All civil companies must be shown something lawful and held for the common benefit of their members.
Each member is obliged to put money, goods or business into the company.
"28 The relationship between Grab and the drivers is full of power relations that place drivers in a vulnerable position.
Grab drivers are in exploitative relationships without any guarantee of safety.
29 On the other hand, 25 Interview with AW, 29 January 2020 26 Direct Message (DM) Twitter @GrabID, 31 March 2020 27 Civil Code, article 1618 28 Civil Code, article 1618 Grab drivers are forced to do their best work.
Grab drivers must provide the best service to passengers.
If not, they will get sanctions ranging from mild to severe, even termination of the partnership.30 Although it looks tempting because of the flexibility of work, the partnership between Grab and the driver is actually just a mandatory fun.
Mollick & Rothbard (2014) call this kind of phenomenon gamification of work.
Their work is fully 'forced' by employers in the work environment to achieve the employer's goals.
The implication is, although drivers are required to compete to show their best performance to get work bonuses, they do not get guaranteed job security and their rights as workers as regulated by Act Number 13 of 2003 concerning Labor.
If they cannot show their best performance according to company standards, they will not get work benefits and even get sanctions.
Gamification of work in the world of work is a way for companies to escape their responsibilities as employers.
I argue that increasing women's participation in work depends on how much access is given to them, both access to contributions and protection.
If all that is fulfilled is access only, then protection will not be maximized, and work constraints will arise.
Legal Protection Constrains Obtained by Grab Women Drivers Grab drivers are at work vulnerability because their relationship with Grab cannot be categorized as an employment relationship.
Apart from not getting a minimum wage, the right to social security, and the right to organize an association, Grab 29 Interview with Nabiyla Risfa Izzati, 26 February 2020 30 Code of Conduct (CoC) of Grab drivers mentioned on Grab official website Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Zulfiyan Legal Protection for Women Drivers in the Gig Economy…| 219 drivers also do not receive protection related to work safety.
In the context of women drivers, this vulnerability is increasing because women are still considered to be lower than men.
31 Based on the research finding, there are four main constraints regarding limited legal protection obtained Grab women drivers in Tulungagung.
Firstly, Grab women drivers have low job security.
From an employee perspective, the relationship between Grab and women drivers can be said to be exploitative.
Apart from not being included in the category of work relations according to Act Number 13 of 2003 concerning Labor, there are almost no regulations that specifically regulate the rights and obligations of informal relations like this in Indonesia.
However, the Ministry of Transportation through the Regulation of the Minister of Transportation of the Republic of Indonesia Number PM 12 of 2019 concerning Safety Protection of Motorcycle Users Used for Public Interest regulates the certainty of drivers to get social security, as follows: "Certainty of obtaining employment social security protection and health social security in accordance with the provisions of laws and regulations.
"32 Referring to this regulation, women Grab drivers should receive social and health insurance from the company.
Based on insurance-related guidelines on the official Grab website, Grab women drivers get work accident insurance from Salvus, which is post-incident.
In order to make an insurance claim, the driver's application must be active 31 Joupy G. Z. Mambu, ‘Aspek Perlindungan Hukum Terhadap Pekerja Wanita (Menurut UndangUndang Nomor 13 Tahun 2003)’ (2010) 2(2) de Jure: Jurnal Syariah dan Hukum, 150 32 Regulation of the Minister of Transportation of the Republic of Indonesia Number PM 12 of 2019 concerning Safety Protection of Motorcycle Users Used for Public Interest, chapter V, article 16, point 3i 33 Interview with AY, 3 February 2020 (on the bit) at the time of the incident.
This insurance is limited and does not accommodate work accidents when Grab women drivers work without turning on the application.
Even though there are several Grab women drivers who continue to take passengers even without the application running.33 Apart from Salvus, Grab women drivers have social security in the form of BPJS Ketenagakerjaan, which is independently managed because Grab does not accommodate the collective registration of Grab drivers to be registered under the BPJS.
34 In fact, the Ministry of Transportation has asked online ride-hailing companies, including Grab, to provide health protection to their drivers through BPJS.
35 This finding shows that Grab has not implemented the goverment’s appeal regarding the provision of job security through the BPJS for the drivers.
The second constraint faced by women drivers is the double burden of work.
It is caused by the dichotomy of gender roles where women are considered only responsible for domestic affairs.
In the context of working women, this has a consequence that women have to work longer.
The concept of work like this is perpetuated by society, culturally and structurally.
36 Women tend to view childcare and family as the most important.
This is different from men as husbands who are seen as the main breadwinner, so that they have less 34 Interview with AW, 29 January 2020 35 Ariefana, Pebriansyah and Achmad Fauzi, ‘Aturan Baru, Kemenhub Minta Grab dan Go-Jek Kasih BPJS ke Driver,’ Suara.com, 2019, <https://www.suara.com/bisnis/2019/03/25/15063 6/aturan-baru-kemenhub-minta-grab-dan-go-jekkasih-bpjs-ke-driver> (accessed 15 August 2020).
36 Mansour Fakih, Analisis Gender dan Transformasi Sosial, (Yogyakarta: Pustaka Pelajar, 2006) https://www.suara.com/bisnis/2019/03/25/150636/aturan-baru-kemenhub-minta-grab-dan-go-jek-kasih-bpjs-ke-driver https://www.suara.com/bisnis/2019/03/25/150636/aturan-baru-kemenhub-minta-grab-dan-go-jek-kasih-bpjs-ke-driver https://www.suara.com/bisnis/2019/03/25/150636/aturan-baru-kemenhub-minta-grab-dan-go-jek-kasih-bpjs-ke-driver Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 220 | Zulfiyan Legal Protection for Women Drivers in the Gig Economy… dedication to domestic work.37 Even though their job as a Grab driver is flexible, women drivers still experience trade-offs between work and family.
Their husband sometimes prohibits them from working at certain times because they are considered unsafe.
This makes it difficult for them to work fully.38 Besides taking care of children, women Grab drivers are also faced with more complex matters, such as when a family member is sick.
Grab women drivers are willing not to work for a long time until family members recover.
They have to go back and forth from the hospital to take care of a family member who is sick.
The drivers will back to work after finishing all domestic affairs.39 Double burden is one of the crucial issues in working women’s discourse — double burden experienced by women as another form of gender discrimination.
When men are considered to have only responsibility for public work (paid work), women bear two burdens at once: paid work and unpaid care work (UCW) in the domestic sphere.
There is a relationship between the double burden experienced by women workers and capitalism.
UCW actually has a big share in world development until now.40 Unfortunately, the double burden is often underestimated and benefits capitalism and harms working women.
Even though women's participation in the labor market has increased, it does not necessarily increase men's participation in domestic work.
The important thing that needs to be underlined in this issue is the relationship between double burden and legal protection for women workers.
At first glance, the double burden is one form of legal protection 37 Hunt, Abigail, and Et Al., Women in the gig economy Paid work, care and flexibility in Kenya and South Africa, (2019) ODI Report, p. 14-15.
38 Interview with EM, 4 February 2020 constraints against women.
However, the author argues that the double burden is the root of the problem of legal protection for women workers.
The problem has an impact on the making of labor policies related to women workers.
On Grab women drivers, the paid work they do is disrupted by the double burden.
Apart from working in the public sector, Grab drivers are still busy with UCW in the domestic sphere.
From a legal perspective, women's double burden has not been accommodated in the existing legal regulations in Indonesia.
The government has not ratified ILO Convention Number 189 of 2011 concerning Decent Work for Domestic Workers.
As a result, legal protection for women who work in the domestic sector is not fulfilled.
Besides, Law Number 1 of 1974 concerning Marriage is inconsistent in regulating these problems.
In article 31 point (1), this regulation states that husband and wife have an equal position and have the same rights in household life and social life.
However, From a legal perspective, women's double burden has not been accommodated in Indonesia's existing legal regulations.
Article 34 point (2) states that the wife has the obligation to manage household affairs properly.
This inconsistency indicates that the government has not fully paid attention to women workers' double burden.
Three strategies that can be implemented to create equality in UCW: recognize, reduce, and redistribute.
Recognition strategy is used to see how much opportunity women lose because of doing UCW.
Furthermore, the reduce strategy is carried out to reduce women's lost opportunities due to doing UCW.
Finally, the 39 Interview with AW, 29 January 2020 40 Silvia Federici, Revolution at Point Zero: Housework, Reproduction, and Feminist Struggle, (California: PM Press, 2017) Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Zulfiyan Legal Protection for Women Drivers in the Gig Economy…| 221 redistribute strategy aims to redistribute the role of work in UCW not only for women, but also for men.41 Mulia (2019)42 criticizes the analogy of the relationship between men and women as captains and crew.
Mulia argued that it would be more suitable if the relationship between men and women was analogous to a pilot and co-pilot having an egalitarian family position.
The third constraint is gender stereotype.
In general, all informants admitted to having received gender stereotypes from the community, especially their neighbors.
The label affixed to the Grab women driver makes them seen as a person who is always under suspicion when rarely at home.
Many questions doubted the role of women in the world of work outside the home.
Several informant told me that they get stereotypical commentaries from others regarding their job as Grab drivers.
Many people think that the job of a driver is a job for men, not women.
43 Besides that, there was an informant who was suspected by her neighbors of having an affair with another men because she often came home at night after working all day.44 Society tends to blame women when sexual harassment occurs instead of placing them as victims.
This condition relates to the fourth constraint experienced by Grab women drivers: sexual harassment.
Sexual harassment is a form of violence that is most often experienced by women in society.
Sexual harassment occurs because of unequal power relations and a legal system that is not yet conducive to upholding justice and equality.
The forms of sexual harassment 41 Diane Elson, ‘Recognize, Reduce, and Redistribute Unpaid Care Work: How to Close the Gender Gap,’ (2017) 26(2) New Labor Forum, 5559.
42 Siti Musdah Mulia, Ensiklopedia Mulimah Reformis, Pokok-Pokok Pemikiran untuk experienced by Grab women drivers vary.
The majority of the harassment was done by customers or men who saw Grab women drivers at work, such as catcall and any other verbal harassment.
45 Unfortunately, legal protections for workers who experience harassment in the workplace are not accommodated.
In fact, the ILO has made regulations related to this through ILO Convention No.
190 of 2019 concerning the Elimination of Violence and Harassment in the World of Work.
However, Indonesia has not yet ratified the convention.
Legal Dilemmas in the Relationship between Grab and Women Drivers Apart from work flexibility, Grab also entices its drivers to be their own boss without any orders from their employers.
This gives the impression that the two parties have an equal position.
Even so, Grab women drivers have diverse thoughts in this regard.
The results of this study explain that Grab women drivers, on the one hand, think that work flexibility can make it easier for them to do other things outside of their work, such as taking care of their family, spending time with children, and enjoying free time.46 On the other hand, there are women Grab drivers who wish for a permanent job with consideration of guaranteed income and job security.
Work flexibility, although it makes it easier to do other activities, is considered not to have good prospects in terms of income and job security.
Grab women drivers to assess this type of work as having a high risk and allows them to earn an uncertain income.47 Reinterpretasi dan Aksi, (Jakarta: Dian Rakyat, 2019) 68 43 Interview with TS, 5 February 2020 44 Interview with DW, 29 January 2020 45 Interview with AW, 29 January 2020 46 Interview with AW, 29 January 2020 47 Interview with EM, 4 February 2020 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 222 | Zulfiyan Legal Protection for Women Drivers in the Gig Economy… Although having the same background, housewives who have children, the diversity of thoughts of women Grab drivers regarding whether they prefer to be flexible workers or permanent workers is interesting.
Each of these desires has a consequence in which drivers who agree with flexible work pay more attention to the factor of comfort and time flexibility.
Meanwhile, drivers who agree with permanent work see safety and job security as essential factors.
IV.
CONCLUSION The company's relationship with Grab women drivers cannot be categorized as an employment relationship under Act Number 13 of 2003 concerning Labor.
The implication is that the rights and obligations stated in the regulation cannot be imposed on companies or women drivers.
It is difficult for the government to intervene because there is no regulation that regulates it.
The informal relationship with the rhetoric of flexible and equal employment that occurs between companies and Grab women drivers has resulted in various legal protection constraints such as a lack of job security, double burden, gender stereotypes from society, and violence in the form of sexual harassment.
The government needs to provide legal regulation that specifically regulates legal protection for online ride-hailing drivers, particularly for women drivers.
Also, the government needs to ratify ILO Convention No.
190 of 2019 concerning the Elimination of Violence and Harassment in the World of Work to protect workers from various forms of violence and harassment and ILO Convention Number 189 of 2011 concerning Decent Work for Domestic Workers to protect women who work in the domestic sector.
V. ACKNOWLEDGEMENT I gratefully thank Sri Wiyanti Eddyono, S.H.
LL.M.
(HR) Ph.D. (lecturer and the Director of the Law, Gender and Society Research Centre, Faculty of Law, Universitas Gadjah Mada) and Prof. Dr. Sri Rum Giyarsih, M.Si.
(lecturer of Faculty of Geography, Universitas Gadjah Mada) for the comments on the manuscript.
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84 CORPORATE SOCIAL RESPONSIBILITY IN INTERNATIONAL ECONOMIC LAW PERSPECTIVE Nyoman Indra Juarsa 1) and Yanuarda Yudo Persian 2) 1) Post Graduate Student, Faculty of Law, Padjajaran University Email: humbler1992@yahoo.com, nyomanindrajuarsa@yahoo.com 2) Junior lawyer at Dyah Ersita and Partners Law Firm, Jakarta Email: yanuardayudopersian@yahoo.com ABSTRACT Multinational Corporation/MNC has a significant role to play in promoting sustainable development and alleviating global poverty.
As a subject of International Economic Law, MNC has the rights to take profit from its business activities.
In addition, it also has responsibility to protect sustainable environment through CSR program.
This paper focuses on what more specific instrument sets CSR in international economic law, and how CSR can be implemented by the MNC.
International (public) law has been providing instruments to regulate MNC activities related to CSR, those are: OECD Guidelines, ILO Declaration and UN Global Compact.
However, they are only ―soft laws‖ that still require more specific instrument to be implemented.
As a continuation of the general rules of public international CSR Instruments, the World Bank Group through the IFC and MIGA sets standard performances that must be met by every corporation that will get finance (IFC) or guarantee (MIGA).
Standard Performances are described further in the environmental, health and safety guidelines that are essential for every company to provide protection to stakeholders related to business activities including workers, communities, and environment.
As the method of evaluation and enforcement, IFC and MIGA have institution namely Compliance Advisor Ombudsman serving to receive reports from the public, investigate and provide notification to the company activities that negatively affect the society.
Ultimately CSR is not only seen as philanthropy (mandatory) but also as guidelines and a code of conduct to be followed by the corporation in carrying out any business.
Key words: mandatory norm, obligatory norm, CSR I.
INTRODUCTION Multinational Corporation/MNC has a significant role in promoting sustainable development and alleviating global poverty.
MNC enters to country through direct or indirect investment.
MNC develops very rapidly along with economic liberalization system that allows big enterprises to conduct business expansion across the country freely.
MNC is defined as an entity that crosses national boundaries.
MNC has special characteristics, which is usually comprises of interconnected companies or mailto:humbler1992@yahoo.com mailto:nyomanindrajuarsa@yahoo.com mailto:yanuardayudopersian@yahoo.com 85 other entities established in more than one country and they may coordinate their operations in various ways.
While one or more of these entities may be able to exercise a significant influence over the activities of others, their degree of autonomy within the enterprise may vary widely from one multinational enterprise to another.
Ownership may be private, state or mixed 1 .
Within the scope of the civil law, MNC is categorized as recht persoon, which recognized as a subject of law by having legal personality.
Legal personality includes abilities and accessibility before the law, which set forth in the deed.
As a civil entity MNC position cannot be doubted.
It becomes a strong, structured and crossborder entity (in the context of the owners and management).
However, the legal position of MNC as subject of international law 2 is still debatable.
Some argument puts MNC as a subject of international law and considers that the MNC is the development of the individual term.
The subject of international law is divided into two main categories, 1 OECD Guidelines, Part I, p. 12 2 In this context, the terms of International Law, refers to International Public Law.
It is based on the command agreement in using International Law term in public aspect, not in private aspect.
See: Mochtar Kusumaatmadja, Pengantar Hukum Internasional (Introduction of International Law), Bandung: Alumni, 2010, p. 1 State and non-State.
The state is a political and legal entity recognized by the international community 3 .
Non-state subject includes International Organizations, Belligerent and Individual.
The use of individual terms can be understood also as a group or entities consist of individual subject (natuurlijke persoon).
Therefore, granting the rights and obligations as well as the treatment of MNC in front of international law is equated with the individual treatment.
In the other hand, the opposite argument states that MNC does not have rights and obligations under international law; it is only subjects of national law and transnational law 4 .
Wolfgang Friedman stated that the expansion of subject international law is subversive and cannot be maintained.
It will even negate the separation between public and private sector in national law.
Furthermore, Wolfgang offers that MNC needs to have legal status as well as international organizations, but in limited granting.
The MNCs subjectivity will be limited and temporary (ad hoc) as far 3 Montevideo Convention Rights and Duties of States 1933.
Article 1: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
4 Antonio Cassese, International law in Devided World, 1986, p. 78-79 86 as their activities regulated by the norms of Public International Law 5 .
In addition, there are two concerns of MNC recognition as subjects of international law.
First, foreign corporations will be easier to intervene in political and economic policy of host country.
Second, foreign corporations can demand excessive diplomatic protection to the home state, especially if other foreigners dominate the corporate stock 6 .
From the theoretical debates above, it can be briefly concluded that the corporation is considered to have the status of a subject of international law in limited meaning.
The status is different from the other subjects of international law, such as states and international organizations.
The limited nature lies in a field that is run by the MNC, that is the economy.
Asif H. Qureshi argues that the MNC has a legal personality in the international economic law as well as the individual.
It has a personality which entitles to operate on the international plane.
The ranges of entitlement are varied and depend on the kind of the subject involved.
Thus entitlements involve for example: being able to enter into international 5 Wolfgang Friedman in Antonio cassese, Ibid, p. 103 6 Andrew Clapham, Human Rights Obligations of Non-State Actor, New York: Oxford University Press, 2006, p. 78 economic agreements; being able to enforce international economic agreements; becoming beneficiaries of international economic agreements; and being able to participate in dispute settlement mechanisms involving economic rights.
7 The subject of international law is an entity capable of possessing international rights and duties and having the capacity to maintain its rights by bringing international claims 8 .
As a subject of international economic law, MNC has the legal rights and obligations set out in international economic law.
The major rights of MNC include running their business safely and can enjoy the benefits of its business.
The primary obligation of MNC is keeping the "good relationship" with the company's stakeholders.
Based on the Stakeholder Theory, there are two types of stakeholders, namely: primary stakeholders (employees/workers, consumers, investors, and suppliers), and additional stakeholders outside the main stakeholders.
9 7 Asif H. Qureshi, International Economic Law, Manchester: Sweet and Maxwell, 1999, h. 27 8 Ian Brownlee, Principles of Public International Law, New York: Oxford University Press, 2008, p. 57 9 A.
B. Carollin Ilias Bantekas, Corporate Social Responsibility in International Law, Boston University International Law Journal, Volume 22:309, 2004, p. 311 87 The MNCs responsibility can be done by implementing Corporate Social Responsibility/CSR.
There are probably as many understandings of corporate social responsibility as there are stakeholders involved in discussions on the issue.
At its most basic level, corporate responsibility is concerned with the relationships that a company maintains with its shareholders, clients, suppliers, creditors and employees, as well as with the communities in which it operates 10 .
Essentially, CSR recognizes that corporations are not only responsible to their shareholders, but owe or should owe, particular duties to person or communities directly or indirectly effected their operations.
From very broad CSR objectives, which include all stakeholders, CSR can also be implemented in various forms.
The implementation of CSR refers to three things: human rights, labor rights, environmental rights and sustainable development, those are called as the core of CSR.
To run the CSR, MNC makes voluntary self-regulation tailored to the needs of corporations and the environment.
However, in implementing CSR, MNCs 10 United Nation, Chapter XX, p. 251 http://www.un.org/esa/socdev/rwss/docs/2001/20%2 0Corporate%20social%20responsibilities.pdf should be in line with the rule of law and code of conduct generally.
CSR has voluntary characteristic which applications are based on the abilities and capabilities of the MNC in question.
CSR can be seen as a form of responsibility that the implementation can be forced.
Some international legal norms have given signal the MNC obligation to implement CSR, such as the OECD Guidelines, the ILO Declaration and the UN Global Compact.
However, they are only "soft laws" that require still more specific instrument to be implemented.
As a continuation of the general rules of public international CSR Instruments, the World Bank Group through the International Finance Cooperation/IFC and Multilateral Investment Guarantee Agency/MIGA sets standard performances that must be met by every corporation that will get finance (IFC) or guarantee (MIGA).
Standard Performances are described further in the environmental, health and safety guidelines that are essential for every company to provide protection to stakeholders related to business activities including workers, communities, and environment.
This paper aims to explore the range of particular CSR principles under IFC and MIGA regulations and the model of 88 implementations, enforcement, and monitoring.
Finally, it examines the viability and success of such measures and the extralegal parameters of MNC adherence to norms that may be seen as irrelevant or nonbinding because of their voluntary character.
II.
METHODE OF RESEARCH This study uses normative juridical method, with the starting point of research on international economic law instruments or legal instrument regulating CSR.
The approach that is used in this study research is conceptual approach, to understand the concepts of CSR, as well as deal with the concept CSR as voluntary and mandatory norm.
Legal materials used are all the rules relating to CSR in international economic law.
The Materials are then analyzed descriptively with the deduction method.
With this technique, researchers analyze the rules, doctrines and theories about CSR, then pulled more specifically on the implementation model of CSR.
III.
RESULT AND DISCUSSION A.
Sources of Corporate Social Responsibility CSR is related to corporation behavior in maintaining relationship with the stakeholder.
Originally, CSR only considered as voluntary norm 11 , but it develops into more concrete responsible form since the growing awareness of international community to increase the voluntary status.
Various international organizations have given attention to the behavior of transnational corporations through various guidelines, code of conduct, resolutions, declarations, principles, reports and other documents.
Various instruments contain arrangements that are intended to control the behavior of transnational corporations.
Those instruments lay the responsibility of corporation in various actions.
We identify two forms of legal source of CSR; those are the general rule contained in international law (public) and more detailed rules contained in the IFC and MIGA.
Each will be examined in turn.
1.
Public International CSR Instruments The first multilateral effort to produce MNC‘s code of conduct or guidelines has been initiated by ECOSOC.
ECOSOC established The Commission on 11 The 2001 European Commission Green Paper on CSR defines this Responsibility as ―a concept whereby companies decide voluntary to contribute to a better society and a clearer environment‖.
See Promoting a European Framework for Corporate Social Responsibility: Green Paper.
http://europa.eu.int/comm/employment_social/socdial/csr/greenpaper_en.pdf (hereinafter Green Paper) http://europa.eu.int/comm/employment_social/soc-dial/csr/greenpaper_en.pdf%20(hereinafter http://europa.eu.int/comm/employment_social/soc-dial/csr/greenpaper_en.pdf%20(hereinafter 89 Transnational Corporation (UNCTC) that produced The Draft UN Code of Conduct on Transnational Corporation, OECD Guidelines for Multinational Corporation, UN Global Compact, and Human Rights Principles and Responsibilities for Transnational Corporation and Other Business Enterprises.
The most public international CSR instruments are the OECD Guidelines, the UN Global Compact and the 1998 ILO Declaration on Fundamental Principles and Rights at Work.Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises OECD is an organization established in 1960.
This organization was established in order as a reaction to transnational crime acts that illegal and not ethically in how to make recommendations or guidelines that addressed to a transnational corporation.
OECD Guidelines adopted first in 1976 and amended periodically, last amendment is in 2011.
The Guidelines taken into legal by 30 OECD‘s state parties and accepted by 8 non-state parties 12 , thus, OECD Guidelines is addressed to all corporations that operates or derive from the 38 state parties.
However, OECD Guidelines 12 www.oecd.org is also can be prevail in other country outside the state parties.
The guidelines implementation is monitored by flexible complaint mechanisms, in contrast to the litigation mechanism or any other legal complaints.
Unlike other ―soft law‖ that is addressed by particular bodies of international organization to their member state, the OECD guidelines are recommendations addressed by governments to MNC.
Although they are not legally binding on MNC, OECD member states have agreed to adhere to the guidelines and encourage their companies to observe them wherever they operate 13 .
OECD Secretary General clearly states that the purpose of OECD is to provide guidelines for the government on setting standards of good corporate conduct.
In general policy, OECD conducts enterprises should take established policies in the countries in which they operate fully into account, and consider the views of other stakeholders.
In this regard: 14 Enterprises should: 1) Contribute to economic, environmental and social progress with a view to achieving sustainable development.
13 See OECD Guidelines, Foreword, Paragraph 1 14 General Policies of OECD Guidelines for Multinational Enterprises 2011, 90 2) Respect the internationally recognized human rights of those affected by their activities.
3) Encourage local capacity building through close cooperation with the local community, including business interests, as well as developing the enterprise‘s activities in domestic and foreign markets, consistent with the need for sound commercial practice.
4) Encourage human capital formation, particularly by creating employment opportunities and facilitating training opportunities for employees.
5) Refrain from seeking or accepting exemptions not contemplated in the statutory or regulatory framework related to human rights, environmental, health, safety, labor, taxation, financial incentives, or other issues.
6) Support and uphold good corporate governance principles and develop and apply good corporate governance practices, including throughout enterprise groups.
7) Develop and apply effective self-regulatory practices and management systems that foster a relationship of confidence and mutual trust between enterprises and the societies in which they operate.
8) Promote awareness of and compliance by workers employed by multinational enterprises with respect to company policies through appropriate dissemination of these policies, including through training programs.
9) Refrain from discriminatory or disciplinary action against workers who make bona fide reports to management or, as appropriate, to the competent public authorities, on practices that contravene the law, the Guidelines or the enterprise‘s policies.
10) Carry out risk-based due diligence, for example by incorporating it into their enterprise risk management systems, to identify, prevent and mitigate actual and potential adverse impacts as described in paragraphs 11 and 12, and account for how these impacts are addressed.
The nature and extent of due diligence depend on the circumstances of a particular situation.
91 11) Avoid causing or contributing to adverse impacts on matters covered by the Guidelines, through their own activities, and address such impacts when they occur.
12) Seek to prevent or mitigate an adverse impact where they have not contributed to that impact, when the impact is nevertheless directly linked to their operations, products or services by a business relationship.
This is not intended to shift responsibility from the entity causing an adverse impact to the enterprise with which it has a business relationship.
13) In addition to addressing adverse impacts in relation to matters covered by the Guidelines, encourage, where practicable, business partners, including suppliers and sub-contractors, to apply principles of responsible business conduct compatible with the Guidelines.
14) Engage with relevant stakeholders in order to provide meaningful opportunities for their views to be taken into account in relation to planning and decision making for projects or other activities that may significantly impact local communities.
15) Abstain from any improper involvement in local political activities.
Enterprises are encouraged to: 1) Support, as appropriate to their circumstances, cooperative efforts in the appropriate forum to promote Internet Freedom through respect of freedom of expression, assembly and association online.
2) Engage in or support, where appropriate, private or multistakeholder initiatives and social dialogue on responsible supply chain management while ensuring that these initiatives take due account of their social and economic effects on developing countries and of existing internationally recognized standards.
The Guidelines recommends that enterprises apply good corporate governance practices drawn from the OECD Principles of Corporate Governance.
The Principles call for the protection and facilitation of the exercise of shareholder rights, including the equitable treatment of shareholders.
Enterprise should recognize the rights of stakeholders established by law or through mutual agreements and encourage active co92 operation with stakeholders in creating wealth, jobs, and the sustainability of financially sound enterprises.
15 a) United Nation Global Compact In the World Economic Forum held in January 1999 in Davos, Switzerland, UN Secretary-General recommended the leader of the business world to formulate and issue the Global Compact, both with regard to the practice of the corporation as individual or by developing public policy.
Global Compact contains 10 principles that must be adhered to by the corporation.
The UN Global Compact's ten principles in the areas of human rights, labor, the environment and anti-corruption enjoy universal consensus and are derived from: The Universal Declaration of Human Rights; The International Labor Organization's Declaration on Fundamental Principles and Rights at Work; The Rio Declaration on Environment and Development; The United Nations Convention Against Corruption.
The UN Global Compact asks companies to embrace, support and enact, within their sphere of influence, a set of core values in the areas of 15 Commentary on General Policies, OECG Guidelines 2011 human rights, labor standards, the environment and anti-corruption: 16 a.
Human Rights Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and Principle 2: make sure that they are not complicit in human rights abuses.
b.
Labor Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; Principle 4: the elimination of all forms of forced and compulsory labor; Principle 5: the effective abolition of child labor; and Principle 6: the elimination of discrimination in respect of employment and occupation.
c. Environment Principle 7: Businesses should support a precautionary approach to environmental challenges; Principle 8: undertake initiatives to promote greater environmental responsibility; and Principle 9: encourage the development and diffusion of environmentally friendly technologies.
d. Anti-Corruption Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery.
The principles mentioned above directly leads to points CSR.
UN Global Compact describes corporate responsibility 16 The Ten Principles of UN Global Compact, www.unglobalcompact.org http://www.un.org/Overview/rights.html http://www.un.org/Overview/rights.html http://www.ilo.org/public/english/standards/decl/declaration/text/ http://www.ilo.org/public/english/standards/decl/declaration/text/ http://www.ilo.org/public/english/standards/decl/declaration/text/ http://www.un.org/esa/sustdev/agenda21.htm http://www.un.org/esa/sustdev/agenda21.htm http://www.un.org/esa/sustdev/agenda21.htm http://www.unodc.org/unodc/en/treaties/CAC/index.html http://www.unodc.org/unodc/en/treaties/CAC/index.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle1.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/Principle2.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle3.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/Principle4.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle5.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle6.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle7.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle8.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle9.html http://www.unglobalcompact.org/AboutTheGC/TheTenPrinciples/principle10.html 93 in running the business, including social responsibility.
However, as with OECD guidelines, the principles are only as voluntary norm submitted to the respective enterprise policies.
b) ILO Declaration Adopted in 1998, the ILO Declaration on Fundamental Principles and Rights at Work is an expression of commitment by governments, employers' and workers' organizations to uphold basic human values that are vital to our social and economic lives.
These principles and rights are: 1) freedom of association and the effective recognition of the right to collective bargaining; 2) The elimination of all forms of forced or compulsory labor; 3) The effective abolition of child labor; 4) The elimination of discrimination in respect of employment and occupation.
A further recognition of the importance of these principles and rights has been their incorporation into the Global Compact, an initiative of the United Nations Secretary General.
Like the ILO Declaration, the Global Compact is a platform designed to promote learning and good practices of businesses, based on universal principles.
Despite all the instrument has been set on CSR, the voluntary character is still strongly attached.
This is evident from the lack of implementation and enforcement mechanisms of CSR by MNCs.
However, they are only "soft laws" that require still more the specific instrument to be implemented.
2. International Economic Law At the bottom, IEL‘s legal sources are not really has differences with Public International Law.
But, there are additional legal sources which are code of conduct and guidelines.
IEL in broader meaning includes the economic relationship that public in character (policy) and private (economic activities practice).
IEL emphasized its study to the world economic institutions that known as the three pillars of world economic, which are WBG, IMF and WTO, that has influence the world economic system.
Thereby, is necessary to concern the IEL legal base that relevance with those economic institutions that specifically regulates the CSR implementation by MNC.
94 As a continuation of the general rules of public international CSR Instruments, the World Bank Group through the IFC and MIGA sets standard performances that must be met by every corporation that will get finance (IFC) or guarantee (MIGA).
Standard Performances are described further in the environmental, health and safety guidelines that essential for every company to provide protection to stakeholders related to business activities including workers, communities, and environment.
a) IFC’s Policy on Social and Environmental Sustainability IFC, a member of the World Bank group, is the largest global development institution focused on the private sector in developing countries.
IFC creates opportunity for people to escape poverty and improve their lives.
It helps developing countries achieve sustainable growth by financing investment, providing advisory services to businesses and governments, and mobilizing capital in the international financial markets 17 .
In giving financial assistance, IFC sets standard performances that must be met by every client (corporation) in sustainability framework 17 IFC overview, www.ifc.org/aboutifc through IFC‘s Policy on Social and Environmental Sustainability 18 .
IFC‘s Sustainability Framework articulates the corporation‘s strategic commitment to sustainable development, and is an integral part of IFC‘s approach to risk management.
The Sustainability Framework comprises IFC‘s Policy and Performance Standards on Environmental and Social Sustainability, and IFC‘s Access to Information Policy.
The Policy on Environmental and Social Sustainability describes IFC‘s commitments, roles, and responsibilities related to environmental and social sustainability.
The Performance Standards are directed towards clients, providing guidance on how to identify risks and impacts, and are designed to help avoid, mitigate, and manage risks and impacts as a way of doing business in a sustainable way, including stakeholder engagement and disclosure obligations of the client in relation to project-level activities.
In the case of its direct investments (including project and corporate finance provided through financial intermediaries).
IFC requires its clients to apply the Performance Standards to manage environmental and social risks and impacts, 18 Originally adopted in 2006 and the latest update effective on 1st January 2012, www.ifc.org/sustainabilityframework http://www.ifc.org/aboutifc http://www.ifc.org/sustainabilityframework 95 so that development opportunities are enhanced.
IFC uses the Sustainability Framework along with other strategies, policies, and initiatives to direct the business activities of the Corporation in order to achieve its overall development objectives.
The Performance Standards may also be applied by other financial institutions.
The Performance Standards consist of the following: Performance Standard 1: Assessment and Management of Environmental and Social Risks and Impacts Underscores the importance of identifying E&S risks and impacts, and managing E&S performance throughout the life of a project.
Performance Standard 2: Labor and Working Conditions Recognizes that the pursuit of economic growth through employment creation and income generation should be balanced with protection of basic rights for workers.
Performance Standard 3: Resource Efficiency and Pollution Prevention Recognizes that increased industrial activity and urbanization often generate higher levels of air, water, and land pollution, and that there are efficiency opportunities.
Performance Standard 4: Community Health, Safety, and Security Recognizes that projects can bring benefits to communities, but can also increase potential exposure to risks and impacts from incidents, structural failures, and hazardous materials.
Performance Standard 5: Land Acquisition and Involuntary Resettlement Applies to physical or economic displacement resulting from land transactions such as expropriation or negotiated settlements.
Performance Standard 6: Biodiversity Management and Sustainable Management of Living Natural Resources Promotes the protection of biodiversity and the sustainable management and use of natural resources.
Performance Standard 7: Indigenous Peoples Aims to ensure that the development process fosters full respect for Indigenous Peoples.
Performance Standard 8: Cultural Heritage Aims to protect cultural heritage from adverse impacts of project activities and support its preservation.
Performance Standard 1 establishes the importance of (i) integrated assessment to identify the environmental and social 96 impacts, risks, and opportunities of projects; (ii) effective community engagement through disclosure of project-related information and consultation with local communities on matters that directly affect them; and (iii) client‘s management of environmental and social performance throughout the life of project.
Performance Standards 2 through 8 establish objectives and requirements to avoid, minimize, and where residual impacts remain, to compensate/offset for risks and impacts to workers, effected communities, and the environment.
While all relevant environmental and social risks and potential impacts should be considered as part of the assessment.
Performance Standards 2 through 8 describe potential environmental and social risks and impacts that require particular attention.
Where environmental or social risks and impacts are identified, the client is required to manage them through its Environmental and Social Management System (ESMS) consistent with Performance Standard 1. b. MIGA’s Policy on Social and Environmental Sustainability MIGA is a member of the World Bank Group.
Its mission is to promote foreign direct investment (FDI) into developing countries to help support economic growth, reduce poverty, and improve people's lives.
19 MIGA‘s operational strategy plays to its foremost strength in the marketplace—attracting investors and private insurers into difficult operating environments.
As a multilateral development agency, MIGA only supports investments that are developmentally sound and meet high social and environmental standards.
MIGA applies a comprehensive set of social and environmental performance standards to all projects and offers extensive expertise in working with investors to ensure compliance to these standards.
Through MIGA‘s Policy on Social and Environmental Sustainability, MIGA puts into practice its commitment to social and environmental sustainability.
This policy applies to all investment guarantees for which Definitive Applications were received after October 2007.
The Performance Standards consist of the following: 20 Performance Standard 1: Social and Environmental Assessment and Management System Performance Standard 2: Labor and Working Conditions 19 MIGA Overview, www.miga.org 20 Policy on Social and Environmental Sustainability, Section 1: Purpose of Policy http://www.miga.org/whoweare/index.cfm?stid=1789 http://www.ifc.org/ifcext/sustainability.nsf/Content/EHSGuidelines http://www.ifc.org/ifcext/sustainability.nsf/Content/PerformanceStandards 97 Performance Standard 3: Pollution Prevention and Abatement Performance Standard 4: Community Health, Safety, and Security Performance Standard 5: Land Acquisition and Involuntary Resettlement Performance Standard 6: Biodiversity Conservation and Sustainable Natural Resource Management Performance Standard 7: Indigenous Peoples Performance Standard 8: Cultural Heritage These Performance Standards are essential documents to help MIGA and its clients manage and improve their social and environment performance through an outcomes-based approach.
The desired outcomes are described in the objectives of each Performance Standard, followed by specific requirements to help clients achieve these outcomes through means that are appropriate to the nature and scale of the project and commensurate with the level of social and environmental risks (likelihood of harm) and impacts.
Central to these requirements is a consistent approach to avoid adverse impacts on workers, communities, and the environment, or if avoidance is not possible, to reduce, mitigate, or compensate for the impacts, as appropriate.
The Performance Standards also provide a solid base from which clients may increase the sustainability of their business operations.
Central to MIGA‘s development mission are its efforts to carry out its support to projects and advisory services in a manner that ―do no harm‖ to people or the environment.
Negative impacts should be avoided where possible, and if these impacts are unavoidable, they should be reduced, mitigated or compensated for appropriately.
In particular, MIGA is committed to ensuring that the costs of economic development do not fall disproportionately on those who are poor or vulnerable, that the environment is not degraded in the process, and that natural resources are managed efficiently and sustainably.
MIGA believes the client‘s regular engagement with local communities about matters that directly affect them plays an important role in avoiding or reducing harm to people and the environment.
MIGA also recognizes that the roles and responsibilities of the private sector in respecting human rights are emerging as an important aspect of corporate social responsibility.
The Performance Standards help private sector clients address environmental and social risks and opportunities, consistent with these emerging roles and responsibilities.
98 B.
Implementation of CSR in IFC and MIGA Guidelines Both IFC and MIFA have CSR implementation and evaluation model to a corporation whom they help.
Both have same identical characteristic which is helping private sector (MNC) in accordance to investment development, they also applied the same policy in the application on rules and evaluation models through their client.
Generally, the enforcement on CSR can be seen on two process, which are, before the business activities run – as preventive action – and when the MNC‘s business activities run – as repressive and evaluation.
a.
Preventive Action This effort concerned in the standard performances rules that have to be fulfilled by the client company of IFC and MIGA.
From IFC and MIGA guidelines above, can be seen that there are steps that have to be fulfilled by the company to reach the IFC and MIGA‘s support, which are: Step 1: The application of cooperation proposal by the client to IFC and MIGA.
Step 2: IFC and MIGA through Environmental and Social (E&S) Team assess the proposal relevance with the standard performance and the other documents that related with the distribution aid rules.
Step 3: Negotiation and commitment Step 4: Signature The E&S‘s team assessment step is very important, to determine the client‘s CSR program is adequate with the standard performance admitted, specially to program that has high rate of social and environmental risk, for example: mining and plantation.
If E&S team concluded that the client is improper, thus the aid will not be given, or the client have to change the proposal and commitment to carry out the sustainable environment, development and has CSR program to the relevant around society.
b.
Repressive Action/ Evaluation As monitoring and evaluation mechanism, the both of IFC and MIFA established Compliance Advisor Ombudsman/CAO.
CAO is an independent organ in order to projects mechanism that supported by the World Bank Group‘s private sector – IFC and MIGA.
CAO responsible directly to WBG‘s President.
CAO works with all parties that concerned which took part in the projects to seek out the real solution in increasing social and environmental result in the field.
Each individuals, groups, society, or any party could file complaint to CAO if they are believes that they, or maybe, 99 influenced by the agency or organization.
The complaints shall be written submitted and could be written in any language.
Complaints may relate to any aspects of the planning, implementation, or impact of IFC/MIGA projects, including but not limited to: 1) Processes followed in preparation of a project; 2) The adequacy of measures for the mitigation of social and environmental impacts of the project; 3) Arrangements for involvement of affected communities, minorities, and vulnerable groups in the project; 4) The manner in which the project is implemented.
CAO has simply 3 rules criteria to make up the complaints through from the examination: 1) The complaints related to IFC and MIGA‘s projects (including a project in consideration) 2) The complaints related to social and/or environmental issues that related to the projects.
3) The complaint‘s party shall believe that they, or maybe, influenced by the social and/or environmental issues risen.
Despitefully, CAO cannot take complaints that did not meet the 3 criteria.
1) When the complaints related to other financial organs (like, not came from IFC and MIGA), CAO insist to direct the complaint party to the exact office.
2) The complaints with deception and corruption notion will be transferred to the World Bank Institutional Integrity Office.
CAO also could not revise complaints which related to IFC and MIGA‘s decisions.
3) CAO denied complaints that wicked, trivial, or submitted in order to achieve competitive advantage.
The following steps will normally be followed in response to a complaint that is received: Step 1 Acknowledgement of receipt.
Step 2 Assessment of eligibility and decision whether to proceed (no more than 15 working days).
Step 3 Assessment of potential for achieving resolution of the complaint (no more than 120 working days).
Step 4 If CAO ombudsman process continous, then implementation of MOU through facilitation/mediation, joint-fact-finding, or other agreed resolution process, leading to a settlement agreement or other mutually agreed and appropriate goal.
Step 5 Monitoring and follow-up.
Step 6 Conclusion.
CAO will inform the public complaint acceptance (who submits the complaints) in complaint‘s language version.
In 15 workday (complaints and documents translation time needed is not 100 included), CAO will informs the complaint party that the complaints is proper to be examine further.
When it is proper, the complaint party would receive information that described how CAO will cooperates to help settle the issues, and CAO‘s specialist will contacts the complaint party personally.
CAO‘s Ombudsman conducted an examination to the situation, and helps the parties in determining best alternatives to dealing the complaints.
Ombudsman does not make a justification in benefits of the complaints and does not determine solutions or seeks the fault.
Our specialist will work together with the parties to identify the alternative approaches and strategies to deal with the issue.
It involves collective fact finding, facilitating discussion between the authorized parties, mediating the disputes, or setting up a dialogue forum or collective monitoring program.
A CAO‘s specialist is given Alternative Dispute Resolution (ADR) training with expertise in examining conflicts, providing mediation, and giving multiparty facilitation.
They work with independent mediators that have specific reputation suitable with nation and expert in facilitation and consensus in project‘s range.
Although the CAO is not a judge, court, or the police, there are influential ways in which it can define issues to be addressed in a complaint, make creative and practical proposals for settling an issue, and encourage parties to engage in dialogue.
Although the CAO cannot force external entities to change their behavior or abandon existing practices, it can call on the leverage of the IFC and MIGA in disputed parties to adopt recommendations.
It is important that complainants should have realistic expectations about what the CAO can deliver in response to a complaint and that organization which supports complainants explains fully the opportunities opened up by CAO action and the limits on such action.
Report Case in Indonesia: CAO Ombudsman conducted an assessment of the issues raised in the complaint and encouraged Wilmar and community members to agree to a dialogue process to help resolve the conflict.
A moratorium on further land clearance was announced by Wilmar Group, and the CAO team worked with the communities and Wilmar to build capacity for representation and negotiation.
A settlement agreement was announced in late 2008 which contained the following provisions: Agreement for community access and use of land that had not been converted to plantations; 101 Compensation for households for appropriation of land; Enhanced community investment funds for collective benefits and access to development opportunities for the broader community.
A joint Monitoring and Evaluation (M&E) team has been established to ensure implementation of these agreements.
Questions relating to IFC‘s due diligence were transferred to CAO Compliance for appraisal.
In September 2008, based on the findings of the appraisal, the CAO determined that an audit of IFC was merited to examine whether IFC had complied with its standards and procedures.
The CAO released its audit report in August 2009, together with IFC's official response.
The audit concluded that IFC had failed to apply its own standards, and its actions were counterproductive to its mission, mandate, and commitment to sustainable development.
With regard to IFC's Wilmar Group investments, the CAO found that IFC applied a de minimis approach toward assessing each project‗s supply chain, and that commercial pressures were allowed to prevail and overly influence the categorization of the project, as well as the scope and scale of IFC‘s environmental and social due diligence.
IFC acknowledged the shortcomings identified by CAO in its official response, and communicated an action plan to CAO on how to address them.
As part of the action plan, IFC committed to develop a comprehensive strategy for oil palm investments, with specific focus on Indonesia.
In September and October 2009, the World Bank Group President instructed IFC and the World Bank Group to suspend financing of oil palm projects until such a strategy had been developed.
Subsequently, in March 2010, IFC embarked on a global consultation to inform its strategy and its future involvement in the oil palm sector.
IFC also immediately changed its procedure for processing single commodity trade finance, embarked on reassessing its exposure in Indonesian oil palm sector, and committed to report back to CAO on a quarterly basis on progress to address the shortcomings identified by the CAO audit.
IV.
CONCLUSION As has been explained before, that there is a displacement concerning to CSR‘s position understanding.
CSR is no longer appreciable as a clean voluntary that cannot be insisted its implementation.
It is supported with numbers of international law 102 instruments that regulates the MNC‘s activities related with CSR which is human right fulfillment, labor rights, environmental rights and sustainable development.
As part of international law organ, IFC and MIGA through CAO endeavour to conduct related CSR implementation monitoring.
With the existence of this organ, MNC is expected to improve its business environment indifferent.
In the end, a good communication between MNC and the society will bring a good impact to economic and welfare development.
REFERENCES Book and Journal Mochtar Kusumaatmadja, Pengantar Hukum Internasional (Introduction of International Law), Bandung: Alumni, 2010 Antonio Cassese, International law in Devided World, 1986 Andrew Clapham, Human Rights Obligations of Non-State Actor, New York: Oxford University Press, 2006 Qureshi Asif H. International Economic Law, Manchester: Sweet and Maxwell, 1999 Brownlee Ian, Principles of Public International Law, New York: Oxford University Press, 2008 Ilias Bantekas, Corporate Social Responsibility in International Law, Boston University International Law Journal, Volume 22:309, 2004 Convention and Online Article Montevideo Convention Rights and Duties of States 1933.
United Nation, Chapter XX http://www.un.org/esa/socdev/rwss/do cs/2001/20%20Corporate%20social%2 0responsibilities.pdf Green Paper.
http://europa.eu.int/comm/employment _social/soc-dial/csr/greenpaper_en.pdf (hereinaftergreenpaper) OECD Guidelines, www.oecd.org UN Global Compact, www.unglobalcompact.org www.ifc.org/aboutifc www.miga.org http://www.un.org/esa/socdev/rwss/docs/2001/20%20Corporate%20social%20responsibilities.pdf http://www.un.org/esa/socdev/rwss/docs/2001/20%20Corporate%20social%20responsibilities.pdf http://www.un.org/esa/socdev/rwss/docs/2001/20%20Corporate%20social%20responsibilities.pdf http://europa.eu.int/comm/employment_social/soc-dial/csr/greenpaper_en.pdf%20(hereinafter http://europa.eu.int/comm/employment_social/soc-dial/csr/greenpaper_en.pdf%20(hereinafter http://europa.eu.int/comm/employment_social/soc-dial/csr/greenpaper_en.pdf%20(hereinafter http://www.oecd.org/ http://www.unglobalcompact.org/ http://www.ifc.org/aboutifc
Microsoft Word REVISED BLJ 2016 CONTENT 5 juni.docx Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 60 INDONESIAN LAW REFORM AND THE PROMOTION OF JUSTICE: AN ANALYSIS OF LAW REFORM IN THE POSTSOEHARTO PERIOD Hannah McGuire Law Schools, Faculty of Laws, Humanities and Arts University of Wollongong Email: hjm919@uowmail.edu.au Abstract This paper focused on law reform in Indonesia post-Soeharto period.
It analyses whether the promotion of justice has been conducted.
It aims to analyse whether the law reform during the reign of B.J.
Habibie impeded on the promotion of justice.
This paper takes the position that the promotion of justice was absent during Soeharto’s presidency, and through an analysis of five law reforms introduced after his downfall No.
2 of 1999 on Political Parties, No.
3 of 1999 on General Elections, No.
28 of 1999 on Corruption, Collusion and Nepotism, No.
31 of 1999 on the Eradication of Corruption and No.
39 of 1999 on Human Rights.
It is argued that that the laws introduced during the Post-Soeharto era did not see to the complete promotion of justice.
Keywords: justice, promotion of justice, law reform, Indonesia, post-Soeharto I.
INTRODUCTION The Encyclopaedic Australian Legal Dictionary defines law reform as the modification of law, through the elimination of defects, the simplification of current law or the adoption new enforcement methods, in order to ensure the promotion of justice.
1 The concept of justice is a considerably disputed term, and therefore to determine the elements of which it is comprised, one must look to 1 LexisNexis, Encyclopaedic Australian Legal Dictionary (at 6 February 2015) ‘Law Reform'.
the literature of jurisprudence.
Focusing on the law reform in Indonesia during the Post-Soeharto period, 1998-1999, this paper aims to analyse whether the law reform during the reign of B.J.
Habibie impeded on the promotion of justice.
This paper takes the position that the promotion of justice was absent during Soeharto’s presidency, and through an analysis of five law reforms introduced after his downfall No.
2 of 1999 on Political Parties, No.
3 of 1999 on General Elections, No.
28 of 1999 on Corruption, Collusion and Nepotism, Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 61 No.
31 of 1999 on the Eradication of Corruption and No.
39 of 1999 on Human Rights, 2 it will be concluded that the laws introduced during the PostSoeharto era did not see to the complete promotion of justice.
II.
METHODOLOGY This paper uses juridicalnormative method, including reviewing and analysing justice issue in postSoeharto Era.
The approach used in this paper is conceptual and statute approach.
The concept of justice in Indonesia will be analysed both during Soeharto Era and post-Soeharto Era.
Legal analyses conducted towards 2 Undang-Undang Republik Indonesia Nomor 2 Tahun 1999 Tentang Perubahan Atas [Laws of the Republic Indonesia Number 2 of 1999 On Political Parties] (Indonesia) [author’s trans]; Undang-Undang Republik Indonesia Nomor 3 Tahun 1999 Tentang Pemilihan Umum [Laws of the Republic Indonesia Number 3 of 1999 On General Election] (Indonesia) [author’s trans]; Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) [author’s trans]; Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) [author’s trans]; Undang-Undang Republik Indonesia Nomor 39 Tahun 1999 Tentang Hak Asasi Manusia [Laws of the Republic Indonesia Number 39 of 1999 On Human Rights] (Indonesia) [author’s trans].
answering the question of whether a complete promotion of justice has been achieved during the post-Soeharto Era.
III.
RESULT AND DISCUSSION LAW REFORM AND JUSTICE Law reform plays a fundamental role in the facilitation of progressive change within societies, as it is the process in which the law evolves to achieve unanimity between the values and needs of society.
Justice Michael Kirby states: [Law reform] is part of the mechanism of modernizing and up-dating our legal system to make it more just and more relevant to the problems of today.
[The law must be reviewed] in a systematic way, modernizing it where necessary and changing it where the change will lead to improvement.
Law reform is not change for its own sake.
It is change for the better.3 If law reform is the alteration of legislation to ensure the achievement of justice,4 it must be determined what is required to ensure that the reform is 3 Chief Justice Michael Kirby, ‘Law Reform and Class Actions’ (Speech delivered at the Australian Society of Senior Executives, Sydney, 31 July 1979) < http://www.michaelkirby.com.au/images/stories /speeches/1970s/vol4/1979/112Aus_Society_of_Senior_Executives__Law_Reform_and_Class_Actions.pdf>.
4 LexisNexis, Above n 1.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 62 ‘just’, or alternatively, what makes it ‘unjust’.
As the requirements to achieve justice may vary from one individual to another, as L.B Curzon explains in his book The Dictionary of Law, one must reconcile the various definitions of the literature of jurisprudence to determine the definition of such a difficult legal concept.5 Alf Ross states, “justice is the correct application of a law, as opposed to arbitrariness”, 6 whilst Edgar Bodenheimer believes, “justice demands that freedom, equality and other basic rights be accorded”.7 Brian Barry, a strong believer of democracy, suggests justice may only be evident when society is ruled under “a political system in which parties represent the distinctive interests and aspirations of different groups”.
8 Conversely, John Stuart Mill takes a more structured approach, suggesting that the concept of justice has two elements: [A] rule of conduct and sentiment which sanctions the rule.
The first must be 5 Leslie Basil Curzon, The Dictionary of Law (Trans-Atlantic Publications, 5th ed, 1998) 37.
6 Alf Ross, On Law and Justice (The Lawbook Exchange, first published 1959, 2012 ed) 173.
7 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law (Harvard University Press, 2nd ed, 1967) 4.
8 Brian Barry, Theories of Justice (University of California Press, 1991) 347. supposed common to all mankind and intended for their good; the sentiment is a desire that punishment may be suffered by those who infringe the rule.9 Alternatively, Aristotle believes justice will always be achieved by the laws of society at the time, as they are superior and are the standard to assess what is ‘right’.10 For Plato, a sufficient definition of justice identifies its essence through the various shared features of a diverse range of definitions.11 Just as Plato suggests,12 it may be determined what the key elements of justice are from an amalgamation of these explanations.
These six prominent legal philosophers, from varying periods of time and schools of thought, arguably derive the elements necessary for law reform to achieve complete and utter ‘justice’: (1) equality before the law, (2) enforce the ideals of democracy, and (3) an absence of arbitrariness.
Equality before the law is the principle in which all persons of a state are subject to the same treatment by the law, in 9 John Stuart Mill, Utilitarianism (Hackett Publishing Company, 2nd ed, 2002) 61.
10 Aristotle, Politics (University of Chicago Press, 2nd ed, 2013) 25.
11 Plato, Laws (Dover Publications, 2006) 32.
12 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 63 application and substance.
13 It ensures that everyone is entitled to “a fair and public hearing by a competent, independent and impartial” judge, 14 promoting the notion of due process.
The second element, democracy, is the concept where every citizen has the opportunity to participate directly in the determination of the government, evident through a legislative assembly that represents the whole people.
15 Finally, an arbitrary action or decision is one not based on reason, but on personal discretion or will without concern for the standards.
16 It is suggested that law reform that contradicts one of these elements will hinder the promotion of justice.
Through this examination of theoretical literature, it can be submitted that the achievement of justice is a useful guide to evaluate the merits of law reform.
Whilst it may be suggested that as the elements which justice are comprised of are disputed, and “the fact 13 David Byrne, ‘Equality Before the Law’ (1970) 2 Dublin University Law Review 40, 41.
14 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14.
15 LexisNexis, Above n 1, ‘Democracy'.
16 Peter Butt and David Hamer (eds), LexisNexis Concise Australian Legal Dictionary (LexisNexis, 4th ed, 2011) 34. that those norms employed as standards of justice may vary from one individual to another”,17 this does not ground the idea that the principles embodied by the term should be discarded simply because they are challenged.
Key legal concepts that are widely debated, such as good governance and the rule of law, 18 constitutionalism, 19 and accountability, 20 form the basis of analysis in numerous esteemed authors’ works.
Therefore the elements that constitute justice, as derived above, provide a foundation in which Habibie’s law reforms in the period of 1998-1999 may be analysed.
THE NEED FOR LAW REFORM IN 1998-1999 INDONESIAN SOCIETY In order to determine whether various legislative enactments under President B.J Habibie’s rulership 17 Achmad Ali, ‘Law and Development in Changing Indonesia’ (Research Report, No 8, Institute of Developing Economies, 12 March 2001) 104.
18 See Nadirsyah Hosen, Reform of Indonesian Law in the Post-Soeharto era (19981999) (PhD Thesis, The University of Wollongong, 2004).
19 See Mattias Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15(5) European Journal of International Law 907, 908.
20 See Jane Stromseth, ‘Pursuing Accountability for Atrocities After Conflict: What Impact on Building the Rule of Law?’ (2007) 38 Georgetown Journal of International Law 251.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 64 promote the ideals of justice, one must examine the laws during his predecessor Soeharto’s reign.
Soeharto’s presidency was characterized by inequitable political policies, rampant corruption in judicial and investigative processes and lack of due process leading to human rights abuses.
Soeharto’s New Order regime mandated a ‘closed’ political system, allowing the formation of three political parties Golongan Karya (Golkar), Partai Persatuan Pembangunan (PPP) and Partai Demokrasi Indonesia (PDI).
21 Elections were carried out unethically, with voting occurring whilst in the workplace and the absence of an independent supervising committee.
22 Under these conditions, the Soeharto’s Golkar party, won the 1971, 1977, 1982, 1987, 1992 and 1997 elections with the supposed support of over 60% of the voters.
23 Further, Indonesian politics during the rule of Soeharto was marked with a lack of accountability and transparency, the result of rampant corruption throughout 21 Hans Antlöv and Sven Cederroth, Elections in Indonesia: The New Order and Beyond (RoutledgeCurzon, 2004) 138.
22 Ibid.
23 Leo Suryadinata, ‘A Year of Upheaval and Uncertainty: The Fall of Soeharto and Rise of Habibie’ [1999] Southeast Asian Affairs 111, 113. the system.
Throughout Soeharto’s rule, there were numerous complaints to authorities regarding the “rapacious rentier business practices” of his immediate family members and business associates,24 however due to a lack of impartial investigative authorities during this time these claims did not lead to prosecution.
Soeharto ensured that the profits of corruption were spread throughout the government and legislature, so all bureaucrats, judges, police and the Attorney General had some stake.
Through this dispensation of ‘favours’, his term in office continued to extend.25 As a result of prejudiced political policies and rampant corruption, the general population took a stand against his dictatorship, with student and mass protests.
However, with a corrupt military and a lack of due process, many protestors were jailed, tortured and killed.
With the outcry by so many for Soeharto to resign from his Presidency, he did so with much hesitation in May 1999.
On the following day, B.J Habibie was 24 Andrew MacIntyre, ‘Institutions and the Political Economy of Corruption in Developing Countries’ (Paper presented at Workshop on Corruption, Stanford University, 31 February 2003) 4.
25 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 65 appointed to the President of Indonesia with the expectation of reforming Indonesia into a fair and democratic nation which promotes justice for all.
POLITICAL LAW REFORM Brian Barry, in his work Theories of Justice, acknowledges that a legal system that adopts the ideals of democracy will increase the likelihood of the promotion of justice.
26 A prerequisite of democracy is conducting uncorrupt general elections, in which the population is able to freely vote and political parties can campaign without fear of government coercion.
President Habibie, in his strive to ensure the promotion of justice, introduced two legislative reforms, No 2 of 1999 on Political Parties and No 3 of 1999 on General Elections,27 to ensure Indonesia held its first “free and fair election” in 1999.
28 Whilst the legislation was beneficial from a number of 26 Barry, above n 7.
27 Undang-Undang Republik Indonesia Nomor 2 Tahun 1999 Tentang Perubahan Atas [Laws of the Republic Indonesia Number 2 of 1999 On Political Parties] (Indonesia) [author’s trans]; Undang-Undang Republik Indonesia Nomor 3 Tahun 1999 Tentang Pemilihan Umum [Laws of the Republic Indonesia Number 3 of 1999 On General Election] (Indonesia).
28 Greg Baron, ' Democracy in Indonesia' The Monthly (online) July 2009 <https://www.themonthly.com.au/issue/2009/jul y/1360559640/greg-barton/comment>.
perspectives, such as high voter participation, low violence level and a peaceful transfer of power, the reforms were also flawed with serious shortcomings.
29 The aim of these reforms was to restore the imbalances in the promotion of justice through Soeharto’s questionable politics.
However, it can be submitted that these reform hindered the promotion of justice due to the vagueness of the laws resulting in arbitrary decision-making, a lack of appeal process offending the principle of equality before the law, and the appointment of members of the legislature contradicting the principles of democracy.
Law No.
2 of 1999 and Law No.
3 of 1999 do not result in the total promotion of justice as, due to the reforms’ lack of clarity, significant gaps are left in the law resulting in arbitrary decision-making.
In order to remedy this issue and create comprehensive applicable laws, the National Election Committee (KPU) was authorised to use its discretion to clarify the legislation,30 29 Ben Hillman, ‘Electoral Governance and Democratic Consolidation in Indonesia’ (2011) 39(3) The Indonesian Quarterly 301, 302.
30 Undang-Undang Republik Indonesia Nomor 3 Tahun 1999 Tentang Pemilihan Umum [Laws of the Republic Indonesia Number 3 of Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 66 resulting in the issuance of more than two hundred regulations and a problematic hybrid system.
31 The difficulties created through this unrestricted discretion can be clearly seen when observing the Election Commission Formation Preparation Committee (Election Commission), a body formed by the KPU to determine which of the political parties met the legal requirements to run in the 1999 General Election.
Article 39(5) states that the “registration of political parties to participate in the General Election, is regulated by the decisions of the [Election] Commission”.
32 The contradiction of the ideals of Pancasila was the only guidance to determine which of the 148 newly formed political parties met the ‘legal’ requirements to participate in the General Election, 33 1999 On General Election] (Indonesia) art 16(84) [author’s trans].
31 Nadirsyah Hosen, ‘Indonesian Political Laws in Habibie Era: Between Political Struggle and Law Reform’ (2003) 72 Nordic Journal of International Law 483, 515.
32 Undang-Undang Republik Indonesia Nomor 3 Tahun 1999 Tentang Pemilihan Umum [Laws of the Republic Indonesia Number 3 of 1999 On General Election] (Indonesia) art 39(5) [author’s trans].
33 Loren Ryters, ‘Permuda Pancasila: The Last Loyalist Free Man of Suharto’s Order?’ (1998) 66 Indonesia 44, 44, provides that Pancasila is the official philosophical foundation of the Indonesian nation, comprising of five broad requirements – (1) belief in the one and only god, (2) just and civilized humanity, (3) the unity of Indonesia, (4) article 2 providing that the “characteristics, aspirations and Political Party program [shall] not conflict with Pancasila”.
34 The determination of how to interpret and apply this concept was left to the Committee’s discretion.
With no mechanism to ensure the correct and equal application of this criteria, the KPU and Election Commission formed a ‘super body’, 35 with unlimited discretion and able to act according to their own arbitrary will.
As Law No.
2 of 1999 and Law No.
3 of 1999 permit arbitrariness in decision-making, it cannot fulfill the criteria for the complete promotion of justice.
Further, Law No.
2 of 1999 does not uphold the promotion of justice in its entirety as it offends the principle of equality before the law due to its lack of appeal process.
Article 12 states that “the supervision of the provisions contained in this legislation is done by the Supreme Court of the Republic of democracy guided by the inner wisdom in the unanimity arising out of deliberations amongst representatives, and (4) social justice for all of the people of Indonesia.
34 Undang-Undang Republik Indonesia Nomor 2 Tahun 1999 Tentang Perubahan Atas [Laws of the Republic Indonesia Number 2 of 1999 On Political Parties] (Indonesia) art 2(2) [author’s trans].
35 Hosen, Reform of Indonesian Law in the Post-Soeharto era (1998-1999), above n 17, 198.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 67 Indonesia”, 36 and the court has the ability to “dissolve or suspend” a political party for violation of the Act.37 Whilst the legislation provides a mechanism to ensure the compliance of political parties with the legislature, it does not stipulate a dispute resolution mechanism for political parties who have been aggrieved.
The Post-Election Assessment Report outlines that if the Election Committee failed to resolve a complaint, an area of unfamiliarity is entered into, stating: It is not clear whether the court system [would] entertain and exercise jurisdiction over grievances arising out of the election process.
There are no precedents, and the electoral legislation and regulations themselves are unclear.38 In the example above regarding the Election Committee, the parties that did not meet the ‘legal requirements’ to 36 Undang-Undang Republik Indonesia Nomor 2 Tahun 1999 Tentang Perubahan Atas [Laws of the Republic Indonesia Number 2 of 1999 On Political Parties] (Indonesia) art 17(1) [author’s trans].
37 Undang-Undang Republik Indonesia Nomor 2 Tahun 1999 Tentang Perubahan Atas [Laws of the Republic Indonesia Number 2 of 1999 On Political Parties] (Indonesia) art 17(2) [author’s trans].
38 Glenn Cowan, ‘The 1999 Election and Post-Election Developments in Indonesia: A Post-Election Assessment Report’(Research Report, The National Democratic Institution, 28 November 1999) 10. participate in the General Election had no avenue to dispute this decision.
It can be concluded therefore, that Law No.
2 of 1999 impedes upon the promotion of justice as the lack of appeal process results in denying equality before the law.
The notion of democracy, where the legislature is representative of the entire population, 39 is infringed upon due to Law No.
3 of 1999 allowing for the appointment of members of the People’s Consultative Assembly (MPR).
The 1999 election was conducted under the reformed system in which the 700-member MPR was composed of 462 members of the legislature, 38 members of the military and 200 members appointed by the government, resulting in 34% of the MPR being unelected officials.40 Article 42 states that the members of the Armed Forces are not required to be elected via the General Election, but are rather to be appointed to their position.
41 It is inherently undemocratic for the 39 LexisNexis, Above n 1, ‘Democracy’.
40 Marguerite Robinson, The Microfinance Revolution: Lessons from Indonesia (World Bank Publications, 2nd ed, 2002) 59.
41 Undang-Undang Republik Indonesia Nomor 3 Tahun 1999 Tentang Pemilihan Umum [Laws of the Republic Indonesia Number 3 of 1999 On General Election] (Indonesia) art 45 [author’s trans].
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 68 reservation of seat in the legislative branch, and the appointment of military personnel raises further implications as to what the role of the military is – a voice to lead the people, or to serve and protect them?
Further, it is the role of the MPR to determine the President and Vice President of Indonesia.42 With the restraints on democracy as outlined above, the outcome of the determination of the president may be significantly different to that of the parliamentary election.
For example, Magawati Soekarnoputri was not selected as President in 1999, whilst her party won the general election, 43 raising implications as depth of these democratic ideals in which the law attempts to achieve.
Due to this mechanism of appointment allowed by Law No.
3 of 1999 the leadership of Indonesia is not representative of the people’s choices, and therefore does not promote justice in its totality.
A legal system that adopts the notion of democracy will further the promotion of justice than one that does 42 Donald Horowitz, Constitutional Change and Democracy in Indonesia (Cambridge University Press, 2013) 109.
43 Hosen, ‘Indonesian Political Laws in Habibie Era: Between Political Struggle and Law Reform’, above n 29. not.44 Whilst observing only the benefits derived from Law No.
2 of 1999 and Law No.
3 of 1999, some may argue that justice was achieved as Indonesia has its first ‘free and fair’ election.
However, due to the vagueness of the introduced laws resulting in arbitrary decision-making, a lack of appeal process offending the principle of equality before the law, and the appointment of members of the legislature infringe upon the ideals of democracy, these reforms did not achieve the promotion of absolute justice.
ANTI-CORRUPTION LAW REFORM Corruption has been a serious obstacle throughout Indonesia’s history and, arguably, reducing corrupt practices within the governmental and judicial structure has been sluggish due to the culture of patronage within both politics and business.
45 During B.J.
Habibie’s presidency in the years 19981999, two law reforms were introduced, Law 28 of 1999 on Corruption, 44 Barry, above n 7.
45 Helena Varkkey, ‘Patronage politics as a driver of economic regionalisation: The Indonesian Oil Palm Sector and Transboundary Haze’ (2012) 53(3) Asia Pacific Viewpoint 314, 315.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 69 Collusion and Nepotism and Law No.
31 of 1999 on the Eradication of Corruption, 46 to ensure the eradication of corruption, the creation of an ethical government and to ensure the promotion of justice within Indonesian society.
However, it can be argued that these laws fell short of the standard required to ensure the promotion of justice.
This is evident through an examination of the mechanisms introduced to fight corruption that failed to be implemented uniformly, and the laws promoted arbitrary decisionmaking through the depth of discretion they permitted.
Law No.
28 of 1999 and Law No.
31 of 1999 do not result in the total promotion of justice as they violate the foundational elements of the term, particularly the requirement of equality before the law, as the mechanisms in which the laws created failed to apply to the Golkar Party.
Law No.
28 of 1999 created an independent corruption body 46 Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) [author’s trans]; Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) [author’s trans].
called the KPKPN, which has the task of auditing the assets of State Functionaries.
47 Law No.
31 of 1999 authorised the formation of the Corruption Eradication Commission (KPK), a body with superior investigative powers in matters relating to corruption.
48 However the delay in the formation of these bodies ensures the obstruction of justice, as they were to be established one and two years after the commencement of the laws, respectfully.49 It can be argued that the laws were implemented to ensure that the Habibie government and the members of parliament did not have to report their assets to the KPKPN, nor be 47 Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) art 10 [author’s trans].
48 Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) art 43(1) [author’s trans].
49 Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) art 24 [author’s trans]; Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) art 43(1) [author’s trans].
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 70 the target of KPK investigations.
Damien Kingsbury states that corruption was not addressed during Habibie’s reign as he was “himself a beneficiary of corruption and nepotism, while his party, Golkar, was able to function only as a result of its various and usually illegal money-gathering schemes”.
50 Neither Law No.
28 of 1999 nor Law No.
31 of 1999 resulted in the complete promotion of justice as the mechanisms in which the created resulted in the violation of equality before the law.
Additionally, through the failure to ensure the proportionate implementation of the laws throughout society, Law No.
28 of 1999 and Law No.
31 of 1999 breach the notion of equality before the law, and thus may not fulfil the promotion of complete justice.
As explored above, the KPKPN and the KPK were granted the role of investigating cases of corruption, 51 50 Damien Kingsbury, The Politics of Indonesia (Oxford University Press, 2nd ed, 2002) 213.
51 Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) art 17(2)(b) [author’s trans]; Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On however prosecution and conviction was the role of the Attorney General and the “notoriously corrupt, poorlytrained, and poorly-paid judiciary”.
52 Data from March 2000 shows that, despite these reforms, less than 20% of investigated corruption cases had been resolved.
53 A report submitted to the United Nations for the 108th Geneva Convention states: Prosecutors are generally unwilling to investigate cases that may implicate members of the Government.
The Attorney General continues to apply certain manipulated or incorrect interpretations of law to refuse prosecution.
For instance, the Attorney General has asserted the principle of ne bis in idem (double jeopardy) [in cases where it is not applicable].54 However, statistics from the 1998 Accountability Report show that, from May 1998 to June 1999, the number of corruption cases investigated Eradication of Corruption] (Indonesia) art 43(2) [author’s trans].
52 Dwight King, ‘Corruption in Indonesia: A Curable Cancer?’ (2002) 53(2) Journal of International Affairs 603, 611.
53 Timothy Lindsey (ed), Indonesia, Law and Society (The Federation Press, 2nd ed, 2008) 131.
54 The International Federation for Human Rights, Submission to United Nations Human Rights Committee, Parallel Report to the Initial Report of Indonesia on the International Covenant on Civil and Political Rights, 10 July 2013, 5.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 71 increased by 321% compared to that during Soeharto’s presidency.55 What is lacking from this report is that a large majority of the cases brought to the courts involve only minor incidents, as neither the Chief Prosecutor nor the Chief of Police were prepared to prosecute prominent governmental figures.
56 Indeed, both the Chief Prosecutor and the Chief of Police were seen as lacking integrity themselves, with the Chief Prosecutor later being forced to step down, but avoiding prosecution, due to his own corruption scandal.
57 This lack of equality in the implementation of Law No.
28 of 1999 and Law No.
31 of 1999 to prominent figures ensures that the promotion of justice is obstructed.
Further, Law No.
28 of 1999 and Law No.
31 of 1999 allow for arbitrary decision-making through the depth of discretion they permit, resulting in a failure to promote justice in its entirety.
Whilst both reforms introduced numerous repressive measures to reduce the occurrence corruption, 58 the 55 Lindsey, above n 51, 14.
56 Ibid.
57 Ibid.
58 See Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) art 2theoretical foundation of these is, arguably, incorrect.
The basis of these reforms is that imprisonment plays the foremost role in reducing the occurrence of corruption.
59 Higher penalties may decrease the number of those who participate in corruption, due to their deterrent effect,60 however they may also lead to an increase in bribes towards the judiciary for those who are not primarily deterred.
Data from the Political & Economic Risk Consultancy show that corruption following the introduction of Law No.
28 of 1999 and Law No.
31 of 1999 increased, with grades of 8.67 in 1997, 8.96 in 1998 and 9.91 in 1999.
61 The grades are scaled from 0 to 10, with 0 representing no corruption,62 emphasizing the failure of these repressive measures.
Further, there seems to be disparity between the 20 [author’s trans]; Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) art 21-22 [author’s trans].
59 Donald Ritchie, ‘Sentencing Matters: Does Imprisonment Deter?
A Review of the Evidence’ (Research Report, Victorian Sentencing Advisory Council, April 2011) 2.
60 Ibid.
61 Theresa Thompson and Anwar Shah, Transparency International’s Corruption Perceptions Index: Whose Perceptions Are They Anyway?
(Research Report, The World Bank, March 2005) 10.
62 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 72 penalties mandated in the law and the penalties that are imposed, evincing the lack of connection between limiting the judge’s discretion and an increase in penalties.63 In a context with corruption flourishing, this ‘discretion’ can be used as a means to negotiate.
For example, whilst Law No 31 of 1999 mandates a 4-year minimum sentence, 64 the Criminal Code implements a 1-year imprisonment as a minimum sentence for the same crime.65 With the Attorney General, police and judges able to choose which is ‘more applicable’ to the facts, there is a perception that penalties will be applied selectively or arbitrarily.
66 It can therefore be concluded that Law No.
28 of 1999 and Law No.
31 of 1999 does not promote justice in its totality due to the allowance for arbitrary decision-making through the depth of discretion permitted.
63 Hosen, Reform of Indonesian Law in the Post-Soeharto era (1998-1999), above n 29, 11.
64 Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) art 2 [author’s trans].
65 Kode Kriminal [Criminal Code] (Indonesia) art 5 [author’s trans].
66 Hosen, Reform of Indonesian Law in the Post-Soeharto era (1998-1999), above n 29, 11.
It can be concluded that Law 28 of 1999 on Corruption, Collusion and Nepotism and Law No.
31 of 1999 on the Eradication of Corruption do not ensure the promotion of justice within Indonesian society.
The ineffectiveness of these reforms is evident as the level of corruption increased throughout Indonesia.
Further, these laws fell short of the standard required to promote the total achievement of justice as they violated the notions of equality before the law and arbitrary decision-making.
This is evident through the examination of their corruption-fighting measures, which were inapplicable to the Golkar party, a failure to implement the law uniformly and allowing for unrestricted discretion.
HUMAN RIGHTS LAW REFORM With the introduction of Law No.
39 of 1999 on Human Rights, Indonesia aimed to establish a legal foundation for the protection of human rights and punish the perpetrators of past violations.
However, whilst this law has led to significant improvements in the area of establishing a legal foundation for the future protection of human rights, the implementation of the law has lacked in practicality.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 73 Observing the legislation in isolation, it promotes equality before the law and ensures the absence of arbitrariness.
However, issues such as the ineffectiveness of procedures and the militaristic legal culture raises questions as to how effectively Law No.
39 of 1999 can promote justice.
The content of Law No.
39 of 1999 promotes the achievement of justice due to the standard of human rights protection it confers, thus ensuring equality before the law and the absence of arbitrariness.
The content of the law is deemed to be within the minimum standard required by the International Commission of Jurists (ICJ) and that required of international human rights law.67 Fundamentally, the law expanded the powers of the National Commission of Human Rights (Komnas HAM) in its role in the promotion and protection of human rights throughout Indonesia.
68 The newly conferred functions are “to study, research, disseminate, monitor and mediate human rights issues”, 69 and therefore “improve the protection and 67 Ibid, 205.
68 Lindsey, above n 50, 461.
69 Undang-Undang Republik Indonesia Nomor 39 Tahun 1999 Tentang Hak Asasi Manusia [Laws of the Republic Indonesia Number 39 of 1999 On Human Rights] (Indonesia) art 98 [author’s trans].
the upholding of human rights in the interests of … the Indonesian people as a whole”.70 To ensure the independence of the body, article 98 ensures the funding of Komnas HAM is via the State budget, ensuring accountability to the People’s Representative Council (DPR) rather than the Cabinet, as was previously the case.
71 At an international level, Komnas HAM has quickly fostered a meaningful reputation as an impartial, outspoken, and conscientious human rights body, “often directly criticizing government policies, actions by the police and military, and highlighting human rights anomalies”.72 From the creation of this national human rights body, praised at an international level, it can be stated that the content of Law No.
39 of 1999 creates an institution that aims to achieve ‘justice’, through the promotion of equality and the abstinence of arbitrariness.
Whilst Law No.
39 of 1999 has led to a significant improvement the substance of the law, ineffective procedures have resulted in an inability to prosecute human rights violators, 70 Ibid, art 75.
71 Lindsey, above n 50, 461.
72 Philip Eldrige, ‘Human Rights in Post-Suharto Indonesia’ (2001) 9(1) The Brown Journal of World Affairs 127, 130.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 74 raising implications as to whether the requirement of the due process of the law is satisfied.
Whilst progress has been made, cases of human rights abuses such as arbitrary detentions, torture and other forms of mistreatment continue to be reported.73 According to many commentators, this is due to the structural issues that demand substantial improvements.74 The criminal judicial process in Indonesia is divided into four phases inquiry, investigation, prosecution and court examination.
75 Whilst Komnas HAM has the ability to inquire, Enny Soeprapto states that the body should have a larger role in the investigation stage “as there is not enough trust in the official organs”.76 In relation to the prosecution stage, Act No.
39 of 1999 does not outline the process that the judiciary should follow, as well as lacking clarification as to which court has authority in these 73 Hao Duy Phan, A Selective Approach to Establishing a Human Rights Mechanism in Southeast Asia: The Case for a Southeast Asian Court of Human Rights (Brill Academic Publishing, 1st ed, 2012) 49.
74 Ibid.
75 Theodor Rathgeber, ‘Strengthening Human Rights in Indonesia’ (speech delivered at the German Forum of Human Rights, Geneva’s Friedrich Ebert Stifttung Office, 5 April 2005) <http://www.watchindonesia.org/Strengthening HumanRightsIndonesia.pdf> 76 Ibid.
matters.
77 As a result, for five years from the implementation of the Act, not a single case of alleged human rights violation was judicially processed.
78 These procedural barriers have resulted in the absence in the due process of the law, and therefore as a matter of practicality, Law No.
39 of 1999 does promote justice in its totality.
A further barrier to the achievement of justice and the enforcement of Law No.
39 of 1999 can be attributed to the severity of the change to the substance of the law, which due to the legal culture of Indonesia diminished the notion of equality before the law.
Monika Schlicher, a spokesperson for the nongovernmental organisation Watch Indonesia, stated, “the human rights situation in Indonesia has not improved significantly” due to the strong culture of militarism and the slow reform of police attitudes.
79 This is evident through the examination of the Semanggii tragedy that occurred months after the introduction of Law No.
39 of 1999, where the Indonesian Military committed a grave violation of human rights.
Students participating in a 77 Ibid.
78 Ibid.
79 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 75 peaceful protest were fired on by the military, killing numerous students and hapless bystanders.
80 Komnas HAM issued numerous summonses to those who ordered the attack, however they refused to answer due to the belief that their actions were lawful.
81 The legal culture of militarism hinders the applicability and enforcement of Law No.
39 of 1999.
Due to this barrier the administration of justice is significantly problematic due to the lack of equality before the law.
In summary, the introduction of Law No.
39 of 1999 has improved the legal foundation to protect human rights by granting Komnas HAM a greater role in their protection.
This, in isolation, promotes equality before the law and ensures the absence of arbitrariness.
However, the implementation of Law No.
39 of 1999 faces numerous barriers, such as insufficient procedures and the militaristic culture of Indonesia, which in tern, result in the absence of due process and equality before the law.
80 Katinka van Heeren, Contemporary Indonesian Film: Spirits of Reform and Ghosts from the Past (Brill Academic Publishing, 1st ed, 2013) 125.
81 Hikmahanto Juwana, ‘Assessing Indonesia's Human Rights Practice In The PostSoeharto Era: 1998-2003’ (2003) 7 Singapore Journal of International and Comparative Law 644, 667.
Therefore, whilst Law No.
39 of 1999 has assisted in the achievement of justice, it cannot be deemed to fulfill the aim of achieving total justice.
IV.
CONCLUSION The aim of law reform is the promotion of justice, however without meeting the requirements of equality before the law, enforcing the ideal of democracy and ensuring an absence of arbitrariness, meeting this standard is unrealistic.
The reforms of 1999 No.
2 of 1999 on Political Parties, No.
3 of 1999 on General Elections, No.
28 of 1999 on Corruption, Collusion and Nepotism, No.
31 of 1999 on the Eradication of Corruption and No.
39 of 1999 on Human Rights – significantly contributed to the absence of the promotion of justice in its totality.
Following the analysis of these laws, it is evident that the need for further reform is essential: the achievement of justice should be the priority.
REFERENCE ARTICLES/BOOKS/REPORTS Achmad Ali, ‘Law and Development in Changing Indonesia’ (Research Report, No 8, Institute of Developing Economies, 12 March 2001) Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 76 Antlöv, Hans and Sven Cederroth, Elections in Indonesia: The New Order and Beyond (RoutledgeCurzon, 2004) Aristotle, Nicomachean Ethics (Hackett Publishing Company, 2nd ed, 1999) Aristotle, Politics (University of Chicago Press, 2nd ed, 2013) Barry, Brian, Theories of Justice (University of California Press, 1991) Bodenheimer, Edgar, Jurisprudence: The Philosophy and Method of the Law (Harvard University Press, 2nd ed, 1967) Butt, Peter and David Hamer (eds), LexisNexis Concise Australian Legal Dictionary (LexisNexis, 4th ed, 2011) Byrne, David ‘Equality Before the Law’ (1970) 2 Dublin University Law Review 40 Cowan, Glenn, ‘The 1999 Election and Post-Election Developments in Indonesia: A Post-Election Assessment Report’ (Research Report, The National Democratic Institution, 28 November 1999) Eldrige, Philip, ‘Human Rights in PostSuharto Indonesia’ (2001) 9(1) The Brown Journal of World Affairs 127 Habermas, Jürgen, Legitimation Crisis (Beacon Press, 1975) Heeren, Katinka van, Contemporary Indonesian Film: Spirits of Reform and Ghosts from the Past (Brill Academic Publishing, 1st ed, 2013) Hill, Gerald and Kathleen Hill, The People’s Law Dictionary (MFJ Books, 2002) Hillman, Ben, ‘Electoral Governance and Democratic Consolidation in Indonesia’ (2011) 39(3) The Indonesian Quarterly 301 Horowitz, Donald, Constitutional Change and Democracy in Indonesia (Cambridge University Press, 2013) Hosen, Nadirsyah ‘Indonesian Political Laws in Habibie Era: Between Political Struggle and Law Reform’ (2003) 72 Nordic Journal of International Law 483 Juwana, Hikmahanto, ‘Assessing Indonesia's Human Rights Practice In the Post-Soeharto Era: 1998-2003’ (2003) 7 Singapore Journal of International and Comparative Law 644 King, Dwight, ‘Corruption in Indonesia: A Curable Cancer?’ (2002) 53(2) Journal of International Affairs 603 Kingsbury, Damien, The Politics of Indonesia (Oxford University Press, 2nd ed, 2002) Kumm, Mattias ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’ (2004) 15(5) European Journal of International Law 907 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 77 Lindsey, Timothy (ed), Indonesia, Law and Society (The Federation Press, 2nd ed, 2008) McLeod, Ross, ‘Soeharto’s Indonesia: A Better Class of Corruption’ (2000) 7(2) Agenda: A Journal of Policy Analysis and Reform 99 Mill, John Stuart, Utilitarianism (Hackett Publishing Company, 2nd ed, 2002) Phan, Hao Duy, A Selective Approach to Establishing a Human Rights Mechanism in Southeast Asia: The Case for a Southeast Asian Court of Human Rights (Brill Academic Publishing, 1st ed, 2012) Plato, Laws (Dover Publications, 2006) Robinson, Marguerite, The Microfinance Revolution: Lessons from Indonesia (World Bank Publications, 2nd ed, 2002) Ritchie, Donald, ‘Sentencing Matters: Does Imprisonment Deter?
A Review of the Evidence’ (Research Report, Victorian Sentencing Advisory Council, April 2011) Ryters, Loren, ‘Pemuda Pancasila: The Last Loyalist Free Men of Suharto's Order?’ (1998) 66 Indonesia 44 Saunders, Joseph, Academic Freedom in Indonesia: Dismantling Soeharto-era Barriers (Human Rights Watch, 1998) Stromseth, Jane, ‘Pursuing Accountability for Atrocities After Conflict: What Impact on Building the Rule of Law?’ (2007) 38 Georgetown Journal of International Law 251 Suryadinata, Leo, Elections and Politics in Indonesia (Institute of Southeast Asian Studies, 2002) Suryadinata, Leo, ‘A Year of Upheaval and Uncertainty: The Fall of Soeharto and Rise of Habibie’ [1999] Southeast Asian Affairs 111 Thompson, Theresa and Anwar Shah, Transparency International’s Corruption Perceptions Index: Whose Perceptions Are They Anyway?
(Research Report, The World Bank, March 2005) Varkkey, Donald, ‘Patronage politics as a driver of economic regionalisation: The Indonesian Oil Palm Sector and Transboundary Haze’ (2012) 53(3) Asia Pacific Viewpoint 314 LEGISLATION Kode Kriminal [Criminal Code] (Indonesia) [author’s trans] Undang-Undang Republik Indonesia Nomor 2 Tahun 1999 Tentang Perubahan Atas [Laws of the Republic Indonesia Number 2 of 1999 On Political Parties] (Indonesia) [author’s trans] Undang-Undang Republik Indonesia Nomor 3 Tahun 1999 Tentang Pemilihan Umum [Laws of the Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 78 Republic Indonesia Number 3 of 1999 On General Election] (Indonesia) [author’s trans] Undang-Undang Republik Indonesia Nomor 28 Tahun 1999 Tentang Penyelenggara Negara Yang Bersih Dan Korupsi, Kolusi Dan Nepotisme [Laws of the Republic Indonesia Number 28 of 1999 On Organizers of the Clean and Free From Corruption, Collusion and Nepotism] (Indonesia) Undang-Undang Republik Indonesia Nomor 31 Tahun 1999 Tentang Pemberantas San Tindak Pidana Korupsi [Laws of the Republic Indonesia Number 31 of 1999 On Eradication of Corruption] (Indonesia) Undang-Undang Republik Indonesia Nomor 39 Tahun 1999 Tentang Hak Asasi Manusia [Laws of the Republic Indonesia Number 39 of 1999 On Human Rights] (Indonesia) [author’s trans] OTHERS Baron, Greg, ' Democracy in Indonesia' The Monthly (online) July 2009 <https://www.themonthly.com.a u/issue/2009/july/1360559640/g reg-barton/comment> Hosen, Nadirsyah, Reform of Indonesian Law in the PostSoeharto era (1998-1999) (PhD Thesis, The University of Wollongong, 2004) International Federation for Human Rights, Submission to United Nations Human Rights Committee, Parallel Report to the Initial Report of Indonesia on the International Covenant on Civil and Political Rights, 10 July 2013 Kirby, Chief Justice Michael ‘Law Reform and Class Actions’ (Speech delivered at the Australian Society of Senior Executives, Sydney, 31 July 1979) <http://www.michaelkirby.com.
au/images/stories/speeches/1970 s/vol4/1979/112Aus_Society_of_Senior_Executi ves__Law_Reform_and_Class_Actio ns.pdf> LexisNexis, Encyclopaedic Australian Legal Dictionary (at 10 February 2015) MacIntyre, Andrew, ‘Institutions and the Political Economy of Corruption in Developing Countries’ (Paper presented at Workshop on Corruption, Stanford University, 31 February 2003) Rathgeber, Theodor ‘Strengthening Human Rights in Indonesia’ (speech delivered at the German Forum of Human Rights, Geneva’s Friedrich Ebert Stifttung Office, 5 April 2005) <http://www.watchindonesia.org /StrengtheningHumanRightsInd onesia.pdf>
282 | DOI: http://doi.org/10.21776/ub.blj.2021.008.02.07 Fintech Remittance Syariah: The Solution of Collection Ziswaf Overseas in Indonesia Umi Khaerah Pati1, Kukuh Tejomurti2, Pujiyono3, Pranoto4 1 Universitas Sebelas Maret Email: umi_khaerah@staff.uns.ac.id 2 Universitas Sebelas Maret Email: kukuhmurtifhuns@staff.uns.ac.id 3 Universitas Sebelas Maret Email: pujifhuns@staff.uns.ac.id 4 Universitas Sebelas Maret Email: Pranoto@staff.uns.ac.id Submitted: 2021-08-30 | Accepted: 2021-09-22 Abstract: Fundraising cross-border Zakah, infaq (charity spending), waqf (endowment) and sadaqah (voluntary charity) (ZISWAF) stated in Article 16 Law No.
23/2011 on Zakat Management is carried out by Baznas by forming UPZ representatives of the Republic of Indonesia abroad.
The power of fintech that might be operated on a global scale can be an alternative for ZISWAF international friendly transfers.
Based on the Islamic Finance News (IFN) report, as many as 142 Islamic fintechs are available worldwide.
Islamic FinTech offers the opportunity to become more applicable to global Muslims.
This article is a normative economic analysis on the basis of secondary data.
This study found that there are three methods for managing transnational ziswaf that have been used globally, i.e, fintech crowdfunding cryptocurrency using a blockchain-based system, Payment via foreign fintech and fintech transfer peer-to-peer remittance, However, due to a number of variables, fintech remittance has an edge in the innovation of collecting ziswaf overseas in terms of popularity and halal transactions, despite the fact that it is not in the form of sharia.
However, the development of sharia fintech remains the main goal of implementing muamalah in a kaffah ways.
Key word: jizwaf, fintech syariah, ziswaf overseas, remittance I.
INTRODUCTION Islam is the second-largest religion in the world, there are around 1.9 billion Muslims spread across the world in 2020.1 According to the research conducted by PEW research center based in Washington D.C., 1 World Population Review 2 Brian J.
Grim, Mehtab S. Karim, The Future Global Muslim Population Projections for 2010shows that the world's Muslim population is expected to increase by about 35% in the next 20 years starting from 2010 about 1.6 billion to 2.2 billion in 2030.2 Annual growth rate is 1.5% on average.
In case the trend continues , the number of Muslims will reach 26.4% of 2030, PewResearchCenter| Forum On Religion & Public Life, Washington DC, January 2011 http://doi.org/10.21776/ub.blj.2021.008.02.07 mailto:umi_khaerah@staff.uns.ac.id mailto:kukuhmurtifhuns@staff.uns.ac.id mailto:pujifhuns@staff.uns.ac.id mailto:Pranoto@staff.uns.ac.id Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… | 283 the world's total population or around 8.3 billion by 2030.
It can bolster up the amount of collecting Ziswaf around the world which zakat is required for every Muslim who has met the requirements of hisab and haul as mentioned in the Al-Qur’an and Al-hadith.
The laws of zakat, infaq, waqf and alms are explained in several arguments in the Quran, as followed: “The example of those who spend their wealth in the cause of Allah is that of a grain that sprouts into seven ears, each bearing one hundred grains.
And Allah multiplies ˹the reward even more˺ to whoever He wills.
For Allah is All-Bountiful, All-Knowing” Q.S Albaqarah :261 “ “Establish Prayer and dispense Zakah.
Whatever good deeds you send forth for your own good, you will find them with Allah.
Surely Allah sees all that you do.
(Q.S Al-Baqarah: 110)” “Spend in the cause of Allah and do not let your own hands throw you into destruction ˹by withholding˺.
And do good, for Allah certainly loves the good-doers.– (Q.S Al-Baqarah: 195)” “They ask you ˹O Prophet in˺ what ˹way˺ they should donate.
Say, “Whatever donations you give are for parents, relatives, orphans, the poor, and ˹needy˺ travellers.
Whatever good you do is certainly well known to Allah.”– (Q.S Al-Baqarah: 215).” Paying zakat is prioritized in the domicile of muzakki (a person or an entity liable to the requirement to pay zakat responsibilities on property ownership that has achieved the nishab and haul)3 or muzakki’s family, while sadaqah, infaq and waqf can be paid to outside the domicile 3 Sofyan Hasan and Taroman Pasyah, ‘Legal Aspects of Zakat Empowerment In Indonesia’ (2019) 3(1) Sriwijaya Law Review.
4 Dr tanpa gelar Husna Ahmad , Islam and Water, The Hajjar (r.a.) Story and Guide, Global One 2015, London 2011 because Muslims are like one body as the saying of Prophet Muhammad (saw):4 “Muslim Ummah is like one body.
If the eye is in pain, then the whole body is in pain and if the head is in pain then the whole body is in pain.” The several factors encouraging Muslims to pay Ziswaf are trust, accessibility, availability, awareness and literacy.5 Muslims who have a high level of religiosity tend to do what their religion commands without any doubt, but religiosity is not enough to driving people pay Ziswaf, without accessibility and literacy, it can’t be works.
Although the Baznas (Indonesian National Zakat Charity) institution is trustworthy, if the people find it difficult to access devices, the effectiveness of collecting ziswaf will not be optimal as well as if the people lack literacy.
Some experts argue that the accessibility dimension greatly affects the Index of Sharia Financial Inclusion in Indonesia.6 To provide accessibility, Baznas has collaborated with the largest and the most popular payment gateways, e-commerce and fintech crowdfunding in Indonesia such as OVO, Gojek, Kitabisa.com, Shoopee.co.id, Tokopedia.com etc.
to optimize the collecting of Ziswaf.
The result was effective based on the survey in 2019 by Baznas, the collection of Ziswaf exceeds the target than expected.
According to the press release of Indonesian National Zakat Charity (Baznas), posted on 5 Finteching remittances in Paradise: a path to sustainable development+ by Hongjoo Hahm, Tientip Subhanij and Rui Almeida* October 2019 6 Sanjaya, I Made dan Nursechafia.
Keuangan inklusif dan Pertumbuhan Inklusif: Analisis antar Provinsi di Indonesia.
Buletin Ekonomi Moneter dan Perbankan, (2016).
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 284 | Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… Baznas Official Website in April 20207, the accumulation of Ziswaf collected in 2019 was approximately Rp.
41 billion which was 102,5% of the target (Rp.
40 billion).
It can give opportunity to Baznas to provide easy access to Muslims around the world especially from developed countries to donate Ziswaf through Baznas platform without using any complicated routes.
Based on the foregoing background, a study related to what is the Islamic fintech model can be a solution of the collecting Ziswaf overseas and what should be prepared so that international Islamic fintech can provide a Baznas donate in their platform.
II.
LEGAL MATERIALS AND METHOD This research is qualitative research, through normative approach, which is a scientific research method that combines two rational and empirical streams (observations) by identifying empirical facts on the muamalah problem.
This research uses primary legal materials namely regulations, the principles of Islamic law in positive law, the opinions of scholars on Islamic economics, and the fatwas of the scholars and secondary legal materials in the form of expert theories and opinions.
All are examined with a descriptive normative method that aims to find solutions / alternatives to problem solving so that muamalah can run optimally but still subject to sharia principles.
III.
RESULT AND DISCUSSION In today's globalized world, generosity no longer begins and ends at home.
For example, in Australia for example, more than 7https://baznas.go.id/Press_Release/baca/BAZNAS_ Ajak_Masyarakat_Zakat_Digital/531 (access on 26 October 2021) 8 Silver, Natalie.
2019.
“When Charity No Longer 4,500 charities, or roughly 10% of all charities, were estimated to be working overseas in 2017.
8 This shows that worldwide charitable organizations are expanding.
If it connected with the virtue of charity in Islam, then internationalize zakat, infaq, sadaqah, and waqf (ziswaf) should be highly appreciated by Muslims, especially for Indonesia, which has the world's biggest Muslim population.
In Indonesia, the management of zakat, infaq, alms and waqf (Ziswaf) is carried out by the government by forming the Zakat Management Organization (OPZ).
The OPZ consists of the National Amil Zakat Agency (Baznas) at the central, provincial, district or city levels, the Amil Zakat Institution (LAZ), the Zakat Management Unit (UPZ) and individual amil zakat or groups of people who are licensed by the authority.
Domestically, OPZ has made attempts to manage Ziswaf such as collaborated with several Indonesian’s largest fintechs to assist the collection of ziswaf by provide Baznas donate in their platform.
In addition, the agreement must adhere to the Regulation of the National Zakat Agency of the Republic of Indonesia No.
6 of 2018 about Guidelines for the Execution of Zakat Management Cooperation, which, in essence, must be governed by Sharia principles in its implementation.
Despite the fact that fintech in collaboration with baznas in some ways contrary to sharia principles, such as receiving interest on bonds issued by Bank Indonesia through fintech float funds, however, based on the results of Baznas research, it was proven that the ziswaf funds Begins and Ends at Home: The Australian Government’s Regulatory Response to Charities Operating Overseas.” Adelaide Law Review 40(3):755–82 https://baznas.go.id/Press_Release/baca/BAZNAS_Ajak_Masyarakat_Zakat_Digital/531 https://baznas.go.id/Press_Release/baca/BAZNAS_Ajak_Masyarakat_Zakat_Digital/531 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… | 285 collected exceeded the target9.
It is because the number of users and enthusiasts of popular fintech is very large, for example in the Gojek application, per semester 1 of 2019 has been downloaded by around 155 million users.
10BAZNAS recorded that there were 42,030 muzaki who distributed Zakat, Infaq and Alms with a total of 75,471 transactions via digital platforms in 2019.
Based on the amount, an accumulation of approximately Rp.
41 billion exceeded or exceeded the target amount of Rp.
40 billion.
The success of fintech-based ziswaf collection and management may now be expanded to overseas.
There are several Islamic fintech alternatives that can be used to collect Ziswaf.
1.
Crowdfunding cryptocurrency by blockchain-based system Islamic fintechs is available to collect Ziswaf through crowdfunding cryptocurrency, for instance FINTERRA and GlobalSadaqah.
Finterra provides innovation in zakat payments using blockchain technology with promises on digital accountability, security, transparency and efficiency across its ecosystem.
Finterra has designed the world's largest Waqf financing platform and made it available to the general public, revival of Waqf around the world.
While, GlobalSadaqah collaborates with SINEGY and LuxTag to come together to facilitate cryptocurrency donations on their platforms.
The main objective of this collaboration is to raise awareness and educate the community of Muslim cryptocurrency owners about the need to 9 Umi Pati, Pujiyono Pujiyono and Pranoto Pranoto, ‘Sharia Fintech as a Sharia Compliance Solution in the Optimization of Electronic-Based Mosque’s Ziswaf Management’ (2021) 8(1) PADJADJARAN Jurnal Ilmu Hukum (Journal of Law).
pay Zakat on their digital assets.
GlobalSadaqah is an Islamic Social Finance Platform that focuses on CSR, Management of Zakat and Waqf.
It features various campaigns from trusted and verified partners from around the world.
2.
Payment application One of the Islamic fintech payments is Payhalal, the world's first Shariah compliant Islamic payment gateway, which facilitates all payment transactions by eliminating Riba 'and Gharhar.
Payhall also serves zakat and shadaqah.
The requirements are user must have a valid email address, valid debit, credit card or bank account or even loaded via prepaid card and Bank account with online facilities.
3.
Transfer peer to peer remittance Money transfer assisted by FinTech is a start-up that provides currency transfer services online from one account holder to another, or from the same account owner, from one area or nation to another.
Adab Solutions, for example, is a fintech remittence using cryptocurrency based in the UAE, the only cryptocurrency exchange designed globally to comply with sharia law.
This makes it possible to receive money from a different transferred currency without actually crossing the border.
These transactions work in the opposite direction to be paired, not transferred or exchanged so as to reduce transaction costs.11 TransferWise, a company based in the United Kingdom (UK) and founded in 2011.
To use the 10 A survey by alvara research center in July 2019 published in bisnis.com 11 Finteching remittances in Paradise: a path to sustainable development+ by Hongjoo Hahm, Tientip Subhanij and Rui Almeida* October 2019 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 286 | Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… TransferWise service which allows money transfers in more than 40 currencies, the sender only needs to create an account on the company website or application and linking it to their official bank account or payment card.
Although TransferWise does not operate as a bank, the company's UK regulations keep all customer funds separate from money used to conduct their daily business.
Another fintech remittance is Western Union, a global leader in cross-border, cross-currency money movement and payments, with connections to over 200 nations and territories, as well as over 130 currencies.
In the fifth annual FinTech Breakthrough Awards for 2021, WU received the “Consumer Payments Innovation Award.”12 WU was recognized for its 'plug and play' technology, which is being utilized by an increasing number of financial institutions to provide seamless, convenient, dependable, and rapid international money transfer capabilities to its clients.
a.
Analysis of overseas ziswaf management using cryptocurrency crowdfunding through blockchainbased system The advantage of adopting blockchain in fintech is that it is straightforward to identify transaction errors since transactions done using blockchain technology are very difficult to change (immutable), easy to trace, and all users (transparent) can observe all 12 Western Union Wins Fintech Breakthrough Award For ‘Consumer Payments Innovation’ Press Release by Western Union published on March 16,2021 13 Mustafa Raza Rabban, Shahnawaz Khan, Eleftherios I, Thalassinos, “FinTech, Blockchain and Islamic Finance: An Extensive Literature transactions.
Cryptocurrency, on the other hand, is electronic money that may be used to replace fiat currency as a means of exchange by utilizing blockchain as a transaction security guarantee.
Some Muslim clerics, however, are opposed to the usage of cryptocurrencies in the Islamic economy.
One of them is Professor Ahmed Kamel Midin Merra, the former Dean of the Institute of Islamic Banking and Finance at the International Islamic University of Malaysia.
He believes that in order for cryptocurrencies to be acknowledged in the Islamic financial industry, they must have intrinsic value and not simply be a commodity tool13.
The famous Egyptian mufti, Shaikh Shaki Alam, is another Muslim thinker who opposes cryptocurrencies.
14He publicly opposes cryptocurrencies, claiming that it breaches Sharia precepts.
Sharia law is violated for a number of reasons.
To begin with, there is an element of gharar (uncertainty).
Second, the real value of money is unknown.
Third, prices are quite volatile.
Fourth, due of their anonymity, they are frequently utilized in illicit activities.
Fifth, there are differences in valuation methodologies and the determination of worth.
Sixth, it is not regulated by a central bank.
Seventh, bitcoin volatility is extremely high since it may be impacted by a number of factors such as hackers and technology issues.
As a result, Bitcoin may only be recognized as a means of exchange in Islam if it can give assurance in exchange rate stability, protection or Review”, International Journal of Economics and Business Administration, Vol.
VIII, Issue 2, 2020, hal 75.
14 Nisar Ahmed, Khadija Rasheed, dan Muhammad Talha, “Islamic Banking Perspective on Shariah Compliant FinTech (Financial Technology) Model”, Islamic Banking Fintech, 2019, p. 29.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… | 287 guarantee from misuse, and other benefits, and does not violate the laws of a country.15 Stable currencies are the greatest solution to bitcoin's extreme volatility.
A stablecoin is a cryptocurrency whose value is determined by pegging it to the price of another asset.
Stablecoins can be linked to a variety of assets that are backed in a 1:1 ratio by money stored in bank accounts.
Companies must deposit an equivalent amount of fiat currency, such as USD, in a bank account before issuing this cryptocurrency.
By tying these currencies to real-world assets, in this example US dollars, they may avoid the price volatility that is common in the cryptocurrency trading market.16 CBDC stands for Central Bank Digital Currencies, which is a new form of currency being piloted by several governments across the world.
It is a new type of stablecoin that will be issued in numerous nations.
CBDCs differ from traditional currencies in that consumers anticipate CBDCs to be able to leverage new payment technologies, primarily blockchain, to enhance payment efficiency and decrease costs.
CBDCs vary fundamentally from digital currencies.
The distinction between CBDC and digital currency is the degree of centralization.
CBDC is issued by the central bank in the currency of the local unit of account and may be used as a medium of exchange and deposit.
Creation process, which is centralized under the control of the central bank and its status as legal tender, the CBDC will ensure that the public has access to legal tender if for some reason cash is not 15 Ibid.
16 Dirk Bullmann, Jonas Klemm, Andrea Pinna, Occasional Paper Series In search for stability in crypto-assets: are stablecoins the solution?, Europan Central Bank paper series, 2019, hal 10 17 Soehartono and U Khaerah Pati, ‘The Regulation of Cryptocurrency Investation in Indonesia’ (2019).
widely available.
As legal tender, this means that cash and CBDC will be legally recognized as a form of payment and represent claims in the central bank/government.
Bank Indonesia is still in the early stages of developing a CBDC.
The usage of CBDC as a stable coin that may replace bitcoin would create several options for controlling ziswaf on a global scale.
Moreover, In Indonesia, cryptocurrency is not recognized as a legal payment method, although it is permitted as an investment tool.
Article 34 letter an of Bank Indonesia Regulation Number 18/40 / PBI / 2016 on Implementation of Payment Transactions for Payment System Service Providers Junto Article 8 paragraph 2 of Bank Indonesia Regulation Number 19/12 / PBI / 2017 concerning The Application of Financial Technology states that Payment System Service Providers are prohibited to process payment transactions using virtual currencies.17 b.
Analysis of overseas ziswaf management using Islamic fintech payments The term "Islamic fintech" refers to the combination of technology and Islamic finance.
This implies that any fintech product or service must follow the rules derived from the Qur'an and Sunnah, collectively known as Shariah.
True to its fintech moniter, its Shariah-compliant financial goods and services are distributed digitally via innovative digital platforms known as Omnichannels.18 Baznas can collaborate with 18 Hassnian Ali, Hazik Mohamed, Hadia Saqib Hashmi, Muhammad Hassan 4Abbas2Stellar Consulting Group, Singapore1,3,4Minhaj University, Lahore (COMSATS Journal of Islamic Finance) Vol 4(2), 2019, pp.
29-53 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 288 | Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… international Islamic fintech using mobile money services.
They offered by mobile network providers and consist of electronic wallets that are linked to the customer's mobile phone number.
Individuals may use their mobile phones to transfer payments, pay bills, and deposit and withdraw cash utilizing these e-wallets (ADB, 2016).
However, in order for foreign fintechs to be transacted in Indonesia, there are several rules that must be followed.
There are several Bank Indonesia Regulation (PBI) provisions that restrict the use of foreign fintech transactions in Indonesia, inter alia, Article 6 PBI No.19 / 12 / PBI / 2017 concerning the Implementation of Financial Technology which requires Financial Technology Providers other than banks to fulfill Payment System Service Provider category, must be an Indonesian legal entity, Article 4 PADG (Member Regulation of the Board of Governors) No.19 / 15 / PADG / 2017 concerning Procedures for Registration, Submission of Information and Monitoring of Financial Technology Operations states that "Financial Technology Operators other than banks fulfill the category of Payment System Service Providers must be an Indonesian legal entity ", Bank Indonesia Regulation Number 20/6 / PBI / 2018 of 2018 concerning Electronic Money Article 38 Every Operator is required to make payments for payment transactions using Electronic Money issued and transacted in the region of the Unity of the Republic of Indonesia (NKRI).
Article 39 states that Electronic Money issued outside the territory of the Indonesia (NKRI) can only be transacted in the NKRI by using a payment channel connected to a national payment gateway and it also required to cooperate with a licensed Payment System Service Provider such us commercial bank and connected it to the national payment gateway and the last but not least, electronic money managers (either fintech payments or remittances) must adhere to the laws controlling the required use of rupiah for payment transactions conducted inside the Republic of Indonesia's territory.
Violations of the foregoing restrictions are punishable by up to one year in prison and a fine of Rp200,000,000.00, according to Article 33 paragraph (1) of the Law on Currencies (two hundred million rupiah).
c. Analysis of overseas ziswaf management using Transfer peer to peer remittance Fintech application in remittance services is described as the use of alternative payment mechanisms for money transfers, such as the internet or mobile phones.
Traditional remittance service providers (traditional RSPs) on the other hand, comprise entities whose services are hired through bank branches, brick-and-mortar agents, or call centers.
The entry point through which their services are made available is what distinguishes these two sorts of enterprises.
Fintech businesses use a variety of business models to facilitate crossborder transfers.
According to the Alliance for Financial Inclusion (AFI), they include internet platforms (including peer-to-peer platforms), block chain-based technology, and mobile money.
The phrase "online platforms" refers to businesses that only offer online remittance services through mobile applications or websites.
Senders must link their bank accounts to the site in order to transfer money, while recipients can receive payments in a variety of ways (cash included).
Peer-to-peer systems are used by several internet platforms.
This permits money to be received in a currency other than the one sent without the cash actually Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… | 289 crossing borders The expansion of the remittance economy has had a beneficial influence and has resulted in concrete advantages for people all across the poor globe.
19 Adams and Page (2005) proved that remitting helps to reduce poverty in a survey of 71 developing nations, finding that an average 10% per capita increase in remittances resulted in a 3.5 percent decrease in the percentage of persons living in poverty.
Remittances account for an average of 2% of GDP in developing nations overall, also 5– 6% in low-income countries (World Bank 2011).20 Remittances can assist in addressing the fundamental causes of poverty and inequality.
In 2012, India and China each received more than $60 billion in remittances; remittance payments alone accounted for 47 percent of Tajikistan's national GDP.
Remittance payments amount to more than foreign aid for nations such as Bangladesh, Senegal, and Mexico.21 According to the World Bank22, official reported remittances to poor nations totaled $530 billion in 2012.
Remittance payments sent from the United Kingdom were $23.16 billion in 2012, and they are anticipated to grow by 8% in 2013 and 10% in 2014.
With remittance transfer, fintech can improve the consumer experience.
Mobile money and online wallets can give comprehensive insight into payment progress and delivery at the front-end.
At the back end, 20 Adams RH Jr and Page J (2005) ‘Do international migration and remittances reduce poverty in developing countries?’ World Development 33 (10), pp1645–69.
21 Giving back to communities of residence and of origin: An analysis of remittances and charitable donations in the UK.
Centre for Charitable Giving and Philanthropy/Cass Business School/Trust for London.January 2013 Publisher: Centre for Charitable Giving and Philanthropy/Cass Business School/Trust for London in addition to novel solutions including traditional settlement, distributed Ledger Technology (DLT) or blockchain tokenbased payments provide decentralized alternatives to correspondent banking's account-based payments.
As a result, transactions are: (I) more quickly, through real-time settlement and bidirectional messaging between banks; and (ii) more securely.
(ii) certain and transparent, owing to the disclosure and validation of rich information prior to settlement (aided by Big Data and Artificial Intelligence, AI), facilitating compliance with AML/CFT and KYC regulations, as well as credit scoring; (iii) and cost-effective, owing to lower processing and liquidity costs.
(Liquidity on demand, high StraightThrough-Processing (STP) rates, and less dependency on nostro accounts for worldwide payments).23 Fintech start up joined the internet market in the 2010s, concentrating on various customer bases, including developed nations (TransferWise), African and working-class migrants (WorldRemit), and US-based immigrants (Remitly).
Their cost-effectiveness derives from: avoiding cross-border payments and currency conversion by matching transfers flowing in opposite directions (Transferwise); (ii) pricing differentiation based on volume and speed (Remitly offers fee-free transfers to India for transfers of 22 World Bank (2011) Migration and Remittances Factbook 2011 (second edition) World Bank, Washington DC 23 IMF Working Paper Western Hemisphere Department Fintech Potential for Remittance Transfers: A Central America Perspective Prepared by Julia Bersch, Jean François Clevy, Naseem Muhammad, Esther Pérez Ruiz, and Yorbol Yakhshilikov1 Authorized for distribution by Patricia Alonso-Gamo June 2021 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 290 | Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… $1,000 or more); and (iii) a strong emphasis on mobile-to-mobile transfers (WorldRemit).
These businesses have created a worldwide network involving financial institutions and mobile telecom providers, enabling for precise payment monitoring, virtually instantaneous payments, and dependence on artificial intelligence and machine learning for identification and secure regulatory compliance (reducing costs).
The requirements for international Islamic payments and remittance fintech to be transacted using the rupiah currency are establishing a legal entity in Indonesia and collaborated with commercial banks as determined by Bank Indonesia or directly collaborated with Bank Indonesia.
The requirements are quite strict for foreign fintechs.
But between the 3 (three) types of fintech mentioned above, remittance fintech is the best way to collect Ziswaf directly to Baznas account.
Because it is peer to peer transfer without an inter-state bank institution to act as an intermediary in the currency exchange process, it works only by linking the account made in company website to the user official bank account or payment card.
Fintech remittances that have collaborated with several countries can easily diversify their currencies.
In Indonesia, in 2018, BI has collaborated with a fintech remittance called wallex, a fintech that offers FX rates in 30 global currencies (including rupiah and baht) to more than 180 countries.
It charges a minimum fee of IDR 100,000 (US $ 6.85) per transfer of any amount.
Morover, In mid-2021, Bank Syariah Indonesia has collaborated with Western Union, a global leader in cross-border, crosscurrency money movement and payments, to 24 Ghufron A Mas‟adi, Fiqh Muamallah Kontekstual, PT.
Raja Grafindo Persada, Jakarta, 2005, Hlm.
149 increase the remittance transaction network in more than 190 countries.
Discussion about remittance transactions from an Islamic point of view, Currency exchange, commonly known as foreign exchange, is governed by Islamic law, namely Al-Sharf.
Al-Sharf literally means Al-Ziyadah (additional) and Al'adl (balanced).24 According to the definition of fiqh, Ba'i Sharf is trading currency for currency (gold for gold).25 There are several condition of Al-Sharf's Terms26 1.
Before the two parted ways, each party gave up the items.
This criterion is in place to prevent the incidence of usury nasi'ah.
If none of them hands up the items until the two of them split, the Al-Sharf contract is null and invalid.
2.
If the Al-Sharf contract is carried out on similar products, it must be balanced, even if the quality or print model differs.
3.
The Khiyar requirements do not apply to the Al-Sharf contract since it is a real transaction involving the sale and purchase of two things for cash.
Being in khiyar circumstances indicates that you should sell and purchase for cash.
4. is hoped that BI can collaborate with Islamic fintech remittance which has many networks so that Baznas can cooperate with to put Baznas donate in their Platform.
The Fatwa of DSN 28/DSNMUI/III/2002, issued by the National Sharia Council, specifies a fatwa on Al-Sharf to be followed as a guideline.
The Fatwa stated that 25 Abdul Mujieb, Kamus Istilah Fiqh, PT.
Pustaka Firdaus, Jakarta, 1995, Hlm.
34 26 Ibid Ghufron, hal 150 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… | 291 currency buying and selling transactions are permitted under the following conditions: a.
Not for speculative purposes (chance) b.
Transactions are required, or simply in case (savings) c. If the transaction is performed in cash against a similar currency, the value must be the same (at-taqabudh).
d. If different types, it must be done in cash and at the prevailing currency rate at the time of the transaction.
In addition, Spot transactions are permitted, which are transactions of buying and selling foreign currencies for delivery at that time (over the counter) or settlement within two days, with the goal of profit but not speculation, and are carried out on the basis of willingness between the seller and the buyer.
According of the Fatwa, it can be conclude that as long as fintech remittance activities conform with the Fatwa, Baznas can work with it even if it is not a sharia fintech.
However, author highly suggested that Baznas collaborate with sharia remittance fintechs that already have networks in many countries, so that all types of operations are carried out in line with sharia principles in a kaffah way.
Moreover, it can help expand the sorts of sharia fintech remittances, so that they may compete with conventional and become partners with sharia financial institutions and national baznas all over the world.
Based on the analysis, author summarizes the comparison of the advantages and disadvantages of the 3 types of alternatives as a means of collecting and boiling Ziswaf overseas.
Table 1 Comparison of the advantages and disadvantages of the 3 types of alternatives as a means of collecting and processing Ziswaf overseas Advantages and Disadvantages Crowdfunding cryptocurrency by blockchain-based system Fintech payment Fintech remitance Advantages More efficient because there is no need for financial authority intermediaries  only sharia fintech that is fully subject to sharia principles  currently BI has collaborated with the most popular fintech remittance in the world.
 Users are spread across several countries because it provides ease of exchange of money between countries.
 If the business activities are only remittance and the benefits are in the form of fees, then the operational activities are halal according to the fatwa of DSN MUI even though it is not Sharia Fintech.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 292 | Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… Advantages  High volatility  Some countries still prohibit crypto as a means of payment transactions including Indonesia.
 Some scholars argue that cryptocurrencies have elements that are contrary to sharia principles, one of which is speculative.
 Some fintech payments in their operations have haram elements such as receiving deposit interest from floating funds placement in National Securities.
 A representative office must be established, incorporated in Indonesia and the apps should be connected with payment gateway of commercial banks in Indonesia  A representative office must be established, incorporated in Indonesia and the apps should be connected with payment gateway of commercial banks in Indonesia IV.
CONCLUSION AND SUGGESTION There are three methods for managing transnational ziswaf that have been used globally, i.e, fintech crowdfunding cryptocurrency using a blockchain-based system, Payment via foreign fintech and fintech transfer peer-to-peer remittance, of the three categories, the author is preferable to the usage of fintech remittance, which has several of advantages that are, being more popular, such as Western Union which has collaborated with Islamic banks in some Islamic-majority countries, because as long as fintech remittance only provides currency exchange services, then the activity is halal even though fintech is not sharia fintech.
While fintech payment will be fully subject to sharia principles as long as in the form of sharia fintech payment.
In addition, In Indonesia, sharia fintech is not as wellknown as conventional fintech.
Moreover, Bank Indonesia and Islamic banks, on the other hand, continue to work with the largest conventional fintech remittances such as Wallex and Western Union.
It is envisaged that in the future, sharia fintech remittances would flourish, have networks all over the world and collaborate with sharia financial institutions and national baznas all over the world.
V. ACKNOWLEDGEMENT This paper was supported by Universitas Sebelas Maret (Research Grant 2021) Business Law and Digital Economy Group Research, Department of Civil Law Faculty of Law Universitas Sebelas Maret, Surakarta, Indonesia.
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Dirk Bullmann, Jonas Klemm, Andrea Pinna, Occasional Paper Series In search for stability in crypto-assets: are stablecoins the solution?, Europan Central Bank paper series, 2019 Hasan, Sofyan and Taroman Pasyah, ‘Legal Aspects of Zakat Empowerment In Indonesia’ (2019) 3(1) Sriwijaya Law Review Hassnian Ali, Hazik Mohamed, Hadia Saqib Hashmi, Muhammad Hassan 4Abbas2Stellar Consulting Group, Singapore1,3,4Minhaj University, Lahore (COMSATS Journal of Islamic Finance) Vol 4(2), 2019 Hongjoo Hahm, Tientip Subhanij and Rui Almeida , Finteching remittances in Paradise: a path to sustainable development, UN ESCAP, October 2019 (Working Paper Series) Julia Bersch, Jean François Clevy, Naseem Muhammad, Esther Pérez Ruiz, and Yorbol Yakhshilikov1, IMF Working Paper Western Hemisphere Department Fintech Potential for Remittance Transfers: A Central America Perspective Prepared by Authorized for distribution by Patricia Alonso-Gamo June 2021 Mustafa Raza Rabban, Shahnawaz Khan, Eleftherios I, Thalassinos, “FinTech, Blockchain and Islamic Finance: An Extensive Literature Review”, International Journal of Economics and Business Administration, Vol.
VIII, Issue 2, 2020 Nisar Ahmed, Khadija Rasheed, dan Muhammad Talha, “Islamic Banking Perspective on Shariah Compliant FinTech (Financial Technology) Model”, Islamic Banking Fintech, 2019 Sanjaya, I Made dan Nursechafia.
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Soehartono and U Khaerah Pati, ‘The https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22Suryani+%22 https://www.google.co.id/search?tbo=p&tbm=bks&q=inauthor:%22Hendriyadi%22 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 294 | Pati, Tejomurti, Pujiyono, Pranoto Fintech Remittance Syariah… Regulation of Cryptocurrency Investation in Indonesia’ (2019) Umi Pati, Pujiyono Pujiyono and Pranoto Pranoto, ‘Sharia Fintech as a Sharia Compliance Solution in the Optimization of Electronic-Based Mosque’s Ziswaf Management’ (2021) 8(1) PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) Regulations Law No.
23/2011 on Zakat Management The Regulation of the National Zakat Agency of the Republic of Indonesia No.
6 of 2018 about Guidelines for the Execution of Zakat Management Cooperation The Fatwa of DSN 28/DSN-MUI/III/2002 Bank Indonesia Regulation Number 18/40 / PBI / 2016 on Implementation of Payment Transactions for Payment System Service Providers Bank Indonesia Regulation Number 19/12 / PBI / 2017 concerning The Application of Financial Technology PBI No.19 / 12 / PBI / 2017 concerning the Implementation of Financial Technology No.19 / 15 / PADG / 2017 concerning Procedures for Registration, Submission of Information and Monitoring of Financial Technology Operations Bank Indonesia Regulation Number 20/6 / PBI / 2018 of 2018 concerning Electronic Money Internets Survei oleh Alvara Research Center pada bulan Juli 2019 publish di bisnis.com Western Union Wins Fintech Breakthrough Award For ‘Consumer Payments Innovation’, Press Release by Western Union published on March 16,2021
20 INDONESIAN SALVAGE LAW WITHIN THE FRAMEWORK OF CONTEMPORARY MARITIME LAW Dhiana Puspitawati Lecture at Faculty of Law Brawijaya University Email: dhiana@ub.ac.id ABSTRACT Located in a strategic position, that is between two great oceans and two land masses have made Indonesia a centre of international trade and shipping.
In fact, 90% of international trades are carried out through the ocean.
It is therefore crucial to assure that the activities in carrying goods across the ocean are incident free.
However, if accident happens, assistance from professionals to preserve items of property is desirable.
In such, salvage law emerged.
This paper discusses comprehensively Indonesian salvage law within the framework of contemporary maritime law.
While Indonesian maritime law is mostly based on its national law on the carriage of goods by the sea, in fact, the development of maritime law is highly affected by international practices which are largely based on international conventions and regulations.
This research finds that while Indonesian salvage law can be found in Book II Chapter VII article 545-568k Wetboek Van Koophandel or known as Kitab Undang-undang Hukum Dagang (KUHD), which focused narrowly on the value of salved property as the primary measures of success, yet Indonesian salvage law has not been developed in accordance with current international salvage law, which adopted a broader and more balanced approached in both commercial and environmental aspects.
Although it is believed that such approached is ―culturally unrecognized‖ in Indonesia, this research argued that since Indonesian waters are part of international waters, all process by waters including salvage should confirm the relevant international practices and regulations.
While Indonesia has taken out salvage law from KUHD and regulates it within Act Number 17/2008 on navigation, however, such act only provides one article for salvage stating that salvage will be regulates further by Ministry Regulation.
Untill this paper was written no such government regulation produced yet by Indonesia.
Since Indonesian waters is the centre of international navigational routes, this paper argued that it is an urgent need for Indonesia to have appropriate salvage law in place, so it can develop dinamically from shipping practice and confirm with international regulations in salvage.
Keywords: salvage law, maritime law, commercial and environmental.
I.
INTRODUCTION Indonesia is located at a cross-road position (posisi silang), that is between two land-masses of the world, Australia and Asia and between two great waters of the Indian and the Pacific Oceans.
It is also a place where straits used for international navigation are located.
Such strategic mailto:dhiana@ub.ac.id 21 location of Indonesia has made Indonesia as a centre of international trade routes.
1 The correlation between international trades and transportation is obvious since without transportation international trades cannot be conducted.
Although there are at least six modes of transportation, 2 ocean transportation is somehow still preferable.
While time utility and cost utility are two important factors in determining which modes of transportation will be used, ocean transportation offers high capacity and quality.
In addition to these, although the fix cost is quite high variable cost is extremely low.
Thus, 90% of international trades are carried out through the ocean.
Since Indonesian waters can be considered as a short cut for international trades from the south going to north and vice-versa, crowded ocean traffic often occur in Indonesia.
While this might brings advantages for Indonesia, especially related to economic factor, it also cause problem as crowded ocean traffic often lead to sea accident such as collision, fire, grounding and any other similar accident.
In addition to this, unpredictable whether condition is also contributed to sea accident.
Therefore, for 1 Puspitawati, Dhiana, Hukum Laut atau Hukum Maritim?‘, Jawapos (Surabaya), 22 May 2006 2 Truck, rail, ocean, air, pipeline (for gas and oli) and intermodal parties involved in international trade using ocean transportation it is crucial to assure that the activities in carrying goods across the ocean are incident free.
However, if accident happens, assistance from professionals to preserve items of property is desirable.
In such, salvage law emerged.
This study analyzes comprehensively Indonesian salvage law within the framework of contemporary maritime law.
While contemporary international salvage law adopts wider and more balanced approach in both commercial and environmental aspect, Indonesian salvage law still focused narrowly on the value of salvaged property as the primary measures of success.
This research argued that since Indonesian waters are part of international waters, all process by waters including carriage of goods by sea should confirm the relevant international practices and regulations.
II.
METHODE OF RESEARCH This research used documents of legal instruments relating to Indonesian salvage regulations.
In particular, Indonesian Shipping Law, Act no 17/2008, in specific, provisions regarding salvage were analized.
It used juridical normative method and 22 furthermore also look at the implementation of salvage convention 1989.
This paper will analyses te development of international salvage law framework, then discuss Indonesian salvage law.
Certain articles in mass media, as well as academic papers articles were extensively used Indonesian ports official as well as shipping company were interviewed to capture their opinions, thoughts and feelings on specific issues.
The analysis of salvage regulations and national act as well as regulations and their implementation will make a significant contribution to formulate proposal to salvage law.
III.
RESULT AND DISCUSSION A.
The Origin of Maritime Law and its Scope As with many other aspects of law, it is difficult to make a precise definition and to draw exact lines as to what falls within the definition one decides on and what falls outside.
Maritime law emerged from the need of maritime states in having universal international regulations concerning the operation of ships and all of its legal implication arising from it.
Thus, it is submitted that the existence of maritime law have been shaped by practical needs, rather than by pure academic activities.
Therefore, it develops rapidly.
Although from its very beginning maritime law has been international 3 and national maritime law is usually the implementation of international maritime law in national sphere, 4 in fact historically international maritime law was rooted from British law.
5 As one of developed states having many colony, United Kingdom often transport raw materials from its colony states to United Kingdom through the ocean by ships.
During this process supporting regulations were formulated.
Even untill nowdays, such regulations are still implemented during the carriage of goods by sea.
6 Although there is no official definition of Maritime Law, but it can be described as “the set of legal rules, concepts and process that relates to navigation and process by water.
Traditionally, the focus of the law is the ship, and the legal incident that arise from its operations, which are plentiful”.
7 Since international trade 3 Bjune, Catherine, Introduction to Maritime Law, 2007, The international nature of maritime law can be noticed from, inter alia, ship‘s mobility which easily moving from one jurisdiction to another; a ship always have crews from various nationality; the language and terms used are international (Incoterm) and the source of international maritime law is international conventions.
4 Bjune, 2007, ibid.
5 Gordon, Robert, ‗Marine Insurance‘, Paper presentes at Shipping Course, BI Norway dan UWM, Surabaya, Oktober-Desember (2007) 6 Ibid.
7 Bjune, 2007 n.Error!
Bookmark not defined.
23 involves the movement of goods across the countries each having different legal rules, parties in international trade needs uniform regulation setting up legal rules, concept and process that relates to navigation and process by water.
This is what maritime law is all about.
It focuses on ships and legal incidents arising from its operations.Maritime law includes two aspects, public and private law.
The examples of private aspect of maritime law includes when there is a dispute involving a breach of contract from one party within carraige of goods agreement; the responsibility of carrier and also the rights and obligations of parties involving in the process of carriage of goods by sea.
On the other hand, the public aspect of maritime law includes when it deals with ship registration, the management of ship crew, safety of ships and other things relating to the interests of states such as marine environment.
Salvage is one of maritime law‘s scope having both aspects, private and public.
Private aspect of salvage is when it deals with proportionality of salvage reward and marine insurance.
Whereas public aspect of salvage is when it involves the mechanism of salvage itself.
B. Indonesian Maritime Law Since it is argued that national maritime law is mostly the implementation of international maritime law, therefore, the practice of maritime law all over the world should be similar although not identical.
However, in Indonesia, maritime law is termed as private law of the sea and included within the scope of Indonesian commercial law system.
8 While Indonesian commercial law is the form of lex specialis of Indonesian private law, Purwosutjipto further argued that Indonesian commercial law can be defined as law of obligation, which arises from company related laws.
9 Thus, it is argued that it is insufficient to put maritime law within the scope of Indonesian commercial law.
This is because the origin of maritime law is international law and once more it should be remembered that national maritime law is the implementation of international maritime law.
Whereas commercial law and private law are laws that developed originally within the scope of national law.
Thus, it is not surprisingly that maritime law in Indonesia did not developed in accordance with international development in the same subject matter.
8 Read further Purwosutjipto, HR, Pokok-Pokok Hukum Dagang (2000).
9 Ibid.
24 Indonesia maritime law is provided within the Wetboek Van Koophandel or known as Kitab Undang-undang Hukum Dagang (KUHD).
KUHD was adopted from the Netherland Law and come into force in Indonesia since April 1938 by the declaration of S.1933-47 jis 38-1 and 2.
These rules has been out of date with respect to some of its provisions.
For instance provisions regarding Collision, Article 534 and 544a KUHD stated that collision includes collision between ships and between ship and other objects.
Meanwhile, Rule 1 of the Collision Regulation 1972 (which was amended respetivelly in 1981, 1987, 1989, 1993 dan 2001) reads: “[t]he rules apply to all vessels upon the high seas and all waters connected to the high seas and navigable by seagoing vessell” or in other word collision only includes collision between ships.
Collision between ship and other object (so called allision) does not included within the definition of collision envisaged within the Collision Regulation 1972.
This goes the same for carrier‘s limitation of liability.
The amount and currency stated for limitation of liability has been out of date and not suitable with current economic conditions.
Therefore, it is argued that putting maritime law within the scope of Indonesian commercial law has caused the development of such law did not in-line with its international practices and development.
These following sections elaborate inconsistency between international salvage law rules and Indonesian salvage law.
C. Historical Development of Salvage Law As mentioned previously, one of the scopes of maritime law is the law of salvage.
While it is important in international trade that goods should reach its destination on time, there is an obligation for a ship navigating in an open sea that it should stop to help other ship which is in danger.
10 To some extend, this is what it called salvage action.
The problem arising from such action is that the party conducted salvage action might steal from the shipwreck, either in international waters or territorial sea of a certain state.
Thus, to counter the temptation to steal from shipwrecks, traditional salvage rules emerged.
The evolution of salvage principle took place for centuries.
The early concept of salvage was that the salvor 10 Puspitawati, Dhiana, Urgensi Pengaturan Salvage dalam Kecelakaan Kapal di Laut (Studi Sinkronisasi Hukum), Academic Research Report, Brawijaya University, Malang (2012).
25 should be motivated to rescue ships in danger.
The right of salvor was based on natural equity.
Thus, salvage was aimed at saving crew and passanger as well as the property which include freight and the ship itself.
However, in its development, salvors were only motivated to gain the incentive offered without any consideration whether their salving effort was successful or not.
Hence, modern salvage rule, which provided an incentive for salvage action and preserve items of property, was introduced.
This is enhanced in ―no cure no pay‖ principle and the calculation of salvage awards.
A salvor who undertakes a salvage operation, and who does not succeed, will not be able to claim an award.
―Salvage law has as a basis that a salvor should be rewarded for risking his life and property to rescue the property of another from peril.
A vessel is consider in peril if it is in danger or could become in danger.
Examples of a vessel in peril are when it is aground or in danger of going aground.‖ 11 Prior to international codification on salvage, salvage action includes: ―(i) navigating or standing by a vessel in danger, (ii) rescuing persons having taken to the boat, (iii) removing vessel from a danger posed by 11 Bjune, (2007), above n. 3 another or a wreck which has fouled her, an ice float or an impending collision, (iv) rescuing a ship, cargo or people from pirates and (v) giving advice or information in order to save a vessel from a local danger.‖ 12 Furthermore, salvor can be defined as ―one, who without any particular relation to the ship in distress, proffers useful service and gives it as a volunteer adventurer without any pre-existing covenant that connected him with the duty of employing himself for the preservation of that ship‖ 13 D. International Salvage Law 14 The first international codification related to salvage rules was the Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea (Brussels Convention 1910) which was concluded in Brussels on 23 September 1910 and revised on 27 May 1967.
15 While this Convention provides provisions on traditional salvage rules, on 28 April 1989 a new Convention, International Convention 12 Bjune, Catherine, ‗Salvage‟, presented presented at Shipping Course, 20 October-6 December 2007 13 Lord Stowell, Neptune 1824 cited in Bjune (2007), Ibid.
14 For complete historical development of Brussels Convention 1910 as well as Salvage Convention 1989 read further Kerr, Michael, ‗The International Convention on Salvage 1989 – How It Came to Be?‘, 39 International and Comparative Law Quarterly (1990) 530.
15 UKTS 4 (1913).
26 on Salvage (Salvage Convention 1989) was adopted in London.
16 It contains 34 articles.
This Convention besides adopted traditional salvage rules from Brussels Convention 1910 also added provisions in accordance with practical development of the subject.
In fact the Salvage Convention 1989 was adopted based on Amoco Cadiz accident in 1978 which spills 10 million gallon crude oil in an open sea.
17 Based on such accident it was realized that traditional salvage rules did not establish rules related to marine environment.
This is shown by the preamble of the Salvage Convention 1989 as follows: ―... substantial developments, in particular the increased concern or the protection of the environment, have demonstrated the need to review the international rules presently contained in the Brussels Convention of 1910 ....‖ New provision provided by the Salvage Convention 1989 also includes „special compensation‟ in case there is potential environment issue, salvor should also do as best as he could to save marine 16 IMO Leg/Conf.7/27, 2 May 1989.
17 Amoco Cadiz was a Very Large Crude Carrier (VLCC) under the Liberian Flag of Convinience owned by Amaco.
On 16 March 1978, this ship ran aground on Portsall Rocks, approximately 3 nautical miles from the coast of Britanny, France and ultimately split in three and sank, resulting in the largest oil spill of its kind in history to that date.
See also Redgwell, Catherine, ‗The greening of Salvage Law‘, Marine Policy, March (1990).
environment from potential pollution.
The value of this „special compensation‟ will be equal to the real salvor‘s expenses related to salvage action plus discretionary uplift 18 of the salvor‘s expensed.
19 Furthermore, the ship owner and cargo owner are still liable to pay the salvage award upon the preservation of the ships.
Special compensation is paid by the ship owner not the cargo owner.
This is because cargo owner is already liable to pay for a certain proportion of salvage award payable to the salvor.
Another significant development can be read from Article 13 and 14 as follows: ―Criteria for fixing the reward 1.
The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below: (a) the salved value of the vessel and other property; (b) the skill and efforts of the salvors in preventing or minimizing damage to the environment; (c) the measure of success obtained by the salvor; 18 Article 14 of the Salvage Convention 1989 19 Gordon, Robert, ‗Marine Insurance‘, Paper presented at Shipping Course, BI Norway dan UWM, Surabaya, Oktober-Desember (2007).
See also Myburgh, Paul, ‗The 1989 Salvage Convention: Casualty or Cure?‘, New Zealand Law Journal (1996); Brice Q.C., Geoffrey, ‗Salvage and the Underwater Cultural Heritage‘, Marine Policy, v20 n4 (1996).
27 (d) the nature and degree of the danger; (e) the skill and efforts of the salvors in salving the vessel, other property and life; (f) the time used and expenses and losses incurred by the salvors; (g) the risk of liability and other risks run by the salvors or their equipment; (h) the promptness of the services rendered; (i) the availability and use of vessels or other equipment intended for salvage operations; (j) the state of readiness and efficiency of the salvor‘s equipment and the value thereof.
2.
Payment of a reward fixed according to paragraph 1 shall be made by all of the vessel and other property interests in proportion to their respective salved values.
However, a State Party may in its national law provide that the payment of a reward has to be made by one of these interests, subject to a right of recourse of this interest against the other interests for their respective shares.
Nothing in this article shall prevent any right of defence.
3.
The rewards, exclusive of any interest and recoverable legal costs that may be payable thereon, shall not exceed the salved value of the vessel and other property.‖ 20 Whereas Article 14 of Salvage Convention 1989 envisages: 20 Article13 of the Salvage Convention 1989 ―Special compensation 1.
If the salvor has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under article 13 at least equivalent to the special compensation assessable in accordance with this article, he shall be entitled to special compensation from the owner of that vessel equivalent to his expenses as herein defined.
2.
If, in the circumstances set out in paragraph 1, the salvor by his salvage operations has prevented or minimized damage to the environment, the special compensation payable by the owner to the salvor under paragraph 1 may be increased up to a maximum of 30% of the expenses incurred by the salvor.
However, the tribunal, if it deems it fair and just to do so and bearing in mind the relevant criteria set out in article 13, paragraph 1, may increase such special compensation further, but in no event shall the total increase be more than 100% of the expenses incurred by the salvor.
3.
Salvor‘s expenses for the purpose of paragraphs 1 and 2 means the out-of-pocket expenses reasonably incurred by the salvor in the salvage operation and a fair rate for equipment and personnel actually and reasonably used in the salvage operation, taking into consideration the criteria set out 28 in article 13, paragraph 1(h), (i) and (j).
4.
The total special compensation under this article shall be paid only if and to the extent that such compensation is greater than any reward recoverable by the salvor under article 13.
5.
If the salvor has been negligent and has thereby failed to prevent or minimize damage to the environment, he may be deprived of the whole or part of any special compensation due under this article.
6.
Nothing in this article shall affect any right of recourse on the part of the owner of the vessel.‖ 21 The ―fair rate‖ in Article 14 (3) referred to the daily commercial rate for hire.
Article 14, especially those related to the remuneration award, further referred to SCOPIC Clause (Special Compensation Protection and Indemnity Clause).
SCOPIC Clause is formulated especially by the Sub Committee of the Salvage Liaison Group to overcome problems resulted from different interpretation of Article 14 Salvage Convention 1989 and to answer insurance problems related to the lack of information and involvement in a certain salvage case.
However, there is misunderstanding related to the application of SCOPIC Clause, which includes the expiry date and 21 Article 14 of Salvage Convention 1989 termination of SCOPIC Clause.
In relation to the earlier, while some business parties in shipping industry considered that Article 14 of Salvage Convention is still exists even if Sub-Clause 2 of the SCOPIC Clause was used or even if the parties has cancelled SCOPIC Clause based on Sub-Clause 9 the SCOPIC Clause is still applicable, in fact the whole SCOPIC Clause will replaced Article 14 of the Salvage Convention 1989.
If the parties have agreed to use SOPIC Clause in determining salvor‘s award, it is not possible to apply Article 14 of the Salvage Convention 1989.
Further misunderstanding was related to the provision of termination in Sub-Clause 9 (i).
Salvors can only cancel the Salvage agreement or SCOPIC Clause based on Sub-Clause 9 (i).
22 However, the ship owner can cancel the SCOPIC Clause based on Sub-Clause 9 (ii).
23 22 SCOPIC Clause 9 (i) relating to termination reads: ―(i) The Contractor shall be entitled to terminate the services under the SCOPIC clause and the Main Agreement by written notice to owners of the vessel with a copy to the SCR (if any) and any Special Representative appointed if the total cost of his services to date and the services that will be needed to fulfil his obligations hereunder to the property (calculated by means of the tariff rate but before the bonus conferred by sub-clause 5(iii) hereof) will exceed the sum of: (a) The value of the property capable of being salved; and (b) All sums to which he will be entitled as SCOPIC remuneration‖ 23 SCOPIC Clause 9 (ii) reads: ―(ii) The owners of the vessel may at any time terminate the obligation to pay SCOPIC remuneration after the SCOPIC clause has been invoked under sub-clause 2 hereof provided that the Contractor shall be entitled to at 29 Moreover, ‗special compensation‘ can be paid without distinguishing the ship type and substantial type which endanger the environment.
Such compensation will be paid based on „a more generous basis.‟ The differences between Brussels Convention 1910 and Salvage Convention 1989 can be described in the table below: Table 1: Differences between Brussels Convention 1910 dan Salvage Convention 1989 No.
Substance Brussels Convention 1910 Salvage Convention 1989 1.
Protection of marine environment x V 2.
Special Compensation— SCOPIC x V 3.
Discretionary Uplift x V 4.
Salvage Contract(implied or expressed) x V 5.
Elements of Salvage x V 6.
No cure-No Pay Principle v V Note : v = provides; x = does not provide Another international instrument related to salvage was the Code of Practice between International Salvage Union and International Group of P&I Club.
This code least 5 clear days‘ notice of such termination.
In the event of such termination the assessment of SCOPIC remuneration shall take into account all monies due under the tariff rates set out in Appendix A hereof including time for demobilisation to the extent that such time did reasonably exceed the 5 days‘ notice of termination.‖ provides the application of Article 14 of Salvage Convention 1989.
Meanwhile, for the salvor‘s limitation of liability was provided in the Convention on Limitation of Liability for Maritime Claims 1976.
Article 1 of the Salvage Convention 1989 defines salvage operation as: ―Salvage operation means any act or activity undertaken to assist a vessel or any other property in danger in navigable waters or in any other waters whatsoever.‖ It follows from the above definition that there are at least 4 factors regarding salvage, which include: (i) an effort conducted by salvors, (ii) at sea requirement, (iii) conducted based on voluntary nature and (iv) the salvage effort should be successful (successful service).
Furthermore, salvor can be defined as: ―One, who without any particular relation to the ship ini distress, proffers useful service and gives it as a volunteer adventurer without any pre-existing covenant that connected him with the duty of employing himself for the preservation of that ship.‖ 24 At sea requirement means that such accident should happen in navigational tidal water or in docks enclosed from tidal waters by gates, 24 Lord Stowellin, Neptune, 1824 as cited in Bjune (2007), above n. 12 30 since the tidal waters are adjacent to waters forming part of the complex of a basically tidal part of harbor.
While the obligation of successful service referred to the principle of ―no cure no pay,‖ on the other hand, if cure good pay and thus reward will be given based on salvor‘s contribution during the salvage effort.
In theory there are two type of salvage which includes: (i) contract salvage dan (ii) pure salvage.
Unlike contract salvage that operates prior the salvage operation in which the amount of reward is fix and provided within the contract salvage, in pure salvage the amount of award will be determined after the completion of salvage effort.
While it is possible to include salvage contract prior to salvage effort with the approval of master, such contract does not contain the fix amount of the reward.
The common salvage contract is Lloyds Open Form Salvage Contract or known as LOF.
The LOF was formulated based on‖no cure – no pay‖ principle and in case the agreement relating to the amount of award cannot be reached the arbitration will determine the amount.
The LOF has undergone many changing or amandement and the final LOF known as LOF 2000.
The characteristic of LOF 2000 is that it contains the obligation of salvor to also pay attention to marine environment issue during the services.
This is inaccordance with the Salvage Convention 1989.
Although the application of LOF 2000 should be in written form, it is believed that in emergency situation unwritten agreement to use LOF 2000 is aceptable.
The amount of award then will be decide by arbitration board.
E. Salvage Law in Indonesia Wetboek Van Koophandel or Kitab Undang-undang Hukum Dagang (KUHD) In Indonesia, salvage law can be found within Book II Chapter VII Article 545-568k of the Wetboek Van Koophandel or known as Kitab Undang-undang Hukum Dagang (KUHD).
Such Act entered into force in Indonesia since 1 April 1938.
The provisions provided within the Act were similar to the Netherlands Act 25 which was entered into force effectivelly in Netherland on 22 Desember 1924 (S. Ned.
1924-573).
When the Brussels Convention entered into force Indonesia was still under the Netherland‘s colonalization and as such the Netherlands ratified the Convention not Indonesia.
However, Indonesia also have to 25 Since Indonesia was colonalized by the Netherland for almost 350 years, legal regulations in Indonesia should be in accordance with those in the Netherland.
31 adopt the Convention through the concordation of the Netherland‘s act (S. Ned 1924-573), which was further adopted in Indonesia within S.1933-47 jo.
38-2.
After independence, Article II of aturan peralihan UUD 1945 envisaged that as long as Indonesia has not made any changes all Netherland‘s legal instrument will still be enforcable.
In fact S. 1933-47 jo.
38-2 has not been changed and still enforcable untill the present time.
Unfortunately, in Netherlands itself such law has been revised with S. Ned.
1931-320 related to Van Hulp en Berging (Help and Rescue) and meanwhile Indonesia still use the same S. 1933-47 jo.
38-2.
While provisions on salvage within KUHD mostly incorporated Brussels Convention 1910, not all provisions were adopted.
Table below compares salvage law under Brussels Convention 1910 and KUHD: Table 2: Comparison between salvage law under Brussels Convention 1910 and KUHD No Substance Brussels Convention 1910 KUHD 1.
‗no cure-no pay‘ principle v X 2.
Master Permission v V 3.
Salvor‘s compensation if unsucessful x V 4.
Compensation upon man‘s life x (only given Fairshare, if sucessful and the amount of compensation was included within salvage service fee given) v (included within salvage service fee) 5.
The use of Lloyd Open Form (LOF) v V Note : v = provides; x = does not provide Chapter VII of KUHD consists of three section, which include: (i) provisions on when a ship needs salvage, (ii) those related to hulploon (the amount of award) and (iii) intervention of the state authority with regard to the salvage.
According to KUHD, the danger at sea which can be helped by other vessel in passage includes the following conditions: (i) people on board the sinking vessel, (ii) cargo from shipwreck, (iii) safety equipment of sunken vessels, (iv) grounded vessels an d(v) vessel navigation in danger.
Furthermore, the salvage effort adopted by KUHD includes saving passanger and crew, finding and saving the floating cargo and also finding cargo on shore.
In addition to this salvors have the obligation to return all cargo as 32 well as safety equipment of the sunken vessel to the owner.
If the salvor had saved passanger or crew the salvor have the right of reward from the ship owner.
As such, while implicitely the obligation of the salvors to return all cargos and safety equipment found to the owner can be considered as ―no cure no pay‖, it is not clear whether the award will only be given for succesfull services.
While not all provisions of Brussels Convention 1910 were adopted by KUHD, the replacement of the Convention by the Salvage Convention 1989, leads to the question of whether KUHD provisions concerning salvage can still be enforced.
While Indonesia has not yet ratified Salvage Convention 1989, this convention has entered into force world-wide and has been used in practical navigational rules.
Thus, for salvage action and services navigational practice always follows its provisions.
Since Indonesia is also part of international trade actor, it is submitted that provisions on salvage within Salvage Convention 1989 should be adopted by Indonesia.
On the application of Salvage Convention 1989, Lansakara stated that if a state has signed Lloyd Open Form for its consent on salvage service, it means such state will abide provisions provided by the Salvage Convention 1989 regardless of the consent to be bound uporn such Convention.
26 This is because Lloyd Open Form itself contained provisions of the Convention to be applied contractually.
Thus, it is submitted that by maintaining such practice, even a noncontracting parties to the Convention will be bind by the Convention.
Indonesian Act on Navigation: Act No.
21/1992 and Act No.
17/2008 Fortunately, Indonesia further realised that rules concerning shipping and navigation are very dynamic following rapid practical development.
Thus, Indonesia has taken out some of maritime law (not all) from KUHD and enacted Act Number 21 Year 1992 (Act No.
21/1992) regarding navigation.
This Act was further renewed and replaced by Act Number 17 Year 2008 (Act No.
17/2008) concerning the same subject matter.
In fact, both Acts provides salvage rules although not in details.
Act 21/1992 provides salvage rules within Chapter V on navigation.
Chapter V Part I Article 7 of the Act stated: 26 Lansakara, F, ‗Maritime Law of Salvage and Adequacy of Laws Protecting the Salvor’s interests‘, International Journal on Marine Navigationand Safety of Marine Transportation, v6 n3 (2012).
33 ―Navigation includes all things related to act of navigation, telecomunication, hydrography, sea-lanes passage, pilotage, shipwreck removal, salvage and other under water works for the safety of navigation.‖ Furthermore, Chapter V Part V regarding shipwreck, salvage and other under-water works, Article 19 stated: ―(1) Salvage is conducted upon shipwreck and/or its cargoes and upon a vessel and/or its cargoes, which is in danger of sinking.
(2) All under-water works should meet technical requirement realting to the safety of navigation.
(3) Further regulations concerning paragraph (1) and (2) will be regulated further by government regulations.‖ Article 1 (8) UU 21/1992 further defines other under-water works as: ―…all works related to installations, constructions and ships which is conducted uner-water or special under-water works.‖ Meanwhile Atc 21/1992 is silent on the definition of salvage or other works which can be categorized as salvage.
While Act 21/1992 includes ships and its cargoes in danger at sea or is sinking, Chapter X Part VIII Article 204 of Indonesian Act 17/2008 regarding salvage and under water works provides: ―(1) Salvage services are conducted upon shipwreck and/ its cargo which has been sunken.
(2) Every salvage services and under water works required permission and technical requirement for safety and security of navigation from Minister.‖ 27 Furthermore Article 1 (54) of Indonesian Act No.
17/2008 defined shipwreck as ‖every sunken or grounded vessels which has been abandon.‖ Article 1 (55) of Indonesian Act No.
17/2008 defines salvage as: ―services to help or recue ships and its cargoes in danger in navigational waters including removing the shipwreck and other underwaters objects.‖ 28 Furthermore, underwaters works is defined by Article 1 ((51) Act No.
17/2008 as: ―...the works related to installations, constructions or a ship which is conducted underwater and/ underwater works, especially the 27 Article 204 of Act 17/2008, translated by the Author 28 Article 1 (55) Act 17/2008, translated by the Author 34 operation of underwater equipment which is operated from the surface.‖ 29 It follows from the above, while it can be noted that under Indonesian Act No.
17/2008 salvage services only referred to shipwreck removal of sunken vassel, according to Salvage Convention 1989 shipwreck removal is also part of salvage services and not merely removing shipwreck of sunken vessel but wreck of the salvaged vessel in danger of sinking.
According to Bjune salvage services include even more broad activities, as stated below: 30 ―navigating or standing by a vessel in danger, rescuing persons having taken to the boats, removing a vessel from a danger posed by another or a wreck which has fouled her, an ice floa or an impending collision, rescuing a ship, cargoes or people in pirates, giving advice or information in order to save a vessel from a local danger, dispatching an aircraft to search and transmit the position of a derelict vessel, towing, piloting and putting out fire.‖ Form the above quotation it is clear that salvage services is only presented to a ship and its cargo in danger at sea and also the act of piracy or even might include 29 Article 1 (51) of Indonesian Act No.
17/2008, translated by the Author 30 Bjune, 2007 above n 12 terrorism, not to the existing shipwreck off shore or lying on the coast as stipulated by Article 204 (1) UU 17/2008.
Unlike KUHD which clearly pointed to the master in permitting salvage services, however, it is not clear in Indonesian Act No.
17/2008 who should give permission for salvage services.
In addition to this, while salvage services include the effort in rescuing a ship, cargo or people from pirates, Indonesian domestic law is silent on this matter.
Thus, it is submitted that there are some inconsistency between Indonesian domestic law regarding Salvage and International regulation on the same subject.
While KUHD actually contains details regulations on salvage compared to Indonesian Act on Navigation, unfortunately the formulation of KUHD was based on Brussels Convention 1910 which has been replaced by Salvage Convention 1989.
The following table describes the comparison between Salvage Convention 1989 and Indonesia Act No.
17/2008: Table 3: Comparison between Salvage Convention 1989, Act 21/1992 and Act 17/2008 on Salvage Rules No.
Substance Salvage Convention 1989 Act 21/1992 Act 17/2008 1.
Definition of v x V 35 Salvage 2.
Salvage Services On ship and its property at the navigational waters (at sea) On shipwreck and/or its cargoes dan ships and/or its cargoes On existing shipwreck and its cargo 3.
Shipwreck Removal v (following to the salvage services on the ship in danger not on an existing shipwreck) v (not as part of salvage services) v (existing shipwreck not the shipwreck of the ship in danger) 4.
Under-Water Works x v V 5.
Property (including freight) v v V 6.
Salvor Compensation v x X 6.
No Cure No Pay Principle v x X 7.
Master Permission v x X Note : v = provide; x = does not provide In Indonesia salvage services can be stated as volunteer action.
While salvage services according to Salvage Conventon 1989 does not include salvage services provided by the government authority, Article 5 of Salvage Convention stated that salvors carrying out salvage operations shall get a reward according to their national regulations.
Unfortunatelly, such reward system is still non-existing in Indonesia.
Article 5 of the Salvage Convention 1989: ―Salvage operations controlled by public authorities 1.
This Convention shall not affect any provisions of national law or any international convention relating to salvage operations by or under the control of public authorities.
2.
Nevertheless, salvors carrying out such salvage operations shall be entitled to avail themselves of the rights and remedies provided for in this Convention in respect of salvage operations.
3.
The extent to which a public authority under a duty to perform salvage operations may avail itself of the rights and remedies provided for in this Convention shall be determined by the law of the State where such authority is situated.‖ 31 Furthermore, Article 9 of the same Convention stipulated the right of coastal state as follows: ―Nothing in this Convention shall affect the right of the coastal State concerned to take measures in accordance with generally recognized principles of international law to protect its coastline or related interests from pollution or the treat of pollution following upon a maritime casualty or acts relating to such a casualty which may reasonably be expected to result in major harmful consequences, including the right of a coastal State 31 Article 5 of Salvage Convention 1989 36 to give directions in relation to salvage operation.‖ In conducting salvage services, while government authority often get help from salvor services company, however, the salvage job is obtained through either subcontract works or non LOF contract.
In addition, none of such salvage services concerned on marine environment.
While further development on Salvage took place in early 2013 by the enactment of Transportation Minister Regulation Number 71/2013 32 or Peraturan Menteri Perhubungan Nomor 71/2013(PM 17/2013) on Salvage, nothing in the Regulation provides provisions about compensation for salvor, rights and obligation of salvor and also no provisions on environment protection.
Article 205 further stated that further regulations on salvage will be regulated by Ministry Regulation.
One significant development made on salvage by the Regulation is that it provides the scope of salvage, which includes both salvaging the sinking vessel or vessel in danger of sinking and shipwreck removal.
Unfortunately, the rest provisions of the Regulation only stipulates the establishment 32 This enactment of this Regulation was mandated by Article 205 of the Act 17/2008 which stated that further regulations on salvage will be regulated by Ministry Regulation of salvage company and its permit procedures.
Such Regulation is silent on the rights of salvors with regard to compensation and its apportionment.
IV.
CONCLUSION Maritime trade in general is the oldest international business, which was governed by the earliest examples of international law and has been amended over time as currently applicable.
Since sea transportation is still preferable mode of transportation to carry out international trade, it is important to assure that international trade through the ocean is accident free.
If accidents do happen, at least property of international trade can be preserved by professional salvage services.
While Purwosutjipto argued that salvage principles as explained previously in this paper is ―culturally unrecognized‖ 33 in Indonesia, it does not justify the ignorance of the opportunities offered by current international salvage principles.
However, Article 204 of Indonesian Act No.
17/2008 and PM 71/2013 on salvage can be seen as a start for Indonesia to accommodate the interests of shipping in saving their property 33 Read further Purwosutjipto, ( 2000), above n.8 37 including freight during its operation.
But much remain to be done, including provided provisions on salvors‘ rights upon succesfull salvage efforts.
As an archipelagic state, through which its waters play a vital role in international trade, Indonesia should assure that foreign vessels traversing through its waters as well as Indonesian flaged vessels will get professional assistant should the accident happen.
Similarly, Indonesian shipping industry should also aware of international salvage principles as provided within the Salvage Convention 1989.
REFERENCES Books/Articles/Newspaper Bjune, Catherine, Introduction to Maritime Law, 2007.
Bjune, Catherine, Salvage, presented at Shipping Course, 20 October-6 December 2007.
Brice Q.C., Geoffrey, ‗Salvage and the Underwater Cultural Heritage’, Marine Policy, v20 n4, 1996.
Gordon, Robert, ‗Marine Insurance‘, Paper presentes at Shipping Course, BI Norway dan UWM, Surabaya, Oktober-Desember 2007.
Gordon, Robert, ‗Marine Insurance‘, Paper presented at Shipping Course, BI Norway dan UWM, Surabaya, Oktober-Desember 2007.
Kerr, Michael, ‗The International Convention on Salvage 1989 – How It Came to Be?‘, 39 International and Comparative Law Quarterly (1990) 530.
Kusumaatmadja, Mochtar, Pengantar Hukum Internasional, 1999 Lansakara, F, ‗Maritime Law of Salvage and Adequacy of Laws Protecting the Salvor’s interests‘, International Journal on Marine Navigationand Safety of Marine Transportation, v6 n3, 2012.
Myburgh, Paul, ‗The 1989 Salvage Convention: Casualty or Cure?‘, New Zealand Law Journal, 1996.
Purwosutjipto, HR, Pokok-Pokok Hukum Dagang, 2000.
Puspitawati, Dhiana, ―Hukum Laut atau Hukum Maritim?‖, Jawapos (Surabaya), 22 May 2006.
Puspitawati, Dhiana, Urgensi Pengaturan Salvage dalam Kecelakaan Kapal di Laut (Studi Sinkronisasi Hukum), Academic Research Report, Brawijaya University, Malang, 2012.
Puspitawati, Dhiana, Hukum Laut Internasional, Modul Ajar, Brawijaya University, 2012.
Rompas, Rizald Max, Hutabarat, Sahala dan Rompas, Julius Robert, Pengantar Ilmu Kelautan, Buku Ajar Perguruan Tinggi, Dewan Maritim Indonesia, 2007 White, Michael, Maritime Law, 2007 Wilder, Mark A, ―Application of Salvage Law and the Law of Finds to Sunken Shipwreck Dicoveries,‖ Defense Counsel Journal, January 2000, 92-105 International Conventions and Domestic Legislation Convention for the Unification of Certain Rules of Law respecting Assistance and Salvage at Sea, Brussels, 23 September 1910.
38 International Maritime Organization Convention 1948 United Nations Convention on the Law of the Sea 1982 International Convention on Salvage, 1989, London, 28 April 1989 Code of Practice Between International salvage Union and International Group of P&I Club Lloyd‘s Open Form for Salvage Kitab Undang Undang Hukum Dagang Undang-Undang Nomor 21/1992 tentang Pelayaran Undang-Undang Nomor 17/2008 tentang Pelayaran Peraturan Menteri Perhubungan Nomor 17/2013 tentang Salvage dan/atau Pekerjaan Bawah Air
Microsoft Word REVISED BLJ 2016 CONTENT 5 juni.docx Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 41 FREEDOM OF SPEECH IN INDONESIAN PRESS: INTERNATIONAL HUMAN RIGHTS PERSPECTIVE Clara Staples Law Schools, Faculty of Laws, Humanities and Arts University of Wollongong Email: cs471@uowmail.edu.au Abstract This paper will firstly examine the international framework of human rights law and its guidelines for safeguarding the right to freedom of speech in the press.
Secondly, it will describe the constitutional and other legal rights protecting freedom of speech in Indonesia and assess their compatibility with the right to freedom of speech under the international human rights law framework.
Thirdly it will consider the impact of Indonesia’s constitutional law and criminal and civil law, including sedition and defamation laws, and finally media ownership, on the interpretation and scope of the right to freedom of speech in the press.
Consideration of these laws will be integrated with a discussion of judicial processes.
This discussion will be used to determine how and in what circumstances the constitutional right to freedom of speech in the press may be facilitated or enabled, or on the other hand, limited, overridden or curtailed in Indonesia.
Conclusions will then be drawn regarding the strengths and weaknesses of Indonesian laws in safeguarding the right to freedom of speech in the press and the democratic implications from an international human rights perspective.
This inquiry will be restricted to Indonesian laws in existence during the post-New Order period of 1998 to the present, and to the information and analysis provided by English-language sources.
Keywords: freedom of speech, human rights, Indonesia, freedom of expression I.
INTRODUCTION Freedom of speech is recognised as an international human right by the United Nations (‘the UN’) who ‘play a vital role in promoting and protecting human rights worldwide.’1 In 1948 the UN General Assembly adopted the Universal Declaration of Human Rights 1 Sangsuvan, Kitsuron, ‘Balancing Freedom of Speech on the Internet Under International Law’ (2014) 39 North Carolina Journal of International Law and Commercial Regulation 701, 707-8.
(‘the Declaration’) setting out ‘fundamental human rights to be universally protected’ and aiming for ‘a common standard of achievements for all peoples and all nations.’2 The right to freedom of expression is included as one of the thirty articles outlining universal rights contained in the 2 The United Nations, The Universal Declaration of Human Rights <http://www.un.org/en/universal-declarationhuman-rights/>.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 42 Declaration.
3 Article 19 of the International Covenant on Civil and Political Rights of 1966 (‘the ICCPR’) is based on the wording and sentiment of Article 19 of the Declaration 4 and forms part of the International Bill of Human Rights which aims to guarantee civil and political rights.
5 In seeking that the articulated rights be ‘accepted by people of all nations and cultures’6 the UN encourage the homogenisation of law across the globe.
On account of such aims Article 19 of the ICCPR is presumed for the purpose of this essay to articulate the ideal global standard of the right to freedom of speech.
It provides that ‘[e]veryone shall have the right to hold opinion without interference’ and that ‘[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and import information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’ 7 In accordance with the wording of Article 3 The Universal Declaration of Human Rights (‘UDHR’), GA Res 217A (III) UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December1948) art 1.
4 UDHR, UN Doc A/810, art 19.
5 Sangsuvan, above n 2, 710.
6 Ibid 709.
7 UDHR, UN Doc A/810, art 19 19 the right to freedom of speech thereby extends to the press and media platforms online.
Whilst not intended to be ‘binding on states as part of positive international law,’ 8 the Declaration is according to American academic Kitsuron Sangsuvan accepted as providing a ‘foundation of international human rights law.’ 9 Furthermore, as academic Dr Nadirsyah Hosen asserts, the endorsement of the Declaration by virtually all states has enabled it to acquire ‘customary international law’ status.10 In order however for the right to freedom of speech to be legally recongised within one’s own state, the domestic legal system of that state must legally acknowledge and protect that right.11 Sangsuvan thereby observes that ‘the domestic legal system provides the principal legal protection of freedom of speech.’ 12 The right to freedom of speech in the press is not strictly guaranteed by international law, but rather, dependent on the law of domestic legal systems and the 8 Sangsuvon, above n 2, 709.
9 Ibid 710.
10 Nadirsyah Hosen, ‘Human rights and press freedom’ in Nadirsyah Hosen, Human Rights, Politics and Corruption in Indonesia: a critical reflection on the post Soeharto Era (Dordrecht 2010) 141, 143.
11 Sangsuvon, above n 2, 709 12 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 43 adherence of that system to the principles of international human rights law.
Creating a degree of uniformity to laws regulating press freedom across legal systems in accordance with UN standards or guidelines could arguably contribute to the democratisation of the press in Indonesia.
Indonesia’s transition to democracy since the fall of the Suharto government in 1998 has been discussed extensively in international legal commentary.
13 In examining press freedom in Indonesia, American academic Dr Robert McChesney has noted ‘a crucial aspect of viable journalism in a democracy is its ability to give rigorous account of who is in power and who wishes to be in power.’14 This is how, according to Indian academic Naveen Mishra, news media ensures adequate checks and balances are kept on national government and the head of state, 13 See, eg, Ross Tapsell, ‘Politics and Press in Indonesia’ (2012) 39(2) Media Asia 109; Naveen K. Mishra, ‘Governmental Threats for Media Freedom: comparative study of Asian countries’ (2008) 69(1) The Indian Journal of Political Science 149; Nadirsyah Hosen, Human Rights, Politics and Corruption in Indonesia: a critical reflection on the post Soeharto Era (Dordrecht 2010); Royan, Naomita, ‘Increasing Press Freedom in Indonesia: the Abolition of the Lese Majeste and ‘Hate-Sowing Provisions’ (2008) 10 Australian Journal of Asian Law 291.
14 Quoted in Tapsell, above n 1, 109. thereby fulfilling its role as the ‘Fourth estate’ of democracy.15 This paper seeks to analyse Freedom of speech in Indonesia from the perspectives of human rights.
Constitutional and other legal rights protecting freedom of speech in Indonesia will be analysed under the international human rights law framework.
It will also consider the impact of Indonesia’s constitutional law and criminal and civil law, including sedition and defamation laws, and finally media ownership, on the interpretation and scope of the right to freedom of speech in the press.
Consideration of these laws will be integrated with a discussion of judicial processes.
II.
METHODOLOGY This paper uses juridicalnormative method, including reviewing and analysing the rules of freedom of speech in Indonesia.
Relevant laws and policy is analysed.
The approach used in this paper is statute approach.
Constitutional protection on freedom of speech will be 15 Naveen K. Mishra, ‘Governmental Threats for Media Freedom: comparative study of Asian countries’ (2008) 69(1) The Indian Journal of Political Science 149, 149.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 44 analysed from human rights point of view.
It begins with the brief description on international legal framework on freedom of speech and human rights.
Furthermore, Indonesian constitution and freedom of speech law will be analysed in the framework of international human rights laws.
III.
RESULT AND DISCUSSION CONSTITUTIONAL SAFEGUARDS TO THE RIGHT TO FREEDOM OF SPEECH IN INDONESIAN PRESS Hosen recognises that the right to express an opinion is honoured in the 1945 Constitution of the Republic of Indonesia (‘the Constitution’) encapsulated in Article 28.
16 However Article 28 of the Constitution does not outline or identify the extent to which the right is protected by law.
Rather the provision states that the ‘[f]reedom to unite and gather, express opinions orally and in writing and the others shall be stipulated by virtue of law’17 (emphasis added).
The qualifications to the right to freedom of speech under the ICCPR are explicitly listed under Article 19(3) and ‘shall only be such as are provided by law and are necessary: (a) For respect of 16 Hosen, above n 11, 148.
17 The 1945 Constitution of the Republic of Indonesia art 19. the rights or reputations of others; (b) For the protection of national security or of public order or of public health or morals.’ 18 Although a member of the United Nations since 28 September 195019 Indonesia was relatively late in its accession to the ICCPR.
The ICCPR entered into force on 23 March 1976 with Indonesia assenting nearly thirty years later on 23 February 2006.20 The Indonesian government therefore had prior to its ratification of the ICCPR, and still maintains by virtue of its domestic law, wide scope to legislate to restrict the constitutional right to freedom of expression under Article 28 for matters beyond those listed in Article 19(3) of the ICCPR.
This has arguably created weaknesses in safeguarding the constitutional right of Indonesian journalists to express free speech, for example by restricting that 18 The International Covenant on Civil and Political Rights (‘ICCPR’) GA res 2200A, UN GOAR, 21st sess, Supp No (16) 52, UN Doc A/6316 (1966) art 19.
19 The United Nations, United Nations Member States <http://www.un.org/press/en/2006/org1469.doc.
htm>.
20 The United Nations Treaty Collection, International Covenant on Civil and Political Rights <https://treaties.un.org/Pages/ViewDetails.aspx ?src=IND&mtdsg_no=IV4&chapter=4&lang=en>; Law No 12 of 2005 of the Republic of Indonesia on the Confirmation (Pengesahan) of the International Covenant on Civil and Political Rights.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 45 right through sedition laws, as illustrated by case examples discussed below.
The second amendment to the Constitution in 2000 expanded and clarified the right to freedom of speech with the addition of chapter XA on Human Rights.
Amendments included the addition of Article 28(3) which entitles everyone to unite, gather and express opinions, and Article 28F which states ‘[e]veryone shall be entitled to communicate and obtain information to develop their personality and social setting, and to find, obtain, have, keep, process and give information with any means of channel available.’ 21 This phrasing resembles Article 19 of the ICCPR in its recognition that the right to freedom of speech exists on ‘any means of channel’ and thereby includes expressions of free speech online.
Constitutional amendment thereby helped define, clarify and expand the right to freedom of expression, strengthening the legal protection of free speech in the press.
CIVIL LAW PROTECTION OF THE RIGHT TO FREEDOM OF SPEECH IN INDONESIAN PRESS 21 The 1945 Constitution of the Republic of Indonesia art 28F.
Law No 9/1998 of the Republic of Indonesia on Freedom of Expression, introduced in the post-New Order period, recognises freedom of speech as both a right and a responsibility that must be exercised in a ‘responsible way.’22 The right to freedom of speech for journalists specifically is further safeguarded by the Law No.
40/1999 of the Republic of Indonesia on the Press (‘the Press Law’).
The philosophical basis of the Press Law describes press freedom as ‘the utmost important element in creating a democratic society, nation and state to assure the freedom of expressing ideas and opinion as stated in Article 28 of the Indonesian Constitution of 1945 must be guaranteed.’ 23 This philosophical basis is reinforced by the following provisions: a.
Article 2 which states ‘the freedom of the press is one of the embodiments of sovereignty of the people based upon principles of democracy, justice and supremacy of the law’; b.
Article 3 which outlines the social control function of the 22 Law No 9/1998 of the Republic of Indonesia on Freedom of Expression; in Hosen, above n 11, 162.
23 Law No 40/1999 of the Republic of Indonesia on the Press.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 46 press, enabling it to criticise government policies and provide public debate on political issues, thereby ‘[opening] the door for the press to act as the fourth estate’ of democracy;24 c. Article 4 which states press freedom is guaranteed as a basic right for citizens and should be ‘free from censorship and is not subject to publication and broadcasting bans’;25 and d. Article 6 which states that the role of the press is to ‘enforce basic democratic principles, promote the embodiment of the supremacy of the law and human rights, while at the same time respecting diversity.’26 The aim of using the Press Law to facilitate freedom of speech and contribute to the creation of a democratic society mirrors decisions made in the European Court of Human Rights, which have interpreted the right to freedom of speech as ‘one of the basic conditions for [the] progress of a democratic society and for the 24 Hosen, above n 11, 201.
25 Ibid 200-1.
26 The 1945 Constitution of the Republic of Indonesia arts 2-4, 6. development of every man.’ 27 Contributions were made to the drafting of the Press Law Bill by international organisations, including legal experts from the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) and from Article XIX, a British NGO whose activities focus on safeguarding the right to freedom of expression.
28 The Press Law is supported by Law No.
39/1999 of the Republic of Indonesia on Human Rights (‘Law No.
39/1999 on Human Rights’), that acknowledges the ‘responsibilities and obligation of the Government in the promotion and protection of human rights.’ 29 Specifically in relation to freedom of speech, Article 19 of Law No.
39/1999 on Human Rights ‘protects the right to seek, own, store and disseminate information, through any channel.’30 Law No.
39/1999 on Human Rights also serves to prop up Articles 19-21 of the 1998 MPR Human Rights Charter which ‘protects citizens’ rights to freedom of expression without interference, and to seek, receive and impart information and ideas, through 27 Handyside v United Kingdom (1976) 24 ECHR (ser.
A) 23.
28 Hosen, above n 11, 198.
29 Ibid 162.
30 Law No 39/1999 of the Republic of Indonesia on Human Rights art 14.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 47 any media.’31 The constitutional right to freedom of speech in Indonesia is thereby supported through numerous civil law provisions.
The rights to freedom of speech conferred by the Constitution and under Indonesia’s civil laws are in theory compatible with the international right to freedom of speech as articulated by the UN.
THE ESTABLISHMENT OF THE CONSTITUTIONAL COURT AND ITS JUDICIAL REVIEW FUNCTION The establishment of the Indonesia’s Constitutional Court which commenced operation along with its judicial review function in 2003, by virtue of the fourth amendment to the Constitution in 2002 and the addition of Article 24C, strengthens the legal protection of the constitutional right to freedom of speech.32 The Constitutional Court provides a legal avenue through which members of the press and other individuals can assert their constitutional right to freedom of 31 Stipulation made by the National Assembly of the Consultative Council of the Republic of Indonesia No.
XVII/MPR/1998 on Human Rights; Hosen, above n 11, 159.
32 Naomita Royan, ‘Increasing Press Freedom in Indonesia: the Abolition of the Lese Majeste and ‘Hate-Sowing Provisions’ (2008) 10 Australian Journal of Asian Law 291, 297. speech when legislation is perceived to hinder or obstruct that right.
The Constitution did not in its original form create a Constitutional Court and until 2002 ‘Indonesian courts did not have jurisdiction to exercise judicial review.’ 33 The new standing given to parties whose constitutional rights are adversely affected by civil or criminal laws,34 to challenge the constitutionality of those laws, is therefore a significant improvement and strength in safeguarding the right to freedom of speech in Indonesian press.
THE IMPACT OF SEDITION LAWS ON THE RIGHT TO FREEDOM OF SPEECH IN INDONESIAN PRESS In 2006 and 2007 the judicial review function of the Constitutional Court was used to hear two significant cases, Constitutional Court Decision No 012022/PUU-IV/2006 (‘Sudjana and Lubis’) and Constitutional Court Decision No 6/PUU-V/2007 (‘Panji’), that challenged sedition laws which operated to restrict freedom of speech in order to enhance the President’s ‘ability to govern peacefully.’ 35 Sedition laws 33 Ibid 296-7.
34 Ibid 297.
35 Ibid 293.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 48 are in this regard distinct from defamation laws which proscribe expressions that cause harm to an individual’s reputation.
36 Instead sedition laws proscribe ‘words or conduct deemed to incite discontent or rebellion against the authority of the state.’ 37 Whilst the ICCPR recognises the qualification to freedom of speech for the purpose of maintaining public order in accordance with Article 19(3), it is argued by Australian legal practitioner Naomita Royan that the sedition laws are ‘questionable, at the very least, in countries founded on democratic principles.’ 38 Royan argues that ‘[i]n such nations, a ruler is the people’s representative and, as such, does not possess a “divine right” but is held accountable to the electorate, the members of which are entitled to criticise and question their elected representatives.’ 39 Sedition laws are also in antithesis to the democratic purpose of the Press Laws, which as previously discussed, recognise that ‘the utmost important element in creating a democratic society, nation and state [is] to assure the freedom of expressing 36 Ibid.
37 Ibid.
38 Ibid.
39 Ibid.
ideas and opinions’ by guaranteeing or safeguarding the constitutional right to freedom of speech in the press.40 The existence of sedition laws undeniably weakens the ability to assert one’s right to freedom of speech in the press.
In Sudjana and Lubis a political activist and a lawyer both charged with sedition argued that the Indonesia Criminal Code (Kitab Undang-undang Hukum Pidana) (‘Criminal Code’) Articles 134, 136 and 137, which criminalised insults made against the President and Vice-President, were unconstitutional.
41 While Article 134 had broad application in applying to anyone who deliberately insulted the President or Vice-President, Article 137 as noted by Royan ‘directly targeted journalists and the press’ by criminalising dissemination with the intention of publicising those insults.42 Under these provisions those who reported and published any criticisms others made of the President or VicePresident in the press could be prosecuted, and if found guilty, face up to six years imprisonment.
Furthermore, Criminal Code Article 40 Law No 40/1999 of the Republic of Indonesia on the Press.
41 Royan, above n 33, 298.
42 Ibid 294-5.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 49 137(2) prohibited ‘repeat offenders who disseminated those views in the course of their occupations .
.
.
“from exercising the aforesaid profession.”’43 Journalists and editors therefore risked exclusion from the profession if found guilty of more than one sedition charge, significantly curbing their ability to exert the right to free speech on political matters involving the heads of state.
Sudjana and Lubis is a landmark decision enabling press freedom in Indonesia, following the Constitutional Court’s finding that the Criminal Code provisions were ‘remnants of Indonesia colonial past’ under Dutch rule, originally intended to snare ‘prominent figures of the independence movement’ in Indonesia and therefore ‘contradictory to the position of Indonesia as an independent and sovereign state.’ 44 The specific constitutional provisions that the Constitutional Court majority ruled had been offended by the Criminal Code were Article 27(1) concerning equality before the law, Article 28F concerning the ability to communicate and obtain information, and Article 28E(2)-(3) concerning the freedom to express 43 Ibid 295.
44 Constitutional Court Decision No 012022/PUU-IV/2006 at [3.18.6].
opinions and attitudes.
45 The court found that the criminalisation of insults against the President and Vice-President under Criminal Code Articles 134, 136 and 137 were unconstitutional and ‘contrary to Indonesia’s democracy.’ 46 Interestingly, Article 28 of the Constitution was not argued or held to be infringed, providing support for the argument that Article 28 as a stand alone provision provides weak or limited protection for freedom of speech in the press, as posited earlier in this paper.
The decision in Sudjana and Lubis confirms the significance of the Constitutional amendments made in 2000, with the additional constitutional Articles 28F and 28E(2)-(3) being used by Sudjana and Lubis to assert and enforce their rights to freedom of speech in the press.
The Court’s decision in Sudjana and Lubis also highlights the strength of judicial review in safeguarding the right to freedom of speech in the press.
In the 2007 case of Panji the constitutionality of sedition provisions contained in Articles 154 and 155 of the Criminal Code, which criminalised ‘public expression of feelings of hostility, hatred, or contempt toward the 45 Royan, above n 33, 291.
46 Ibid 290.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 50 government,’ were challenged.
47 Similarly to Article 134, Article 154 of the Criminal Code applied to anyone who publicly expressed feelings of hostility, hatred or contempt towards the Indonesian government.
Meanwhile Article 155(1) criminalised dissemination with the intention of publicizing those views, thus explicitly targeting members of the press.48 It was therefore submitted by applicant Panji that Articles 154 and 155 had the ‘potential to repress freedom of the press, because these provisions were available to silence those who criticised the Indonesian government, as well as those who reported criticism of it.’ 49 Furthermore, as noted by Royan, Articles 134 and 154 both lacked a mens rea element.
50 Journalists could thereby be found liable without having ‘actual or intended consequences to the [use of the] insult or expression of hostility.’51 Additionally there was not legislative definition outlining what constituted an ‘insult,’ and in a legal system that does not apply the principles of stare decises no uniform 47 Ibid.
48 Ibid.
49 Ibid 294.
50 Ibid.
51 Ibid.
definition could be formulated and applied by the courts in latter cases.52 As further argued by Royan, ‘[t]he lack of definitions in the law enabled it to undermine the very operation of the media, as journalists would necessarily be reluctant to criticise the leaders of the country without knowing when that criticism was seditious.’ 53 In addition, there was reluctance by the press to report popular criticism of the state’s actions 54 or the views of ‘political activists and other politicians.’55 Panji proved to be a landmark decision signaling a move towards a more democratic press with the Constitutional Court ruling that Articles 154 and 155 of the Criminal Code did in fact infringe the constitutional right to freedom of expression under Article 28 as well as freedom of expression under Article 28E(2)-(3).56 As a result of the decisions in Panji and Sudjana and Lubis Criminal Code Articles 134, 136, 137, 154 and 155 no longer have the 52 Ibid.
53 Ibid 295.
54 Human Rights Watch, Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia (3 May 2010) < https://www.hrw.org/report/2010/05/03/turningcritics-criminals/human-rights-consequencescriminal-defamation-law>.
55 Royan, above n 33, 295.
56 Ibid 291.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 51 force of law.57 Royan concludes that the judicial defeat of these provisions ‘[discourages] media self-censorship, [and] demonstrate[s] that the country is shifting away from its repressive colonial and post-independence, authoritarian legacy towards a more open, rights-based democracy, with growing space for the media.’58 THE IMPACT OF DEFAMATION LAWS ON THE RIGHT TO FREEDOM OF SPEECH IN INDONESIAN PRESS In practice however numerous Criminal Code provisions continue to limit the right to freedom of speech in the press.
This is despite the significant developments towards a more democratic press signaled by the enactment and commencement of the Press Law in 1999.
Under the Press Law Article 15 granted the Indonesian Press Council independence from the government in order to develop freedom of the press and expand the existence of the national press.59 It also conferred on the Council the power to adjudicate all media disputes by ‘providing 57 Ibid 290-1.
58 Ibid 292.
59 Law No 40/1999 of the Republic of Indonesia on Freedom of the Press art 15(1).
consideration and finding settlement to public grievances on cases related to press coverage or news.’ 60 This function was reinforced by a Supreme Court ruling in 2005.61 However, recent cases examined by Freedom House suggest that instead of bringing defamation charges under the Press Law, authorities now ‘undermine the council’s mandate’ 62 by bringing defamation charges to the courts under other laws which can result in the imposition of harsh criminal penalties and extensive periods of imprisonment.
Whilst the ICCPR recognises respect for the right to reputation as a qualification on expression of free speech in accordance with Article 19, an overwhelming number of defamation offences continue to exist in Indonesia’s criminal code.
Such provisions numbered more than 40 in 2015, and are sufficiently vague in their definition to pose difficulties for journalists in knowing when a criticism will constitute a defamatory expression.63 60 Ibid art15(2)(d).
61 Freedom House, Freedom of the Press: Indonesia (2012) <https://freedomhouse.org/report/freedompress/2012/indonesia>.
62 Freedom House, Freedom of the Press: Indonesia (2015) <https://freedomhouse.org/report/freedompress/2015/indonesia>.
63 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 52 As explained by Royan, defamation laws concerning reputation are distinct from sedition laws discussed above.
64 However, in justifying their decision in the case of Eggi and Pandapotan, the Constitutional Court noted that defamation provisions in Articles 310–321 of the Criminal Code can still be used in situations where the President or Vice-President’s personal reputation is damaged, while Article 207 which ‘criminalises insults to rulers and public bodies, [can] be used in situations where the President or VicePresident is insulted in his or her official capacity.’ 65 There is therefore some over lap between the sedition laws now repealed and defamation provisions still in existence.
The obvious utility in limiting the number of existing criminal provisions dealing with the same or similar criminal acts could, as indicated by the Court’s reasoning, have contributed to the Court’s decision to annul the sedition provisions.
As the constitutionality of defamation Articles 207, 310, 311 and 316 of the Criminal Code was upheld in 2008 Decision No 14/PUU-VI/200866 the practical impact 64 Royan, above n 33, 293.
65 Constitutional Court Decision No 012022/PUU-IV/2006 at 60 in Royan, above n 34, 299 66 Royan, above n 33, 304. of the repeal of sedition Articles 134, 136, 137, 154 and 155 is limited.
Members of the press can still have their right to freedom of speech denied and face criminal prosecution for insulting or criticising rulers and public bodies, including the President or VicePresident, or acts that occur in their official capacity as the heads of state.67 The Human Rights Watch reasonably asserts that ‘[d]efamation laws exist to protect individuals from having their reputations intentionally and falsely tarnished by others.’68 Laws proscribing defamatory speech theoretically fall within the ‘necessary and narrowly drawn’69 qualifications to free speech recommended by the ICCPR under Article 19.70 It is common in many countries for civil defamation laws to enable victims of defamatory speech to receive monetary compensation or an apology, however Indonesia imposes additional criminal 67 Criminal Code (Kitab Undangundang Hukum Pidana) art 207.
68 Human Rights Watch, Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia (3 May 2010) <https://www.hrw.org/report/2010/05/03/turnin g-critics-criminals/human-rights-consequencescriminal-defamation-law>.
69 Ibid.
70 The ICCPR, UN Doc A/6316, art 19.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 53 penalties for ‘reputational harm.’ 71 As Indonesia’s defamation provisions are complaint-driven, the complainant can elect at their discretion whether to pursue a civil or criminal claim, or both, against the alleged wrongdoer.
72 In effect criminal and civil provisions proscribe the same offence, the only difference being the penalty imposed, which for criminal offences is up to six years imprisonment in the case of defamatory speech shared over the internet,73 as opposed to the remedies of compensatory payment or measures to publicly retract the defamatory speech which apply in civil cases.74 As the discretion lies in the hands of the complainant to choose which avenue to prosecute insulting speech, the protection of freedom of speech in the press is weakened.
Deliberate ‘insulting’ speech, even if the statements made are true, against public officials acting in an official capacity carries a penalty of up to 18 71 Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia, above n 69.
72 Royan, above n 33, 304.
73 Law No 11/2008 of the Republic of Indonesia on Electronic information and transaction.
74 Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia, above n 69. months imprisonment.
75 As noted by the Human Right Watch, this has led to a tendency for politicians to elect to lay criminal defamation charges against journalists who are critical of their conduct or views.76 The Alliance of Independent Journalists (‘AJI’) has also voiced concerns about the increasing use of Law No 11/2008 of the Republic of Indonesia on Electronic Information and Transaction (‘ITE Law’) ‘to muzzle internet users with spurious defamation claims.
According to Indonesia Corruption Watch, as of October 2014, 71 people had faced defamation charges under Article 27 (3) of the ITE Law since it was passed, with 40 cases in 2014.’ 77 As discussed, penalties for defamatory statements posted or shared online carries a penalty of up to six years imprisonment.
78 The impact of these defamation laws may be selfcensorship by members of the press, if they remain fearful of the risk of imprisonment or loss of employment to report on pertinent political issues, or 75 Ibid.
76 Ibid.
77 Freedom of the Press: Indonesia, above n 63.
78 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 54 news involving political figures including the heads of state.79 In a recent article the Human Rights Watch has argued that ‘criminal penalties are always disproportionate punishments for reputational harm and should be abolished.’80 This position is supported by the fact that civil defamation and criminal incitement laws already exist, and may be regarded as ‘sufficient for the purpose of protecting people’s reputations and maintaining public order’ whilst at the same time ‘written and implemented in ways that provide appropriate protections for freedom of expression.’81 Further supporting the argument for the abolishment of criminal defamation provisions is the disjunction between the prison terms that apply for defamation under the Criminal Code in comparison with the criminal penalties that apply for hindering a journalist’s right to free speech under the Press Law.
Violation of Article 18 of the Press Law, which applies to ‘anyone who intentionally impedes the national press in exercising that press freedom, 79 Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia, above n 69.
80 Ibid.
81 Ibid.
as provided in article 4’ by imposing ‘censorship, banning or restriction of broadcasting,’ will result in a two year imprisonment or up to 500 million rupiah fine.82 In comparison, the penalty for defamation under Article 310 of the Criminal Code is four years imprisonment, this is double the penalty imposed for hindering the right of the press to express free speech.
83 The imposition of harsher penalties for defamatory speech in comparison to the unlawful censorship of free speech indicates that the law prioritises control of press content, over the facilitation of the right to freedom of speech in the press.
The Human Rights Watch points out that ‘the application of criminal defamation laws in Indonesia gives rise to a damaging, chilling effect on speech central to the effective functioning of a democratic society.
It can seriously undermine the work of local NGOs and community-level actors working to combat corruption’ 84 and thereby weakens the protection of the right to free speech in the press.
MEDIA OWNERSHIP AND REGULATION 82 Hosen, above n 11, 205.
83 Ibid 209.
84 Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia, above n 69.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 55 In an article published in 2010, Hosen commented that ‘[a]lthough [the Press Law] introduced a new paradigm, “professional freedom of the press”, it is apparent that full implementation of these rules and principles is a still a long way off.’ 85 This paradigm is encapsulated in Article (c) of the Statement of the Philosophical Base for the Press Law 1999 which reads: ‘the national press as the media for mass communication, information dissemination, and shaping public’s opinion, must be able to perform at its best according to its principles, functions, rights, obligations and roles based upon the professional freedom of the press, guaranteed and protected by the law and free from any interference and intrusion.’ The Press Law states that these values are in accordance with Article 5 item (1), Article 20 item (1), Article 27, and Article 28 of the Constitution and the Indonesia’s Human Rights policy.86 One of the weaknesses however in the realisation of this paradigm is the lack of legal regulation over media 85 Hosen, above n 11, 209.
86 Law No 40/1999 of the Republic of Indonesia on Freedom of the Press; Stipulation made by the National Assembly of the Consultative Council of the Republic of Indonesia No.
XVII/MPR/1998.
ownership which effects professionalism and quality of the press.
According to Australian academic Dr Ross Tapsell, control of the flow of news since the fall of the Suharto regime in 1998 ‘has shifted from the government and military to an oligarchic group of media owners with political and business interests.’ 87 Nonprofit groups Hivos Southeast Asia and the Center for Innovation, Policy and Governance conducted a study in 2011 that found ‘nearly all of the 12 most prominent media companies had ties to political parties in some respect.
These 12 companies also own the country’s 10 major national television stations and five of the six major newspapers.’ 88 This has led to what Tapsell describes as self-censorship as a professional practice in Indonesian journalism.
89 Freedom House confirms that media coverage of the 2014 Presidential election was indicative of ‘the ability of political parties, large corporations, and powerful individuals to control media content, with major media outlets openly reflecting the 87 Tapsell, Ross, ‘Old Tricks in a New Era: Self-Censorship in Indonesian Journalism’ (2012) 36 Asian Studies Review 227, 228.
88 Freedom of the Press: Indonesia , above n 63.
89 Tapsell, above n 88, 288.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 56 political affiliations of their owners.’90 Journalists interviewed at the Surabaya Post, bought by 2014 Presidential candidate for the Golkar party Aburizal Bakrie in 2008 and managed by executives of his subsidiary company Lapindo, explained how their autonomy had been limited since this change in ownership, due to ‘pressure or fears of being reprimanded or fired’ if they reported news critical of the 2014 Presidential candidate or companies owned by him.91 Tapsell recognises the pressure put on journalists to censor news coverage as the ‘antithesis to journalism as crucial to a functioning democracy which Indonesia has embarked upon since 1999.’92 One legal solution to the covert pressure placed on journalists which undermines the aims of the Press Law would be to reform what Tapsell describes as the ‘weak laws which do not regulate the system of ownership.’93 Whilst print media is regulated through the press council and broadcast media licensed by the Ministry of Communication and Information Technology and the Indonesian 90 Freedom of the Press: Indonesia , above n 63.
91 Tapsell, above n 1, 110, 113-4.
92 Ibid.
93 Ibid 100.
Broadcasting Commission, 94 there are no limits on the control and ownership of the press and distribution channels by political parties or politicians.
By contrast, Taiwan amended its media laws in 2003 resulting in the ban of political parties and politicians from involvement or investment in private radio and TV stations.
95 A similar reform in Indonesia, requiring political parties and members of parliament to sell out their stockholdings and relinquish their control of media channels, would arguably provide greater safeguards for freedom of speech and facilitate the democratisation of the press, as it did in Taiwan.96 IV.
CONCLUSIONS The Indonesian press has indeed evolved since its ‘de-politicised’ state under Suharto’s New Order regime.
97 Legal reform in Indonesia in the postNew Order period has in theory strengthened the protection of the right to freedom of speech in the press.
The 94 Freedom of the Press: Indonesia , above n 63.
95 Chen-Ling Hung, ‘Media Control and Democratic Transition: Ongoing Threat to Press Freedom in Taiwan’, (2013) 9(2) China Media Research 83, 87.
96 Ibid.
97 Hosen, above n 11, 155.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 57 2000 Constitutional amendments that expanded the constitutional right to freedom of speech, the creation of the Constitutional Court with its judicial review function, and the Constitutional Court decisions of Eggi and Pandapotan and Panji that found certain sedition provisions to be unconstitutional, mark what Royan describes as ‘Indonesia’s continuing evolution towards the institutionalisation of far greater freedom of expression’ in the press.98 However, in spite of Indonesia’s progress towards a free press, President Joko Widodo made a speech to the legislature on 14 August 2015 lamenting the ‘[c]urrent tendencies that people feel they are ultimately free to behave and voice their opinions as they like.
This is less productive when the media only pursues ratings instead of guiding the public to be virtuous and have a productive work culture.’99 This sentiment echoes the justifications used to censor the press in the period of Suharto’s New Order rule, when the media was perceived as the 98 Royan, above n 33, 296.
99 ‘Jokowi told not to mess with press freedom’, The Jakarta Post (online), 15 August 2015 <http://www.thejakartapost.com/news/2015/08/ 15/jokowi-told-not-mess-with-pressfreedom.html#sthash.DblP2YaE.dpuf>.
‘government’s partner’ in the process of nation building, and the right to freedom of speech in the press significantly curtailed.
100 It was reported in August 2015 that the Widodo government submitted a draft Criminal Code amendment to the House of Representatives that would make insulting the president a crime, 101 despite the annulment of that same provision by the Constitutional Court in Sudjana and Lubis in 2006.102 The democratisation process of the Indonesian press is not yet complete.
Further changes can undoubtedly be made to strengthen the ability to manifest one’s right to freedom of speech through the press, such as the introduction of media laws regulating and restricting ownership of media channels by politicians, and the eradication of criminal defamation provisions.
Indonesia’s continuing progress towards a democratic press will rest largely on the legislature’s decision to curb or pragmatically facilitate the rights of journalists to express free speech.
100 Hosen, above n 11, 153.
101 ‘Jokowi told not to mess with press freedom’, above n 100.
102 Constitutional Court Decision No 012022/PUU-IV/2006.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 58 REFERENCES ARTICLES / BOOKS / REPORTS Freedom House, Freedom of the Press: Indonesia (2012) <https://freedomhouse.org/repor t/freedompress/2012/indonesia> Freedom House, Freedom of the Press: Indonesia (2015) <https://freedomhouse.org/repor t/freedompress/2015/indonesia> Hosen, Nadirsyah, ‘Human rights and press freedom’ in Nadirsyah Hosen, Human Rights, Politics and Corruption in Indonesia: a critical reflection on the post Soeharto Era (Dordrecht 2010) 141 Hung, Chen-Ling, ‘Media Control and Democratic Transition: Ongoing Threat to Press Freedom in Taiwan’, (2013) 9(2) China Media Research 83 Human Rights Watch, Turning Critics into Criminals: the human rights consequences of criminal defamation in Indonesia (3 May 2010) <https://www.hrw.org/report/20 10/05/03/turning-criticscriminals/human-rightsconsequences-criminaldefamation-law> Mishra, Naveen K, ‘Governmental Threats for Media Freedom: comparative study of Asian countries’ (2008) 69(1) The Indian Journal of Political Science 149 Royan, Naomita, ‘Increasing Press Freedom in Indonesia: the Abolition of the Lese Majeste and ‘Hate-Sowing Provisions’ (2008) 10 Australian Journal of Asian Law 291 Sangsuvan, Kitsuron, ‘Balancing Freedom of Speech on the Internet Under International Law’ (2014) 39 North Carolina Journal of International Law and Commercial Regulation 701 Tapsell, Ross, ‘Old Tricks in a New Era: Self-Censorship in Indonesian Journalism’ (2012) 36 Asian Studies Review 227 Tapsell, Ross, ‘Politics and Press in Indonesia’ (2012) 39(2) Media Asia 109 The United Nations, The Universal Declaration of Human Rights <http://www.un.org/en/universa l-declaration-human-rights/> The United Nations, United Nations Member States <http://www.un.org/press/en/20 06/org1469.doc.htm> The United Nations Treaty Collection, International Covenant on Civil and Political Rights <https://treaties.un.org/Pages/Vi ewDetails.aspx?src=IND&mtds g_no=IV4&chapter=4&lang=en> CASES Constitutional Court Decision No 012022/PUU-IV/2006 Constitutional Court Decision No 6/PUU-V/2007 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 59 Handyside v United Kingdom (1976) 24 ECHR (ser.
A) 23 LEGISLATION The Indonesian Criminal Code (Kitab Undang-undang Hukum Pidana) The 1945 Constitution of the Republic of Indonesia Law No 5/1969 of the Republic of Indonesia on Subversion Law No 9/1998 of the Republic of Indonesia on Freedom of Expression Law No 39/1999 of the Republic of Indonesia on Human Rights Law No 40/1999 of the Republic of Indonesia on the Press Law No 12/ 2005 of the Republic of Indonesia on the Confirmation (Pengesahan) of the International Covenant on Civil and Political Rights Law No 11/2008 of the Republic of Indonesia on Electronic Information and Transaction Stipulation made by the National Assembly of the Consultative Council of the Republic of Indonesia No.
XVII/MPR/1998 on Human Rights TREATIES The International Covenant on Civil and Political Rights (‘ICCPR’) GA res 2200A, UN GOAR, 21st sess, Supp No (16) 52, UN Doc A/6316 (1966) The Universal Declaration of Human Rights (‘UDHR’), GA Res 217A (III) UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December1948)
Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 176 TRANSNATIONAL ORGANISED CRIME IN INDONESIA – THE NEED FOR INTERNATIONAL COOPERATION James N Mitchell1 ABSTRACT Along with technological development as well as borderless phenomenon in the era of globalization, transnational organised crime emerged.
The rapid rise of transnational organised crime in the South East Asian region over recent years has prompted action by nations acting both domestically through legislation and policies, as well as internationally through bilateral and multilateral cooperation.2178 East Asia plays host to a vast array of transnational crimes3, however, the ones which will be specifically addressed within this essay are human trafficking, terrorism, wildlife trafficking and piracy.
Each issue will be examined individually, with a preliminary outline of the crime's nature, followed by an analysis of specific domestic and international approaches towards combatting it.
It will be argued that the effective control of transnational organised crime requires more than individual States working individually to protect their own interests.
International cooperation between States that involves coherent and consistent strategies tailored to the nature of the crime is essential if transnational organised crime is to be effectively counteracted within East Asia.
Keywords: Transnational Organized Crime, South East Asia, Cooperation I.
INTRODUCTION 1 2 3 Transnational organised crime is an ever-expanding global problem with far-reaching impacts in all corners of the world.4 For the purposes of this essay, ‘transnational organised crime’ is 1 Student of Law School, Faculty og Law, Humanity and Arts, University of Wollongong 2 Muhammad Mustofa, ‘Bilateral Cooperation Between Indonesia and Malaysia in Combating Transnational Crime’ (2008) 5 Indonesian Journal of International Law 525, 526.
3 Transnational Organised Crime in East Asia and the Pacific, iii.
4 Michael Wesley, ‘Transnational Crime and Security Threats in Asia’ (Report, Australian defined broadly to refer to the ‘behaviour of ongoing organizations that involves two or more nations, with such behaviour being defined as criminal by at least one of these nations’.5 This definition is sufficiently broad and Agency for International Development, December 2007) 1.
5 Peng Wang and Jingyi Wang, ‘Transnational Crime: Its Containment through International Cooperation’ (2009) 5 Asian Social Science 25, 26, quoting J. Martin and A. Romano, Multinational Crime-Terrorism, Espionage, Drug & Arms Trafficking (Sage Publishing, 1999) 15.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 177 accounts for the possibility of jurisdictional discrepancies in the criminalisation of certain activities.
The rapid growth of transnational organised crime in South East Asia has been aided by the phenomenon of globalisation, the increased interconnectedness of the world’s sovereign states.6 Globalisation has had hugely beneficial effects for society, improving the global economy, propelling the ‘information revolution’, and allowing for increased international inter-personal connectivity on a scale previously unheard of.7 However, despite the numerous benefits globalisation has produced, it has also allowed criminals to seamlessly coordinate and carry out their illegal activities across national borders.8 The rapid growth of transnational organised crime cannot be understated, worldwide it was estimated in 2009 to generate over USD $870 billion annually.9 Within East Asia and the Pacific region alone, the 6 Wesley, above n 1, 1.
7 Wang and Wang, above n 2, 2.
8 Wesley, above n 1, 2.
9 United Nations Office on Drugs and Crime, Estimating Illicit Financial Flows Resulting from Drug Trafficking and other Transnational Organized Crimes, (October 2011) 7.
10 United Nations Office on Drugs and Crime, Transnational Organised Crime in East Asia and the Pacific A Threat Assessment, (April 2013) 1 growth of transnational organised crime has been so rapid in recent years that as of 2014 it has been conservatively estimated to generate over USD $90 billion annually, an amount which gains even greater significance when compared to the gross domestic product (GDP) of many countries in the South East Asian region.10 The rapid rise of transnational organised crime in the South East Asian region over recent years has prompted action by nations acting both domestically through legislation and policies, as well as internationally through bilateral and multilateral cooperation.11 At a regional level, this is evidenced through the efforts of the Association of South East Asian Nations (ASEAN), which have created the ASEAN Political-Security Community Framework which aims to facilitate and strengthen political and security cooperation within member States.12 ('Transnational Organised Crime in East Asia and the Pacific').
11 Muhammad Mustofa, ‘Bilateral Cooperation Between Indonesia and Malaysia in Combating Transnational Crime’ (2008) 5 Indonesian Journal of International Law 525, 526.
12 Adi Kusumaningrum, ‘The ASEAN PoliticalSecurity Community: ASEAN Security Cooperation on Combatting Transnational Crimes’ (2013) Indonesian Journal of International Law 89, 91.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 178 East Asia plays host to a vast array of transnational crimes,13 however, the ones which will be specifically addressed within this essay are human trafficking, terrorism, wildlife trafficking and piracy.
Each issue will be examined individually, with a preliminary outline of the crime's nature, followed by an analysis of specific domestic and international approaches towards combatting it.
It will be argued that the effective control of transnational organised crime requires more than individual States working individually to protect their own interests.
International cooperation between States that involves coherent and consistent strategies tailored to the nature of the crime is essential if transnational organised crime is to be effectively counteracted within East Asia.
II.
RESULT AND DISCUSSION Human Trafficking – Indonesia’s Domestic And International Response 13 Transnational Organised Crime in East Asia and the Pacific, iii.
14 Romli Atmasasmita, ‘International Cooperation on Combating Human Trafficking Especially Women and Children: A View from Indonesia’, (2004) 1 Indonesian Journal of International Law 673, 675.
15 United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, (February 2009) 8 (‘Global Report on Trafficking in Persons 2009’).
Human trafficking is considered to be one of the largest crimes of the twentieth century14 and despite increased global action to combat it since 2000 it remains one of the most pervasive transnational crimes.15 ‘Human trafficking’ is an umbrella term used to describe the situation in which one person holds another in involuntary servitude.16 Although generating a precise figure of the amount of trafficking victims worldwide is complex and has not recently been possible with any certainty,17 in 2005 it was estimated that there were over 2.5 million individuals being exploited as victims of human trafficking, with annual profits from trafficking amounting to over USD $31 billion.18 Human trafficking has detrimental impacts on almost all sectors of society; it harms the economy of both the country of origin and destination, victims often suffer endure serious traumatic conditions, causes breakdowns of social 16 U.S. Department of State, Trafficking in Persons Report (2011) <http://www.state.gov/j/tip/rls/tiprpt/ 2011/164220.htm>.
17 United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, (2014) 16 18 Jeremy Hakem, Transnational Crime in the Developing World (Global Financial Integrity, 2011) 7-8.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 179 structure, and through corruption it erodes the capacity of the state to effectively protect its citizens.19 Indonesia is a major source country of trafficking victims involved in forced labour and sexual exploitation.20 As a country, Indonesia’s people are susceptible to becoming victims of human trafficking for many reasons that include poverty, a lack of available employment and education, unequal gender roles,21 and the fact that as of 2013 only 67% of Indonesian children are registered with a birth certificate.22 A further contributing factor to Indonesia’s ongoing struggle with human trafficking is that it was not until the first decade of the 21st century that the country developed a concerted national effort to combat human trafficking.
Prior to this Indonesia did not have a law against all forms of 19 Ibid 10.
20 U.S. Department of State, Trafficking in Persons Report (2011) 191 <http://www.state.gov/j/tip/rls/tiprpt/ 2011/164232.htm>.
21 United Nations Office on Drugs and Crime, UNODC Country Programme for Indonesia, 2012-2015 (2012) 6 <https://www.unodc.org/documents/southeastas iaandpacific//indonesia/publication/ Country_Programme_ Indonesia.pdf>.
22 United Nations Children’s Fund, ‘Every Child’s Birth Right Inequities and Trends in human trafficking and the only specific legislative provisions on trafficking related to women and children.23 Enforcement of the trafficking laws was also lax, with maximum sentences rarely imposed, widespread official corruption, and government action limited by funding and the difficulty of monitoring an area the size of the Indonesian archipelago.24 This combination of factors made human trafficking effectively beyond the scope of Indonesia’s control and along with international pressures, made it necessary for the nation to work towards the introduction of its first comprehensive anti-trafficking legislation.25 Since the turn of the century, Indonesia has made significant advancements in developing a stronger approach towards human trafficking.26 In 2002 the Indonesian National Plan of Birth Registration’ (UNICEF, December 2013) 41.
23 Global Report on Trafficking in Persons 2009, 170.
24 U.S. Department of State, Trafficking in Persons Report (2002) <http://www.state.gov/j/tip/rls/tiprpt/2002/ 10680.htm> 25 Diana Betz, ‘Human Trafficking in Southeast Asia: Causes and Policy Implications (Master’s Thesis, Naval Postgraduate School, Monterey, California, 2009) 64.
26 Nugroho Wisnumurti, ‘Maritime Security Issues in Southeast Asia: An Indonesian Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 180 Action for the Elimination of Trafficking in Women and Children was enacted,27 and in 2007 the Indonesian government introduced comprehensive antitrafficking legislation.28 This was Indonesia’s first national legislation that defined human trafficking explicitly and expansively enough to cover all forms of trafficking into and out of Indonesia.
Whilst there has been an increase in antitrafficking prosecutions and convictions since the enactment of this legislation, reports suggest that corruption, a lack of funding for anti-trafficking task forces, and unfamiliarity with the antitrafficking laws have all contributed to a less than optimal response to human trafficking within Indonesia.29 Indonesia’s increased domestic efforts to combat human trafficking Perspective’ (2009) 6 Indonesian Journal of International Law 333, 342.
27 Global Report on Trafficking in Persons 2009, 170.
28 Law of the Republic of Indonesia Number 21 2007, Law on The Eradication of the Criminal Act of Trafficking in Persons.
29 U.S Department of State, Trafficking in Persons Report (2010) 177 <http://www.state.gov/documents/ organization/142979.pdf>.
30 United Nations Convention against Transnational Organised Crime, GA Res 55/25, UN GAUR, 55th sess, 62nd plen mtg, Agenda Item 105, Supp No 49, UN Doc A/RES/55/25 (15 November 2000) iii.
31 Ibid.
32 Ibid annex II (‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially came about following increased international attention towards human trafficking and the worldwide recognition of it as a serious transnational organised crime.30 A united global effort to address human trafficking was crystallised in 2000 with the introduction of the United Nations Convention against Transnational Organised Crime (Palermo Convention)31 and its associated Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol).32 The Palermo Convention and the Trafficking Protocol were introduced with the aims of removing differences between state laws, setting a common standard to combat human trafficking and Women and Children, Supplementing the United Nations Convention against Transnational Organised Crime’).
The Protocol defines ‘human trafficking’ to mean ‘the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 181 promoting cooperation between state parties to effectively achieve this.33 Indonesia became a signatory to both the Palermo Convention and the Trafficking Protocol on 12 December 2000, signifying their intent and willingness to adhere to and ratify both documents.34 However, it was not until 2009 that Indonesia ratified the Palermo Convention and the Trafficking Protocol, meaning that until this time the country was not considered bound to adhere to either document.35 It is evident that international focus has prompted Indonesia to work towards creating a stronger approach to address trafficking within the South East Asian region.
Such international focus is epitomised by the publishing by the United States Department of State’s Office to Monitor and Combat Trafficking in Persons of the ‘Trafficking in Persons Report’ (TIP Report).36 These reports have been 33 Geoffrey Yussouf, ‘Global Human Trafficking and the UN Convention against Transnational Organised Crime’ (2008) 1 University College London Human Rights Review 173, 179.
34 Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1115 UNTS 331 (entered into force 27 January 1980) arts 10, 18.
35 Ibid arts 2(1)(b), 16.
36 Rizal Sukma, ‘The Securitization of Human Trafficking in Indonesia’ (Working Paper, S. published annually since 2001 and rank countries into one of three tiers depending on their government’s level of compliance with the minimum standards for the elimination of trafficking outlined by the United States’ anti-trafficking legislation.37 Indonesia was placed in tier 3 in the 2001 TIP Report alongside the South East Asian countries of Burma and Malaysia, signalling that the country did not comply with the minimum standards for the elimination of trafficking and was not making significant efforts to do so.38 Countries placed in tier 3 are at risk of sanctions from the United States in the form of restrictions on funding, especially relating to counteracting of human trafficking.39 Consequentially, in the following years Indonesia increased its efforts to combat human trafficking which were acknowledged by its upgrade to tier 2 of the TIP report in 200340 where the country has remained Rajaratnam School of International Studies, Singapore, 3 July 2008, 8.
37 Ibid.
38 U.S. Department of State, Trafficking in Persons Report (2001) 87 < http://www.state.gov/documents/ organization/4107.pdf>.
39 Sukma, above n 32, 19.
40 U.S. Department of State, Trafficking in Persons Report (2003) 82 http://www.state.gov/documents/ organization/21555.pdf.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 182 since.41 It may therefore be argued that Indonesia has strengthened its approach towards human trafficking as part of cooperation on an international scale with the United States.
Were it not for this cooperation and the funding aid provided by the United States, it is probably that the Indonesian government would be unable to allocate sufficient resources to combat human trafficking.
Further, Indonesia has utilised international cooperation via bilateral and multilateral arrangements with other nations to address human trafficking.
Bilateral Memorandums of Understanding have been introduced with Malaysia,42 Taiwan43 and most recently the United Arab Emirates in 201544 with the intent of preventing the trafficking of individuals out of Indonesia.
Whilst these bilateral initiatives are an important component of 41 See U.S. Department of State’s Trafficking in Persons Reports from 2003-2015, which can be accessed at <http://www.state.gov/j/tip/rls/tiprpt/index.htm> 42 Memorandum of Understanding between Government of the Republic of Indonesia and the Government of Malaysia on the Recruitment and Placement of Indonesian Domestic Workers, signed 13 May 2006.
43 Wendy Zeldin, Indonesia; Taiwan: Agreement to Combat Human Trafficking (October 5 2012) Library of Congress <http://www.loc.gov/law/foreignnews/article/indonesia-taiwan-agreement-tocombat-human-trafficking/>.
addressing human trafficking, regional cooperative action is essential as there are many avenues through which people may be trafficked, and vast resources are required to enforce anti-trafficking laws.45 In recognition of the need for cohesive regional action to disrupt human trafficking throughout South East Asia, in 2002 the governments of Indonesia and Australia jointly convened the Bali Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime, now referred to as the Bali Process.46 The Bali Process aims to promote collaboration between all Member States in areas such as information sharing, cooperation between border security forces, strong national legislation and increasing opportunities for legal migration.47 44 United Arab Emirates National Committee to Combat Human Trafficking, UAE, Indonesia to Sign MoU on Anti-Human Trafficking (13 September 2015) <http://www.nccht.gov.ae/default.aspx?PageId= 66&EventID=2>.
45 Lindsey King, ‘International Law and Human Trafficking’ (2009) Human Rights & Human Welfare 88, 90 <http://www.du.edu/korbel/hrhw/researchdigest /trafficking/Trafficking.pdf>.
46 Wisnumurti, above n 22, 344 47 About the Bali Process, The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime < http://www.baliprocess.net/>.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 183 Whilst the Bali Process does not of itself create legally binding obligations on Member States it has acted as an important mechanism to enable better action against human trafficking at the regional level.48 The efforts of Indonesia both domestically and internationally combine to demonstrate the importance of transnational cooperation to combat human trafficking.
Whilst at a domestic level Indonesia has struggled to effectively address human trafficking due to factors including corruption and a lack of funding for task force, at the international level Indonesia has managed to cooperate as part of a broad regional approach.
International approaches to human trafficking that combine the funding, intelligence and force of many countries have proven to be a method of combatting human trafficking.
Terrorism – Indonesian And Asean Responses Since the turn of the century and the tragic terror attacks of 9/11 and the 48 Atmasasmita, above n 11, 679.
49 Jonathan Chow, ‘ASEAN Counterterrorism Cooperation Since 9/11’ (2005) 45 Asian Survey 302, 304.
50 Ibid 303.
2002 Bali Bombings, terrorism has featured in the global spotlight as an issue requiring worldwide cooperation.
Within South East Asia, terrorism has become an area of significant concern and has prompted regional cooperation so as to develop strategies to address the crime.49 Prior to the occurrence of 9/11, terrorism was primarily treated as a domestic issue within Asian countries with little transnational cooperation as terrorist groups tended to be located within a single country.50 Indonesia’s history of terrorism and counter-terrorism action provides a clear example of the problems associated with treating terrorist activities as a solely domestic problem.
Until the start of the 21st century terrorism was linked to separatist movements in several Indonesian provinces,51 however the governmental approach to these situations was authoritarian and used military force and anti-subversion legislation to crush uprisings.52 Prior to 9/11 Indonesia had not enacted specific anti-terrorism legislation nor had they become a signatory to or ratified the UN 51 Ibid 305.
52 Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) 143.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 184 Conventions53 relating to terrorist funding and bombings.54 Indeed, in the years prior to the Bali Bombings, the Indonesian government appeared to be in denial regarding terrorism, with Vice President Hamzah Haz asserting that there were no terrorists in Indonesia.55 The failure of Indonesia to recognise the threat of terrorism and lack of international cooperation to stand against terrorist activities ultimately culminated in the 2002 Bali Bombings which acted as the impetus for great counterterrorism activity both domestically and through international cooperation.
The usefulness of bilateral arrangements in combatting terrorist threats has been demonstrated through a memorandum of understanding signed between Indonesia and Australia in the wake of the Bali Bombings.56 As almost 53 See for example: International Convention for the Suppression of Terrorist Bombings, opened for signature 12 January 1998, 2149 UNTS 256 (entered into force 23 May 2001); International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2178 UNTS 197 (entered into force 10 April 2002); International Convention for the Suppression of Acts of Nuclear Terrorism, opened for signature 14 September 2005, 2445 UNTS 89 (entered into force 7 July 2007).
54 Roach, above n 49, 145.
55 Ibid 144.
56 Memorandum of Understanding between the Government of the Republic of Indonesia and the fifty percent of the victims of the Bali Bombings were Australian, Australia had a vested interest in ensuring that the perpetrators of the attack were brought to justice.57 The memorandum of understanding expressed the intent of both countries to enhance cooperation between defence, security and law enforcement agencies to combat terrorism.58 The framework provided by this agreement allowed Australian police to almost immediately respond following the Bali Bombings, coordinating a joint investigation which was ultimately responsible for the arrest of the alleged perpetrators.59 The undeniably effective efforts of Australian and Indonesian officials in the wake of the Bali Bombings was ultimately afforded through the presence of a memorandum of understanding and strong cooperative intent shared between Government of Australia on Combatting International Terrorism, signed February 2002.
57 Australian Federal Police, Submission No 62 to Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry into Australia’s Relations with Indonesia, November 2002, 927.
58 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia on Combatting International Terrorism, signed February 2002.
59 John McFarlane, ‘Regional and International Cooperation in Tackling Transnational Crime, Terrorism and the Problems of Disrupted States’ (2005) 12 Journal of Financial Crime 301, 305.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 185 the countries.
This demonstrates the importance of transnational cooperation designed to cater for the needs of both nations.
Within the ASEAN nations as a whole following the terrorist attacks of 9/11 there became an increased awareness of, although not an immediately productive response to the threat of terrorism.60 ASEAN member states differed in their belief as to how collectively they should act to fight terrorism due to differences in domestic political stability and varying concerns as to the impact that involving other nations in counter-terrorism may have.61 Indonesia is a notable example of this, as their government appeared ambivalent regarding multilateral counterterrorism cooperation with the United States.
The United States military action in the Middle East was seen by as an attack on Islam, not against terrorism by many Islamic groups within Indonesia.62 These groups were vocal in their denouncement of the United States and contributed to the initial Indonesian refusal to treat terrorism as a transnational issue.63 It 60 Chow, above n 46, 302.
61 Ibid 314.
62 Chow, above n 45, 307.
63 Ibid.
was not until after the Bali Bombings that Indonesia and ASEAN as a whole began to take serious action at a regional level to address terrorism.
ASEAN has been an essential component of coordinating regional action to combat terrorism in South East Asia as evidenced by the arrest and conviction of numerous individuals involved in the Bali Bombings and other terrorist activities.
One of the first arrests was of Abu Bakar Ba’aysir, the alleged spiritual leader of Jemaah Islamiyah, the terrorist organisation which claimed responsibility for the Bali Bombings.64 This was quickly followed by further arrests throughout Indonesia, Thailand and Singapore of individuals linked to the Bali Bombings and other terrorist activities.65 Many of these arrests were carried out following intelligence sharing between the three nations,66 demonstrating the benefits that multilateral cooperation conveys when combatting transnational crimes.
Greater consultation and cooperation between ASEAN members began to occur following the events of 64 Ibid 315.
65 Ibid 317.
66 Ibid 318.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 186 9/11 due to the recognition that a multifaceted approach was necessary to combat terrorism.67 One of the first arrangements was a trilateral agreement between the Philippines, Indonesia and Malaysia, later joined by Cambodia and Thailand.
This agreement committed the parties to share information including airline passenger lists, names of known criminals, fingerprint databases, as well as to strengthen border security between the countries.68 This agreement has proven useful but as the countries in South East Asia vary in their anti-terror legislation, greater harmonisation was necessary so that differences in legal systems did not impede in efforts to control terrorism.69 In recognition of the transnational capabilities of terrorism to compromise the entire South East Asian region, all ASEAN member countries adopted the ASEAN Convention on Counter Terrorism (ACCT) in 2007, which then came into force in 2011.70 The ACCT was introduced with the intent to unite the ASEAN member 67 Abdul Razak Ahmad, ‘The ASEAN Convention on Counter-Terrorism 2007’ (2013) 14 Asia-Pacific Journal on Human Rights and the Law 93, 93.
68 David Shambaugh and Michael Yahuda (eds), International Relations of Asia (Rowman & Littlefield Publishers, 2008) 200. countries, with the substantive content of the convention based on the twelve international treaties developed by the UN that were already in existence.71 The ACCT has helped to provide the ASEAN region with a more effective and regimented legal framework, an important characteristic given the varying anti-terrorism laws that exist throughout the ASEAN countries.72 Due to the transnational nature of terrorism and its increased potential to affect many nations at once, it has been imperative for the nations of South East Asia to develop a coordinated overarching strategy to address terrorism.
Bilateral arrangements, such as the memorandum of understanding and cooperation between Indonesia and Australia following the Bali Bombings have been important as those nations were most affected by the attacks.
However, it is important for bilateral arrangements to be part of a greater regional response such as the ACCT so as to facilitate effective preventative and counter-active measures across all areas.
69 Ahmad, above n 63, 96.
70 Ibid 94.
71 Ibid 104.
72 Ibid 96.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 187 Piracy: The Malacca and Singapore Straits, Trilateral, Regional And Extra-Regional Cooperation Piracy is one of the world’s oldest crimes, and remains a transnational crime of significant concern globally and particularly South East Asia today.
73 The Malacca and Singapore Straits (the Straits), located in the shared territorial waters of Indonesia, Malaysia and Singapore (the littoral states) are considered as two of the most important shipping straits in the world.
They provide the shortest navigational route between the Indian Ocean and South China Sea and play host to around 60,000 vessels per year, of which between thirty and forty percent are oil tankers, essential to the supply of the energy needs to many countries.74 It is therefore imperative that vessels passing through the Straits are able to do so free from the threat of piracy.
Piracy within the Straits has risen since the early 1990s in accordance with wider economic and legal factors.75 According to annual reports from the 73 Rheny Wahyuni Pulungan, ‘Enhancing Maritime Security in the Malacca Strait: Cooperation Against Piracy and Maritime Terrorism’ (2010) 7 Indonesian Journal of International Law 300, 309.
74 Ibid 301.
75 Ibid 302. International Maritime Bureau (IMB), instances of piracy steadily rose until from 1990 until 1998, before the effects of the 1997 Asian financial crisis drove instances of piracy to significantly higher levels until 2004.76 It was evident by this point to the littoral states that efforts to combat piracy in the Straits were failing, and that stronger regional cooperation was required to address piracy.
Prior to the formation of a trilateral agreement between the littoral states, there were significant difficulties with transnational cooperation to counteract piracy in the Straits.77 Due to the nature of the Straits, international law was ill-equipped to provide how acts of piracy should be dealt with.
The United Nations Convention on the Law of the Sea (UNCLOS) defines piracy narrowly, limiting it to illegal acts of violence or detention committed on the high seas or outside the jurisdiction of any state.78 The narrowness of this definition would exclude it from covering many attacks in 76 Ibid.
77 Ibid 303.
78 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) art 101 (‘UNCLOS’).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 188 the Straits, which occur within the territorial waters of the littoral states.
Additionally, due to concerns of national sovereignty, the littoral states and extra-regional states lacked a coordinated plan of action to combat piracy within the Straits.
National sovereignty, the right of a state to maintain absolute governance over aspects within its jurisdiction79 has been a concern of both Indonesia and Malaysia and a key factor in their consistent rejection of extra-regional offers to assist in patrolling the Straits.80 Furthermore, the complexities of pursuing a pirate vessel are compounded when they take place between states that share maritime borders.
As provided by the UNCLOS, a coastal state is allowed to pursue a foreign vessel from within its own territorial waters into international waters, or to pursue a pirate ship whilst in international waters.81 However, both these rights cease once the pursued ship enters another state’s territorial waters,82 effectively preventing arrest unless there 79 Pulungan, above n 69, 303.
80 Ibid 320.
81 UNCLOS, arts 105, 111.
82 Ibid arts 105, 111(3).
83 Hersapta Mulyono, ‘Yo Ho Ho and a Bucket of Cash the Need to Enchance [sic] Regional Effort to Combat Piracy and Armed Robbery is coordination with the state whose territory the pursued ship has entered.
In recognition of the need for law enforcement cooperation to address the problems created by the gap in international law relating to piracy within the Straits, coordinated naval patrol arrangements between Indonesia and Singapore, and Indonesia and Malaysia have been carried out since the early 1990s.83 The success of these agreements prompted the establishment of the first trilateral maritime security arrangement between the littoral states, established in 2004 and known as the Malacca Straits Patrol Network.84 This arrangement established year-round patrols involving dedicated ships from each of the littoral states.85 Following the early success of these patrols, in 2005 Thailand became a member of the Patrol Network and the four countries began to conduct air patrols of the Malacca Strait as part of the ‘Eyes in the Sky Program’.86 It is clear that both of these patrols have had a positive impact on the Against Ships in Southeast Asia’ (2015) 12 Indonesian Journal of International Law 60, 80.
84 Shicun Wu and Keyuan Zou, Maritime Security in the South China Sea: Regional Implications and International Cooperation (Ashgate, 2009) 61.
85 Mulyono, above n 79, 80.
86 Pulungan, above n 69, 322.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 189 rates of piracy in the Straits; annual reports from the IMB demonstrate that instances of piracy remained low in the years following the introduction of the maritime and air patrols.87 Despite the success of the littoral states in combatting transnational piracy, there are areas in which improvements could be made to domestic legislation, policies and international agreements so as to further strengthen their ability to protect the Straits.
First, the maritime patrols conducted by the littoral states are coordinated as opposed to joint patrols, meaning that there is no right for one state to pursue a pirate vessel into another state’s territorial waters.88 This is in contrast to the Eyes in the Sky Program which allows aircraft to pursue a pirate vessel through another state’s territory.89 The establishment of an agreement between the littoral states to allow joint patrols into areas in which piracy frequently occurs would allow the enforcement of jurisdiction over the pirates inside another state’s territory.90 This would increase the capacity of the patrols to arrest and prosecute suspected 87 Ibid 302.
88 Ibid 324.
89 Ibid 322.
90 Ibid 324. pirates and be beneficial to the control of piracy in the Straits.
Additionally, the establishment of a trilateral information and intelligence exchange agreement between the littoral states would allow greater coordination in relation to incidences of piracy.
Such an agreement could mirror an arrangement between the Philippines, Indonesia and Malaysia which established a framework of areas in which the states would cooperate, how jurisdiction for transnational crimes would be determined, and how information would be communicated between the states.91 This would prove beneficial to the littoral states not only in the ability to better coordinate patrols to arrest suspected pirates, but also if issues of jurisdiction arose as to which state should have the capacity to prosecute each offender.
A further method of transnational cooperation that could be used to great effect by the littoral states in the Straits is the introduction of shiprider agreements.
Shiprider agreements facilitate the placement of law 91 Agreement on Information exchange and Establishment of Communication Procedures, Indonesia-Malaysia-Philippines (signed and entered into force 7 May 2002).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 190 enforcement personnel from one state on board another state’s vessel.
Whilst on board, the shiprider has the authority to permit pirates to be chased into their state’s territorial waters.92 This would address the current inability of the littoral states to engage in hot pursuit of pirate vessels and provide an additional advantage of being able to carry out investigations on behalf of their state in accordance with their national laws.93 Such agreements have been put in place between other states,94 and their usefulness has been lauded by the United Nations Security Council.95 Within the context of the Straits, the implementation of a trilateral shiprider agreement would further strengthen the ability of the littoral states to effectively combat transnational piracy.
As a whole, the efforts of the littoral states to address piracy within the Straits have been successful as evidenced by the decline in incidences of piracy since the introduction of a trilateral agreement between the nations.96 Due to the close-packed nature 92 Mulyono, above n 79, 81.
93 Ibid.
94 Agreement between the Government of The Republic of Trinidad and Tobago and the Government of the United States of America Concerning Maritime Counter-Drug Operations (signed and entered into force 4 March 1996).
of territorial jurisdictions within the Straits, trilateral cooperation in the form of coordinated border patrols is an effective way to manage the occurrence of piracy.
However, greater trilateral coordination in the form of consistent legislation, permission to carry out hot pursuits of suspected pirates, greater information sharing and the introduction of shiprider agreements would almost certainly increase the ability to manage the transnational nature of piracy within the Straits.
Illegal Wildlife Trafficking: Thailand, South East Asian and Asean Responses The illegal trafficking of wildlife is considered to be a transnational crime of serious concern to all nations, both in terms of the threat it poses to biodiversity through excessive hunting, and its deleterious impact on the social and economic growth potential of humans.97 The combined value of the illegal wildlife trade is estimated at US $2.5 billion per year,98 of which 25% is 95 Mulyono, above n 79, 80.
96 Pulungan, above n 69, 302.
97 Transnational Organised Crime in East Asia and the Pacific, 77.
98 Transnational Organised Crime in East Asia and the Pacific, 86.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 191 believed to derive from South East Asia.99 Wildlife may be illegally trafficked from one corner of the globe to the other, making this a transnational crime that requires strong legislation and enforcement domestically, as well as regional and worldwide cooperation.
The first global effort to combat the illegal trafficking of wildlife was established by the United Nations Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), passed in 1973.100 CITES was established with the aim of ensuring that the international trade in wildlife would not threaten their survival,101 however its usefulness as a tool to combat wildlife trafficking is somewhat limited.
Though the vast majority of states, and all countries in South East Asia are now a party to CITES,102 it lacks the force of law unless implemented into 99 Jolene Lin, ‘Tackling Southeast Asia’s Illegal Wildlife Trade’ (2005) 9 Singapore Year Book of International Law 191, 201.
100 Convention on the International Trade in Endangered Species of Flora and Fauna, opened for signature 3 March 1973, 993 UNTS 244 (entered into force 1 July 1975).
101 Ibid 245.
102 181 of the 193 UN member states are now parties to CITES, with only Andorra, the Democratic People's Republic of Korea, the Federated States of Micronesia, Haiti, Kiribati, the Marshall Islands, Nauru, South Sudan, Timordomestic legislation and effectively enforced.103 Further, the necessity of domestic legislation for enforcement has additional weakness.
In situations where states fail to enact legislation that adequately matches the standard set by CITES, or the penalties for contravention are weak, traffickers are able to exploit loopholes in laws and are not sufficiently deterred from engaging in the behaviour.104 This weakness is demonstrated by the trade in ivory within Thailand, where it remains legal to trade in domestic ivory.105 This loophole has been exploited to great effect by traffickers of African elephant ivory who are able to ‘launder’ illegally imported ivory so that it may be passed off as legal domestic ivory within Thailand.106 Global awareness of the lax efforts to curb ivory trafficking in Thailand led to a request by the Leste, Tonga, Turkmenistan, and Tuvalu abstaining.
103 Lin, above n 95, 192.
104 Kristy Phillips, ‘Earth Can’t Bear it: How International Law Fails to Protect the Endangered Malayan Sun Bear’ (2004) 28 Suffolk Transnational law Review 113, 130.
105 Ranee Khooshie Lal Panjabi, ‘For Trinkets, Tonics, and Terrorism: International Wildlife Poaching in the Twenty-First Century’ (2014) 43 Georgia Journal of International and Comparative Law 1, 37.
106 Ibid 38.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 192 Conference of Parties to CITES for Thailand to develop a national ivory action plan (NIAP) in 2013,107 followed by a revision of that plan in 2014.108 Following these recommendations, Thailand has been implementing its revised NIAP as of October 2014109 and has introduced new110 and amended legislation111 to improve control of both the legal domestic and illegal international ivory trade.
In addition, stronger law enforcement, monitoring of the domestic trade, increased customs inspections and the sharing of intelligence and information both domestically and internationally has resulted in over 15 cases of arrests and the confiscation of at least 13 tonnes of ivory since October 2014.112 The recent success of Thailand in addressing the illegal trafficking of ivory can be seen as a direct result of their commitment to work as part of a global network to 107 National Ivory Action Plans, 64th meeting of the Standing Committee of CITES, SC64 Doc 2 (14 March 2013) <https://cites.org/sites/default/files/eng/com/sc/6 4/E-SC64-02.pdf>.
108 Interpretation and Implementation of the Convention – Species Trade and Conservation: Elephants, 65th meeting of the Standing Committee of CITES, SC65 Com 7 (11 July 2014) <https://cites.org/sites/default/files/ eng/com/sc/65/com/E-SC65-Com-07.pdf>.
109 Sommal Kittayakul, Progress Report on the Implementation of Revised Thailand’s National combat the transnational illegal wildlife trade.
However, the usefulness of a state acting alone to increase law enforcement controls is also limited as this may lead to traffickers simply redirecting their efforts into countries with weaker control mechanisms.113 In effect this means that the success of combatting illegal wildlife trafficking is dependent on how all source, transit and destination countries of illegal wildlife cooperate in the areas of legislation, policy, information sharing and enforcement.
Evidence of the effectiveness of multinational enforcement cooperation to combat wildlife trafficking is provided by a 2014 operation in Africa, referred to as Operation Cobra II which involved law enforcement operatives from 28 source, transit and destination countries across the world.114 Cooperation between Ivory Action Plan for SC66, 66th meeting of the Standing Committee of CITES, SC66 Doc 29 (15 September 2015) annex 8 (‘Thailand National Ivory Action Plan’).
110 Elephant Ivory Act B.E.
2558 (2015) (Thailand).
111 Wild Animal Reservation and Protection Act (No 3) B.E.
2557 (2014) (Thailand); Beast of Burden Act B.E.
2482 (1939) (Thailand).
112 Thailand National Ivory Action Plan, 5.
113 Lin, above n 95, 202.
114 Panjabi, above n 100, 77.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 193 police, customs and wildlife officials involving information sharing and coordinated operations resulted in the arrest of more than 400 individuals and 350 illegal wildlife seizures.115 Such success provides support for the necessity of international cooperation between all countries that have an interest in preventing wildlife trafficking.
In recognition of the importance of regional action in combatting illegal wildlife trafficking, a combined South East Asian response has been the focus of ASEAN members since 2004.116 The ASEAN Statement on CITES outlined important areas of cooperation and pledged to establish a Regional Action Plan to achieve the objects of the Statement.117 This pledge was realised with the establishment of the ASEAN Wildlife Enforcement Network 115 Operation Cobra II, ‘African, Asian and North American Law Enforcement Officers Team up to Apprehend Wildlife Criminals’ (Press Release, 10 February 2014) 1 <https://cites.org/sites/default/files/eng/news/su ndry/ 2014/operation_cobra_ii_pr.pdf>.
116 ASEAN Statement on CITES, 13th meeting of the Conference of the Parties to CITES (11 October 2004) <http://www.asean.org/?static_post=aseanstatement-on-cites>.
117 Lin, above n 95, 196.
118 Ibid 204.
119 ASEAN Regional Action Plan on Trade in CITES Wild Fauna and Flora, 2011-2015, (ASEAN-WEN) in 2005, and marks the first time that all South East Asian nations have entered into cooperative efforts to curb the transnational trafficking of wildlife.118 ASEAN-WEN promotes the establishment of uniform legislation and policies, the strengthening of international law enforcement collaborations, and increased awareness of the legality of the trade in wildlife.119 Together with wildlife enforcement networks that have been established in all ASEAN countries, Asia’s Regional Response to Endangered Species Trafficking (ARREST) Program, and TRAFFIC South East Asia,120 ASEAN-WEN has had great success, as demonstrated by the number of law enforcement actions reported in their annual updates.121 The actions of both Thailand and ASEAN as a whole indicate that the special workshop of the ASEAN Experts Group on CITES (27 May 2011).
120 ASEAN Wildlife Enforcement Network, What is ASEAN-WEN?
(2015) <http://www.asean-wen.org/ index.php/aboutus/what-is-asean-wen>.
121 ASEAN Wildlife Enforcement Network, Action Update for the Year 2012 Law Enforcement Actions in Southeast Asia to Protect Threatened Flora and Fauna (2012) < http://www.asean-wen.org/index.php/reportspublications/file/53-asean-wen-action-updatesummary-2012>.
There were 218 wildlife enforcement actions in 2011 with over 2 million live animals, 8000 dead animals and 23 metric tons of wildlife recovered.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 194 trafficking of wildlife can only be effectively combatted through domestic efforts combined with a strong regional commitment.
The progress of Thailand in implementing its NIAP to combat the illegal trade in ivory emphasises that domestic action is essential to address transnational crime.
However, the cooperation of nations is essential when confronted with a transnational crime as fluid as the illegal trafficking of wildlife.
III.
CONCLUSION The growing phenomenon of transnational organised crime is one which affects all nations, but has the potential for its greatest impact when efforts to address it are not coordinated across national boundaries.
As demonstrated through the above analysis of wildlife trafficking, human trafficking, piracy and terrorism, the methods used to combat transnational organised crime must not only be coordinated on an international level, but also tailored to the unique qualities of the specific crime.
This is because each crime has its impact at different points within individual countries and affects different countries in varying ways.
Maritime piracy tends to affect countries with shared national borders as pirates move seamlessly across territorial boundaries, meaning that international cooperation must take this into account to be successful.
Other crimes such as wildlife or human trafficking have their impact over a wider range of countries, meaning that strategies such as uniformly strong legislation, information and intelligence sharing may be more effective in combatting transnational organised crime.
For all transnational crimes, what is imperative is that nations do not act alone, and instead cooperate through employing methods tailored to the crime in question.
REFERENCES A Articles/Books/Reports Ahmad, Abdul Razak, ‘The ASEAN Convention on CounterTerrorism 2007’ (2013) 14 AsiaPacific Journal on Human Rights and the Law 93 Atmasasmita, Romli, ‘International Cooperation on Combating Human Trafficking Especially Women and Children: A View from Indonesia’, (2004) 1 Indonesian Journal of International Law 673 Chow, Jonathan ‘ASEAN Counterterrorism Cooperation Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 195 Since 9/11’ (2005) 45 Asian Survey 302 Hakem, Jeremy, Transnational Crime in the Developing World (Global Financial Integrity, 2011) King, Lindsey, ‘International Law and Human Trafficking’ (2009) Human Rights & Human Welfare 88, 90 <http://www.du.edu/korbel/hrhw /researchdigest/trafficking/Traffi cking.pdf> Kittayakul, Sommal, Progress Report on the Implementation of Revised Thailand’s National Ivory Action Plan for SC66, 66th meeting of the Standing Committee of CITES, SC66 Doc 29 (15 September 2015) annex 8 Kusumaningrum, Adi, ‘The ASEAN Political-Security Community: ASEAN Security Cooperation on Combatting Transnational Crimes’ (2013) Indonesian Journal of International Law 89 Lin, Jolene, ‘Tackling South East Asia’s Illegal Wildlife Trade’ (2005) 9 Singapore Year Book of International Law 191 McFarlane, John, ‘Regional and International Cooperation in Tackling Transnational Crime, Terrorism and the Problems of Disrupted States’ (2005) 12 Journal of Financial Crime 301 Mulyono, Hersapta, ‘Yo Ho Ho and a Bucket of Cash the Need to Enchance [sic] Regional Effort to Combat Piracy and Armed Robbery Against Ships in South East Asia’ (2015) 12 Indonesian Journal of International Law 60 Mustofa, Muhammad, ‘Bilateral Cooperation Between Indonesia and Malaysia in Combating Transnational Crime’ (2008) 5 Indonesian Journal of International Law 525 Panjabi, Ranee Khooshie Lal, ‘For Trinkets, Tonics, and Terrorism: International Wildlife Poaching in the Twenty-First Century’ (2014) 43 Georgia Journal of International and Comparative Law 1 Phillips, Kristy, ‘Earth Can’t Bear it: How International Law Fails to Protect the Endangered Malayan Sun Bear’ (2004) 28 Suffolk Transnational law Review 113 Pulungan, Rheny Wahyuni, ‘Enhancing Maritime Security in the Malacca Strait: Cooperation Against Piracy and Maritime Terrorism’ Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 196 (2010) 7 Indonesian Journal of International Law 300 Roach, Kent, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2011) Shambaugh, David and Michael Yahuda (eds), International Relations of Asia (Rowman & Littlefield Publishers, 2008) Sukma, Rizal, ‘The Securitization of Human Trafficking in Indonesia’ (Working Paper, S. Rajaratnam School of International Studies, Singapore, 3 July 2008 United Nations Children’s Fund, ‘Every Child’s Birth Right Inequities and Trends in Birth Registration’ (UNICEF, December 2013) United Nations Office on Drugs and Crime, Estimating Illicit Financial Flows Resulting from Drug Trafficking and other Transnational Organized Crimes, (October 2011) United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, (February 2009) United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons, (2014) United Nations Office on Drugs and Crime, Transnational Organised Crime in East Asia and the Pacific A Threat Assessment, (April 2013) United Nations Office on Drugs and Crime, UNODC Country Programme for Indonesia, 20122015, (2012) U.S. Department of State, Trafficking in Persons Report (2001) U.S. Department of State, Trafficking in Persons Report (2002) U.S. Department of State, Trafficking in Persons Report (2003) U.S. Department of State, Trafficking in Persons Report (2010) U.S. Department of State, Trafficking in Persons Report (2011) Wang, Peng and Jingyi Wang, ‘Transnational Crime: Its Containment through International Cooperation’ (2009) 5 Asian Social Science 25 Wesley, Michael, ‘Transnational Crime and Security Threats in Asia’ (Report, Australian Agency for International Development, December 2007 Wisnumurti, Nugroho, ‘Maritime Security Issues in South East Asia: An Indonesian Perspective’ Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 197 (2009) 6 Indonesian Journal of International Law 333 Wu, Shicun and Keyuan Zou, Maritime Security in the South China Sea: Regional Implications and International Cooperation (Ashgate, 2009) B – Legislation Beast of Burden Act B.E.
2482 (1939) (Thailand) Elephant Ivory Act B.E.
2558 (2015) (Thailand) Law of the Republic of Indonesia Number 21 2007, Law on The Eradication of the Criminal Act of Trafficking in Persons Wild Animal Reservation and Protection Act (No 3) B.E.
2557 (2014) (Thailand) C – Treaties Agreement between the Government of The Republic of Trinidad and Tobago and the Government of the United States of America Concerning Maritime CounterDrug Operations (signed and entered into force 4 March 1996) Agreement on Information exchange and Establishment of Communication Procedures, IndonesiaMalaysia-Philippines (signed and entered into force 7 May 2002) Convention on the International Trade in Endangered Species of Flora and Fauna, opened for signature 3 March 1973, 993 UNTS 244 (entered into force 1 July 1975) International Convention for the Suppression of Acts of Nuclear Terrorism, opened for signature 14 September 2005, 2445 UNTS 89 (entered into force 7 July 2007) International Convention for the Suppression of Terrorist Bombings, opened for signature 12 January 1998, 2149 UNTS 256 (entered into force 23 May 2001) International Convention for the Suppression of the Financing of Terrorism, opened for signature 10 January 2000, 2178 UNTS 197 (entered into force 10 April 2002) Memorandum of Understanding between Government of the Republic of Indonesia and the Government of Malaysia on the Recruitment and Placement of Indonesian Domestic Workers, signed 13 May 2006 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 198 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia on Combatting International Terrorism, signed February 2002 United Nations Convention against Transnational Organised Crime, GA Res 55/25, UN GAUR, 55th sess, 62nd plen mtg, Agenda Item 105, Supp No 49, UN Doc A/RES/55/25 (15 November 2000) United Nations Convention against Transnational Organised Crime, GA Res 55/25, UN GAUR, 55th sess, 62nd plen mtg, Agenda Item 105, Supp No 49, UN Doc A/RES/55/25 (15 November 2000) annex II United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1115 UNTS 331 (entered into force 27 January 1980) D – Other About the Bali Process, The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime < http://www.baliprocess.net/> ASEAN Regional Action Plan on Trade in CITES Wild Fauna and Flora, 2011-2015, special workshop of the ASEAN Experts Group on CITES (27 May 2011) ASEAN Statement on CITES, 13th meeting of the Conference of the Parties to CITES (11 October 2004) <http://www.asean.org/?static_p ost=asean-statement-on-cites> ASEAN Wildlife Enforcement Network, Action Update for the Year 2012 Law Enforcement Actions in South East Asia to Protect Threatened Flora and Fauna (2012) < http://www.aseanwen.org/index.php/reportspublications/file/53-asean-wenaction-update-summary-2012> ASEAN Wildlife Enforcement Network, What is ASEAN-WEN?
(2015) <http://www.asean-wen.org/ index.php/about-us/what-isasean-wen> Australian Federal Police, Submission No 62 to Joint Standing Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 199 Committee on Foreign Affairs, Defence and Trade, Inquiry into Australia’s Relations with Indonesia, November 2002 Betz, Diana, ‘Human Trafficking in South East Asia: Causes and Policy Implications (Master’s Thesis, Naval Postgraduate School, Monterey, California, 2009) 64 Interpretation and Implementation of the Convention – Species Trade and Conservation: Elephants, 65th meeting of the Standing Committee of CITES, SC65 Com 7 (11 July 2014) <https://cites.org/sites/default/fil es/ eng/com/sc/65/com/E-SC65Com-07.pdf> National Ivory Action Plans, 64th meeting of the Standing Committee of CITES, SC64 Doc 2 (14 March 2013) https://cites.org/sites/default/file s/eng/com/sc/64/E-SC64-02.pdf Operation Cobra II, ‘African, Asian and North American Law Enforcement Officers Team up to Apprehend Wildlife Criminals’ (Press Release, 10 February 2014) <https://cites.org/sites/default/fil es/ eng/news/sundry/ 2014/operation_cobra_ii_pr.pdf > United Arab Emirates National Committee to Combat Human Trafficking, UAE, Indonesia to Sign MoU on Anti-Human Trafficking (13 September 2015) <http://www.nccht.gov.ae/ default.aspx?
PageId=66&EventID=2> Zeldin, Wendy, Indonesia; Taiwan: Agreement to Combat Human Trafficking (October 5 2012) Library of Congress <http://www.loc.gov/law/foreign -news/article/indonesia-taiwanagreement-to-combat-humantrafficking/>
Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 125 A COMPARATIVE STUDY OF THE LEGAL FRAMEWORKS FACILITATING INDIGENOUS LAND MANAGEMENT IN POSTCOLONIAL SOCIETIES: INDIGENOUS AUSTRALIA AND INDONESIAN ADAT LAW Carly Boag1 ABSTRACT Indigenous Land Management (ILM) promotes environmental justice by “protecting and fulfilling of human rights through legal empowerment of people”50 through meaningful participation in environmental decision making from a regional to an international scale, acknowledgment of cultural differences and the equal distribution of environmental benefits51.
This paper presents a comparative study on Australia and Indonesian practice of ILM.
Although there are historical, cultural and economic differences between Australia and Indonesia as well as different legal ideologies, a comparative study of the different legal frameworks surrounding ILM will provide an insight into the benefits and limitations of divergent policy strategies and the best way forward for Indigenous peoples in the Asian-Pacific region.
While development on both countries on ILM practice can be seen as positive steps towards effective ILM, however, much remains to be done to achieve environmental justice for the worlds Indigenous people.
Keywords: Indigenous, comparative study, Australia and Indonesia 123 I.
INTRODUCTION Indigenous Land Management (ILM) encompasses traditional philosophies and practices of Indigenous people with contemporary scientific techniques to help improve the management and conservation of 1 Student of Law School, Faculty of Law, Humanity and Arts, University of Wollongong 2Nyoman Nurjaya, ‘Access to ecological justice for the marginalised people of Indonesia: Is it a genuine or pseudo recognition and protection?’ (Paper presented at International Conference on “Access to Justice: Promoting Public Awareness, Participation and Action”, Brawijaya University East Java, 10th to 11th November 2015) 1. ecosystems.
An effective legal framework for ILM promotes environmental justice by “protecting and fulfilling of human rights through legal empowerment of people”4 through meaningful participation in environmental decision making from a regional to an international scale, 3 Nurjaya, above n, 1, 1-11.
4Nyoman Nurjaya, ‘Access to ecological justice for the marginalised people of Indonesia: Is it a genuine or pseudo recognition and protection?’ (Paper presented at International Conference on “Access to Justice: Promoting Public Awareness, Participation and Action”, Brawijaya University East Java, 10th to 11th November 2015) 1.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 126 acknowledgment of cultural differences and the equal distribution of environmental benefits5.
Both Indonesia and Australia were colonised by European powers with devastating effects on the Indigenous people.
Since the 1980’s there has been increasing international attention surrounding the lack of environmental justice accessible to Indigenous peoples around the world.
Regional, national and international legal frameworks are in place in both Australia and Indonesia to promote globally recognized concepts of ILM, however there is a need for more cohesive and integrated approach at all levels of environmental governance.
Although there are historical, cultural and economic differences between Australia and Indonesia as well as different legal ideologies, a comparative study of the different legal frameworks surrounding ILM will provide an insight into the benefits and limitations of divergent policy strategies and the best way forward for Indigenous peoples in the Asian-Pacific region.
This paper presents a comparative study on 5 Nurjaya, above n, 1, 1-11.
6 Marett Leiboff &Mark Thomas, Legal Theories Contexts and Practices (Thomas Reuters Australia, 2nd ed, 2014).
Australia and Indonesian practice of ILM.
While development on both countries on ILM practice can be seen as positive steps towards effective ILM, however, much remains to be done to achieve environmental justice for the worlds Indigenous people.
II.
RESULT AND DISCUSSION Post Colonial Legal Analysis As law is fundamentally a form of ideology, social and political interactions between human and the natural environment cannot be ignored in environmental policy.
Postmodern analysis of law rejects the positivist view that law is separate from the society in which it operates6.
Law is inherently a social and political entity and can never be a completely autonomous institution.
There has recently been greater research into community based resource management and a stronger recognition that social actions and human interactions with the environmental can play an important role in conservation7.
However there are significant social and 7 Sue Jackson ‘Compartmentalising Culture: The Articulation and Consideration of Indigenous Values in Water Resource Management’ (2006) 37(1) Australian Geographer 19.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 127 cultural barriers to ILM manifested in national and regional legal frameworks that either obstruct Indigenous tradition and culture often through restricting land rights and traditional economic activities.
The postmodern concept of binary opposites is also an important insight into the barriers inherent in the Western environmental government frameworks.
Derrida (2004) argues that binary opposites exist in the Western legal system where the dominant, often Western form governs the supposedly inferior form8.
In the context of ILM binary opposition exists between modern scientific knowledge and traditional ways of knowing, as well as between the human and natural environments.
Indigenous philosophies of land management traditionally revolve around stewardship or eco-centric values and deeply entwine the environment, cultural identity and community.
This is in direct contrast to Western anthropogenic views of nature as a resource to be exploited for individual benefit.
Scientific or western forms of 8 Jacques Derrida Positions (2nd ed, Continuum London, 2004).
9 Ines Ayari ‘The Dynamic between indigenous rights and environmental governance: A preliminary analysis and focus on the impact of knowledge are just one form of understanding of the environment.
Sustainable and equitable development for future generations cannot be achieved if only egocentric utility-based views of natural resources are implemented in management policy.
International Framework for ILM The international community has recognised that different groups of Indigenous people globally have strong spiritual ties to their natural environment and have practiced sustainable management of various ecosystems for years of generations.
Since the 1980’s Indigenous people have relatively began to actively participate in United Nations (UN) Human Rights discussions and their concerns have gained increasing international attention9.
International frameworks on the rights of Indigenous people are extremely broad and there are relatively few conventions and declarations that relate specifically to the implementation of governance structures for ILM.
The UN Universal Declaration on Human Rights and the International climate change governance through the Reducing Emissions from Deforestation and Forest degradation (REDD) programme’ (2014) 10(1) International Journal of Indigenous Peoples 81.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 128 Convention on the Elimination of all Forms Racial Discrimination form an important basis for Indigenous rights in Australia and Indonesia, the more specific provisions discussed are useful for providing guidance on ILM standards and values accepted by the global community10.
The first specific Convention on Indigenous peoples rights was the 1989 International Labour Organisation’s Convention Concerning Indigenous and Tribal Peoples in Independent Countries.
The convention embodied a paternalistic approach to ILM stating that “governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples.
"11 This legally binding convention was not ratified by any South East Asian country including Australia and Indonesia.
The current international law framework has shifted to a self determination approach embodied in the 2007 UN Declaration 10 Garth Nettheim et al Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (Aboriginal Studies Press for The Institute of Aboriginal and Torres Strait Islander Studies, 2002).
11 International Labour Organisation Convention concerning Indigenous and Tribal Peoples in Independent Countries Convention on the Rights of Indigenous Peoples (UNDRIP).
The UNDRIP general assembly adopted the principle of recognition that respect of “Indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.12” Further article 29(1) of the declarations states that “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.13” Although Australia initially voted against the adoption of the Declaration, both Australian and Indonesia have recognised the declaration.
Although the UNDRIP is non-binding it sets important global standards for the implementation of policies relating to Indigenous people “based on proper respect for the rights of Indigenous peoples in terms of their own law, traditions and culture”14 moving towards contemporary post-colonial legal structures.
opened for signature 17 June 1989, No.
169 (Entered into force 05 September 1991) Art 2.
12 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61 st sess, 107 th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007).
13 Ibid, Art 29(1).
14 Nettheim et al, above n 7.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 129 Participation of Indigenous people in environmental management and the ability to participate in sustainable development is emphasised in the 1992 Rio Declaration on the Environment and Development.
Principle 22 of the declaration recognises that, “Indigenous people and their communities…have a vital role in environmental management and development due to their knowledge and traditional practices.
States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.15” Although it is nonbinding, the Rio Declaration reaffirms and expands upon the principles of the first UN Conference on the environment, namely the 1972 Stockholm Declaration.
The 1999 Rio Conference aimed to draw broad human rights concepts into more specific standards in relation to ILM adopting Agenda 21 in the Programme of Action for Sustainable Development which states that “national 15 Rio Declaration on Environment and Development, UN Doc /CONF.151/5/Rev 1 (12 August 1992) Principle 22.
16 Rio Declaration on Environment and Development, UN Doc /CONF.151/5/Rev 1 (12 August 1992) Agenda Item 21 ch 26 art 26(1).
and international efforts to implement environmentally sound and sustainable development should recognise, accommodate, promote and strengthen the role of indigenous people and their communities.16” The 1993 UN Convention on Biological Diversity (UNCBD) opened for signing at the Rio Conference is a legally binding agreement that carries international obligations for signatories.
The UNCBD requires participants to “protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements”17 and to “preserve knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.18” Both Australia and Indonesia attended the Rio Conference and are signatories to the UNCBD.
17 The United Nations Convention on Biological Diversity opened for signature 5 June 1992 1760 UNTS 79, 31 ILM 818 (entered into force 29 December 1993) art 10.
18 Ibid, Art 8.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 130 International governance strategies relating to ILM are comparatively fragmented in their regulation and implementation.
UN declarations on the environment are also criticised for being unenforceable “soft law” with a lack of accountability for breaches to the international community.
Issues with global international framework are inherent in the structure of international law as a “top down” approaches overlooking the often very specific nature of the environmental management challenges faced by local Indigenous communities19.
Not all Indigenous peoples want the same institutional structures and negotiation must take place to develop accepted international standards into a more regional context20.
This is also an issue due to the significant barriers to the active involvement of Indigenous people in the development international environmental governance strategies.
This in part has attempted to be overcome by the UN establishment of the Permanent Forum for Indigenous People in 199721 to allow Indigenous groups to participate directly rather then 19 Ayari, above n 6.
20 Nettheim et al, above n 7.
18Permanent Forum Within the United Nations Systems for Indigenous Peoples, CHR Res through national delegates, in international discussions on human rights and environmental governance.
Australia: Aboriginal and Torres Strait Islander People British imperial policy in Australia was based on the false legal concept of terra nullius, which denied Indigenous Australians any right to their traditional lands that they had inhabited for thousands of years prior to colonization.
The Australian Royal National Park was established in 1879 following the American ‘Yellowstone Park’ model of conservation, emphasizing Western Romantic paradigms of ‘wilderness’ constructing a dualism between the human world and natural environment.
These binary opposites were framed in environmental management legislation inherently disadvantaging indigenous participation in environmental governance.
Indigenous Australian’s were not recognised as citizens in the Australian Constitution until 1967 when the so called “Race Power” Section 51(xxvi) 1997/30, ESCOR Supp No 3, UN Doc E/CN4/1997/30 (11 April 1997).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 131 was amended to allow to Government to make special laws for any race for the “peace, order and good government22”.
The Torres Islander Commission recommends that the Constitutional framework must recognise Aboriginal and Torres Strait Islander people as the first people of the Nation and enshrine the goal of overcoming disadvantages faced due to past discrimination23.
Australia began to implement joint management strategies in the Northern Territory (NT) in 1976 with the establishment of the Northern Land Council under the Aboriginal Land Rights (Northern Territory) Act 197624 in order to conserve national resources whilst recognising traditional land rights of Indigenous people.
However the legislation was implemented inconsistently among states and territories.
Australian Indigenous people have been able to claim Native Title over Crown Land and National Park areas since the High Court abolished of the 22 Australian Constitution s 51(xxvi).
23 Zia Akhtar ‘Aboriginal Determination: Native Title Claims and Barriers to Recognition’ (2011) 7(2) Law Environment and Development Journal 132.
24 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
25 Mabo v Queensland (No.
2) 1992 175 CLR 1 ‘Mabo Decision’.
concept of terra nullius after the 1992 Mabo Decision25 resulting in the implementation of the Commonwealth Native Title Act 199326 to recognise and protect Indigenous native title rights.
Initially ratifying Australia’s international obligations into domestic law was complicated by a lack of specific Constitutional reference to the environment27.
International treaties and conventions gain their Constitutional legitimacy from the “External affairs” power Section 51(xxix), which was interpreted broadly after the Tasmanian Dams Case28 in 1983 allowing the Commonwealth to enact environmental legislation in accordance with International environmental obligations.
Despite this relatively recent recognition of Indigenous customary laws, decolonisation in Australia’s context has not seen a return of legal autonomy to Indigenous Australians.
The legitimacy of the Indigenous laws has not been recognised, rather customary laws such as native land title 26 Native Title Act 1993 (Cth).
27 Donald Anton, Jennifer Kohout & Nicola Pain ‘Nationalizing Environmental Protection in Australia: The International Dimensions’ (1993) 23 Environmental Law 763.
28 Commonwealth v Tasmania (1983) 158 CLR 1.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 132 have been incorporated into the dominant western common law system.
This attempt to codify customary laws inherently modifies Indigenous cultural values to subsist within western legal ideologies29 diminishing the cultural legitimacy and significance of the laws.
There are arguments that a system of legal pluralism in Australia would be more appropriate to recognise customs and Indigenous values such as in the context of caring for country that are not able to be effectively legislated on in the western common law system due to a lack of understanding of cultural norms and beliefs.
A shift from Commonwealth governance to legal autonomy has not been readily accepted by the Australian government in the implementation of the UNDRIP and has drawn criticism from the international community.
However since the 1990’s Australia’s legislative framework for ILM has actively sought to increase Indigenous participation in environmental conservation and development.
As The National 29 Leiboff & Thomas, above n 3, 505.
30 International Union for the Conservation of Nature (IUCN), IUCN Protected Categories System (15 January 2014) <http://www.iucn.org/about/work/programmes/ gpap_home/gpap_quality/gpap_pacategories/>.
framework has also been guided by the International Union for the Conservation of Nature (IUCN) Guidelines for Applying Protected Area Management Categories, which are recognised by the UN as global standards for incorporating ILM strategies into government legislative frameworks30.
Management of the area complies with principles of IPA as well as the IUCN as a Category II protected area.
Category II areas are “large natural sites set aside to protect large scale ecological processes” and ecosystems “which also provide a foundation for environmentally and culturally compatible31” opportunities.
The core principles of ILM strategies are to integrate the protection of the environment as well as cultural knowledge, such as by providing opportunities for the education of younger generations of Indigenous people.
The Intergovernmental Agreement on the Environment was entered into by all levels of Australian government in 1992 as a non-binding 31 International Union for the Conservation of Nature (IUCN), IUCN Protected Categories System (15 January 2014) <http://www.iucn.org/about/work/programmes/ gpap_home/gpap_quality/gpap_pacategories/>.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 133 agreement acknowledging that Australia’s international obligations fall under Commonwealth jurisdiction, whilst more specific management plans for natural resource management are a state and territory responsibility.32 Australia’s environmental governance therefore operates under a decentralized legal system.
An effective relationship between State and government authorities and legislation is imperative to ensure a cohesive and consistent approach to ILM strategies.
Australia’s central legislation facilitating ILM, the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC) was developed following these intergovernmental discussions.
The EPBC supports traditional native title rights under the Native Title Act 1993.
The specific state and territory provisions are beyond the scope of the essay.
The EPBC Act aims to implement a nationally integrated approach for states and territory to 32 Ben Boer & Stefan Gruber, Legal Framework for Protected Areas: Australia, International Union for the Conservation of Nature Environmental Policy and Law Paper No 81 (2010).
33 Ibid.
34 Jessica Reider ‘An Evaluation of Two Environmental Acts: The National administer conservation legislation at a more regional level under the act due to Constitutional limitations on Commonwealth environmental power33.
The act consolidated five pieces of federal legislation concerning land management and conservation following the ratification of the UNCBD in 1993.
The EPBC aims to provide a cohesive national framework for biological conservation and managing the interactions between humans and the environment for all states and territories34.
Section 3(1)(d) outlines the EPBC’s objective to “to promote a cooperative approach to the protection and management of the environment (f) to recognise the role of indigenous people in the conservation and ecologically sustainable use of Australia’s biodiversity and (g) to promote the use of indigenous peoples’ knowledge of biodiversity with the involvement of, and in cooperation with, the owners of the knowledge.”35 A strong collaborative approach embodied Environmental policy Act and the Environment Protection and Biodiversity Conservation Act (2012) 14(1) Asia Pacific Journal of Environmental Law 105.
35 Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3(1)(d)(f)-(g).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 134 in the EPBC aims to provide a legal benchmark for the active participation of Indigenous people in all stages of decision making processes which is key for access to environmental justice for Indigenous Australians.
Co or Joint Management The EPBC act specifically implements co or joint management strategies to facilitate the involvement of Indigenous communities within the legal system.
Section (2)(g) promotes a partnership approach to environmental protection and biodiversity conservation through (iii) recognising and promoting indigenous peoples’ role in, and knowledge of, the conservation and ecologically sustainable use of biodiversity.
Under co-management plans traditional land is leased back to the government in order to implement and fund conservation plans based on both Indigenous knowledge and scientific conservation practices.
The Act also established the Indigenous Advisory Committee under section 505A to advise the Federal Minister for the Environment on the operation of the 36 Ibid, s 505A.
37 Arturo Izurieta et al ‘Developing Indicators for Monitoring and Evaluating Joint Management Act taking into account Indigenous knowledge of land management.36 These legal structures aim to incorporate the interests of Indigenous and Non-Indigenous interests with shared access to resources and environmental responsibility.
This can cause conflict with governmental goals of biological conservation as ideas of what effective management involves for a particular area may differ.
Management plans implemented must take such important cultural objectives into account in order to reconcile these ideological differences in a way that is most beneficial for the conservation of biological and habitat diversity37.
Indigenous Protected Areas One of Australia’s most important ILM strategies is the establishment of Indigenous Protected Areas (IPA) first established in South Australia in 1998.
An IPA is defined as “an area of land over which the Indigenous Custodians have entered into a voluntary agreement with the Australian government for the purposes of promoting biodiversity and cultural Effectiveness in Protected Areas in the Northern Territory’ (2011) 16(3) Australia, Ecology and Science 9.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 135 resource conservation.38” These types of management plans are internationally recognised under the UNCBD as Indigenous and Community Conserved Areas (ICCAs) meeting Australia’s international obligations under the declaration and are also in line with ICUN guidelines39.
The basis for these areas is not found in any legislation but is completely based in contract law40 between Indigenous communities and the Australian government.
This allows Indigenous communities to design through collaboration with environmental agencies their own autonomous management plans on freehold title land claimed under the Native Title Act, in accordance with international frameworks.
Today there are 60 IPA’s that account for 36% of Australia’s National Reserve Areas41.
This form of legal autonomy creates unique difficulties as it is completely 38 Australian Government Department of the Environment, Water, Heritage and the Arts, The Indigenous Protected Area Program: Background Information and Advice to Applicants (2009) Australian Government Department of the Environment <http://www.environment.gov.au/indigenous/pu bs/ipa/ipa-advice.pdf>.
39 Helen Ross et al ‘Co-management and Indigenous Protected Areas in Australia: Achievements and ways forward’ (2009) 16 independent from the EPBC Act.
There is currently no government framework for monitoring the conservation success of IPA’s.
A cohesive framework in line with the EPBC goals needs to be implemented in federal legislation, to avoid land use conflicts at a regional level42.
However this creates the paradox that an assessment of success implemented in federal legislation will inherently be from a western postcolonial perspective.
The clear legislative processes to establish co-management strategies and IPA’s under the EPBC framework allows Indigenous people to develop greater autonomy alongside meaningful legal recognition of the importance of traditional knowledge for natural resource conversation.
The success of the legislative framework has resulted in the expansion of Australia’s system of National Reserve Areas.
Although there are significant socio-economic barriers Australasian Journal of Environmental Management 242.
40 Nicholas Goldstein, ‘Indigenous Land Rights in National Parks: The United States, Canada and Australia compared’ (2013) 9(2) Macquarie Journal of International and Comparative Environmental Law 65, 81.
41 Ibid.
42 Benxiang Zeng & Rolf Gerristen, ‘Key Issues in Management of Indigenous Protected Areas: A Perspective from Northern Australia’ (2015) 8(3) Global Studies Journal 19.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 136 to participation in ILM plans in practice, the current legal framework has been a positive step towards the empowerment of Indigenous communities to care for their country according to customary law.
Robinson et al.
(2014) found that whilst Indigenous organisations are highly interested in actively engaging in ILM projects, they often face key barriers to participation that need to be addressed in order to achieve the maximum ecological and cultural benefits possible from contemporary ILM strategies43.
Information needs to be readily available to Indigenous organisations to support their decision making process when assessing how their community can most effectively become involved in the management of the land and how to incorporate their ecological knowledge into contemporary conservation programs.
Power imbalances and socio-economic disadvantages experienced by Indigenous Australians also create the danger of the dominant roles of 43 Cathy Robinson et al ‘Australia’s Indigenous Carbon Economy: A National Snapshot’ (2014) 52(2) Geographical Research 123.
44 Ibid.
45 Luke Arnold, ‘Deforestation in Decentralised Indonesia: What’s Law Got to Do With it?’ 4(2) Law Environment and Development Journal 77. education and land management both being fulfilled by the government or other powerful stakeholders such as corporations, rather then the Indigenous land owners44.
The Australian government must be careful to include Indigenous leadership in all stages of the legislative decision making, legal monitoring, recommendations and law reform.
Indonesia: Adat Communities Indonesia is home to some of the biologically richest forests in the world.
Timber industries are vital to Indonesia’s economic development with around 30 million Indonesian people also rely on these forests for their livelihood.45 Adat broadly refers to customary laws of different Indigenous groups and is one of the three components of legal plurality in Indonesia alongside Civil Law and Sharia Law.
Adat law is “a complex of rights and obligations tying together history, land a law in a specifically Indonesian way,46” there are no uniform Adat laws as every locality has culturally 46 Jamie Davidson & David Henley, The Revival of Traditional in Indonesian Politics.
The Deployment of Adat from Colonialism to Indigenism (Routledge Contemporary Southeast Asia Series, 1st ed, 2007) 377.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 137 specific rules to meet the needs of the community.
Indigenous people in South-East Asia face significant and pressing challenges in relation to environmental justice and human rights abuses.
Despite this Indigenous groups in developing countries such as the Indonesian Adat people are unable to maintain active involvement in international discussions on Indigenous issues47.
The Dutch colonisers in Indonesia favoured forest management based on Modernism and Enlightenment ideas of science and logic as supreme.
Adat communities who traditionally live in forest areas on remote islands in the Indonesian archipelago rely on ecological resources for their local economy and livelihoods.
These communities were believed by the Dutch to be responsible for forest destruction, a stereotype that is still widely held throughout South East Asian countries today.48 It has become clear that Indonesian laws need to empower Indigenous communities to assist the 47Alexandra Xanthaki, ‘Land Rights of Indigenous Peoples in South-East Asia’ (2003) 4(2) Melbourne Journal of International Law 467.
48 Arnold, above n 42.. 49 Marett Leiboff &Mark Thomas, Legal Theories Contexts and Practices (Thomas Reuters Australia, 2nd ed, 2014) 503. government in curbing the alarming deforestation occurring due to the sheer size and biomass of the forest ecosystems.
In contrast to Australia, Indonesia underwent decolonisation to a greater extent, developing a pluralistic legal system after its independence from Dutch rule in 1945.
The post-colonial legal systems that developed are “neither an imprint left by the departed colonial power, nor a resurrected form of the precolonial culture.49” Remote islands in Indonesia maintained governance by customary Adat Law and maintained legal autonomy to the degree that it did not interfere with state economic interests.
This autonomy was enshrined in the 1945 Indonesian Constitution and a system of legal pluralism was created.. Indonesia has a system of weak legal pluralism with customary laws recognised inconsistently and placed under significant state restrictions.50 In 1950 when the newly established federal system was replaced 50 Hilaire Tegnan ‘Legal Pluralism and land administration in West Sumatra: The Implementation of the Regulations of both Local and Ngari Governments on Communal Land Tenure’ (2015) 47(2) Journal of Legal Pluralism and Unofficial Law 312.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 138 with the Unitary State of Indonesia, under the first President Sukarno and the post-colonial government ironically inherited the Dutch scientific based forestry management approach.51 After the fall of President Suharto in 1998 Indonesia has undergone a major period of law reform known as the ‘Reformation Era’.
Environmental law reform focused on calls for decentralisation of environmental management provisions from central to regional governments and a greater recognition of Adat rights to natural resources52.
However this has lead to renewed uncertainty about the role and of Adat law in Indonesia and in practice has not lead to increased involvement of Indigenous people in forest management.
Constitutional Recognition The Indonesian Ideology of the State that provides the basis for the legal framework for recognition of customary law and environmental management is established in the 1945 Republic of 51 Arnold, above n 42.
52 Tegnan, above n 47.
53 Undang-Undang Dasar Republik Indonesia 1945 [Constitution of the Republic of Indonesia 1945] (Indonesia) Premable [author’s trans].
54 Nyoman Nurjaya, ‘Ideology of the State in controlling and managing natural environmental and resources: Its Implication to national law Indonesia Constitution.
The preamble establishes that state can control natural resources to “enhance prosperity and peoples welfare…53” This national development model is the basis of Indonesian environmental policy.
State based resource management is implemented for the central purpose of economic growth development54.
Article 3 of the Constitution further codifies this economic commodity ideology, stating that “the earth and water and natural resources contained therein should be controlled by the State and shall be utilized for greatest prosperity of the people.55” These strong utilitarian values embedded in the Constitutional framework are in fact be the source of the greatest disadvantage to minority people namely the Adat communities of remote Indonesia.
In contrast to the historical context of Australia the Adat people were immediately Constitutional recognition of their customary rights.
Ironically it is this recognition that development’ (Paper Presented at International Conference on Sumatera Ecosystem Restoration in Comparison: Lesson Learned and Future Challenges, Andalas University Padang, West Sumatera, 24th to 25th October 2011).
55 Undang-Undang Dasar Republik Indonesia 1945 [Constitution of the Republic of Indonesia 1945] (Indonesia) art 33(3) [author’s trans].
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 139 provides the greatest hurdle to Indigenous participation in forestry management.
The Constitution sets specific conditions and restrictions for the recognition of Adat laws.
Article 18B paragraph (2) of the Constitution states that “the state recognises and respects the Adat communities and their traditional rights as long as these remain in existence, and are in accordance with the societal development…56”.
Nurjaya (2015) believes that this condition creates “pseudo recognition” of customary law restricting the capacity of Adat communities to actively participate in environmental management of their traditional lands57.
Despite being a signatory to the Rio Declaration and the legally binding UNCBD, international standards of the protection of Indigenous traditional activities in Indonesia are subsistent to the interests of the state.
Economic development is valued in the legal framework above environmental and cultural conservation.
This pseudoconstitutional ideology enables the state to “systematically ignore and neglect the 56 Undang-Undang Dasar Republik Indonesia 1945 [Constitution of the Republic of Indonesia 1945] 
art 18B(2) (Indonesia) [author’s trans].
57 Nurjaya, above n, 1, 6. living customary law as a legal entity in the total system of Indonesia’s national law58.” The words “as long as” in article 18B effectively creates a legal framework for the corporate exploitation the rich natural resources of Indonesia’s tropical forests by transnational corporations at the expense of the environment and the livelihood of Indigenous people.
Customary law controls the sustainable management of the natural resources on which Adat communities depend on for their livelihood.
Adat communities believe that a “right to land does not necessarily include any right to development of that land59” and contain provisions about harvesting of forest materials and hunting of rare fauna to ensure the regeneration of natural resources.60 “Indigenous forest management is not recognised as a viable practice for wildlife and environmental conservation.”61 These ideological differences between Adat law and the Civil Code add to disputes over which law applies between Indigenous people and the state.
Where contrary interests 58 Nurjaya, above n, 1, 9.
59 Supreme Court of Indonesia (ed), Indonesian Legal System ‘Lecture 2 Readings’ (2005) 39.
60 Arnold, above n 42.
61 Xanthaki, above n 44.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 140 exist the state law prevails due the conditions placed on recognition of Adat Law.
State Laws The Indonesian state civil code under the Constitutional framework plays a major role in facilitating environmental degradation.
Adat law recognises two types of customary land rights, communal and individual ownership, similar to Native Title in Australia.
The Basic Agrarian Law 1960 (BAL) extinguished many land rights based on Adat Law in an attempt to unify all types of Indonesian land law.
BAL emphasises a western system of registering land title incompatible with traditional oral systems based on local knowledge62.
The current Forestry Act, Law No.
41 Year 1999 specifically mentions Article 33(3) in its preamble as one source of its Constitutional legitimacy, indicating its underlying economic development ideology.
Despite being implemented in response to principles of the Rio Declaration the law unfortunately represents a step backward 62 Kallie Szczepanski ‘Land Policy and Adat Law in Indonesia’s Forests’ (2002) 11(1) Pacific Rim Law and Policy Journal 231.
63 Ibid, 244. for the recognition of Indigenous land rights and does not facilitate any meaning participation of Indigenous people in forestry management63.
The Act does not contain a provision outlining the process for the recognition of Adat land rights under the Act.
Whilst Article 67(1) does indicate some recognition of principles of ILM, stating “where Adat communities are registered by state they are able to “collect forest produce to fulfil daily needs of relevant customary law community” and are able to (b) “manage forests according to the prevailing indigenous law and not incontravention of the law”.64 This allows Adat laws to be undermined by National laws clearly biased towards transnational corporations in the interest of economic development providing an extremely insecure basis for the recognition of Adat laws.
The Forestry Law seems to be an attempt to reconsolidate the federal government’s power in relation to forest management with the role of regional government and customary law largely ignored65.
Article 61 provides that all 64 Basic Forestry Law No.
41 1999 (Indonesia) Art 67(1)(a)-(b).
65 Arnold, above n 42.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 141 regional management and any decentralisation of provisions should be monitored and regulated by federal legislation (Article 66)66.
This top-down approach to land management is contrary to the national goals of law reform and decentralisation, taking power away from regional and local governance structures including Adat law.
In a system of legal pluralism centralisation this can operate to dominate other less authoritative sub-systems of law.
This has lead to a situation where both the central and state governments are able to use their power to exploit forests and neither are under any obligation to claim any responsibility for sustainable management67.
These laws becomes “an expression of the State’s authority and legitimacy to control resources tenure and management68” for the economic development of Indonesia.
The 2007 UN Committee on Elimination of Racial Discrimination noted that the legal frameworks for the recognition of customary laws do not provide “appropriate safeguards 66 Basic Forestry Law No.
41 1999 (Indonesia) Arts 61, 66.
67 Arnold, above n 41, 91.
68 Nurjaya, above n 50.
69 United Nations Committee on the Elimination of Racial Discrimination, Seventy-first session: guaranteeing respect for the fundamental principle of self-identification in the determination of indigenous peoples.69” The complex and uncertain application process and cost of legal procedures to apply for recognition effectively removes the function of ILM in Indonesia’s forests conservation.
Quasijudicial recognition of Adat councils with decentralised policy power over certain aspects of forest management70 could help Indigenous communities attain greater legal power to assert their customary land title rights over transnational corporations.
There is also a lack of political motivation to implement effective legislative change with assertions that the legal framework does not require any further amendment despite entrenched ideological flaws71.
Although there are significant challenges faced due to a lack of resources for the implementation and enforcement of environmental laws, these issues should be analysed in conjunction with the limitations of the Constitutional framework.
Concluding observations of the Committee on the Elimination of Racial Discrimination – Indonesia, Doc CERD/C/IDN/CO/ 3 (15 August 2007) 15.
70 Arnold, above n 42, 98.
71 Arnold, above n 42, 78.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 142 Indonesia’s system of weak legal pluralism has created pseudo recognition of customary Adat laws and has created significant barriers to any meaningful participation of Indigenous communities in the management of their traditional lands.
The Constitutional and State environment governance frameworks whilst undergoing significant reform are designed to support the economic develop of Indonesia at the cost of conservation of Indonesia’s rich ecological resources and the loss of Adat culture.
The Basic Forestry Laws both passively and actively72 support deforestation by not only ignoring the role of Indigenous communities in land management but by also creating legal barriers that marginalise Indigenous people in the legal system.
However the willingness of Indonesia to participate in International Declarations on the rights of Indigenous peoples and the Rio Declaration is a positive step demonstrating the willingness of the Indonesian government to work towards greater environmental justice for Adat communities.
72 Arnold, above n 42.
73 Haripriya Rangan & Marcus Lane ‘Indigenous Peoples and Forest Management: Comparative Analysis of Institutional Approaches in Australia Australia’s Role in the Asia Pacific Despite cultural, social and political differences between Aboriginal and Torres Strait Islander people and Indonesian Adat communities, both face substantive legal barriers to active participation in access to traditional lands and natural resource management due to the continuing impacts of colonisation and experiences of disposition.73 Australia is one of the most developed and economically stable countries in the Asia Pacific Region and a world leader in Indigenous land and heritage management.
Part of our international environmental obligations are to provide financial and practical assistance to help developing countries, such as Indonesia to successfully develop and implement effective ILM frameworks to ensure Indigenous people attain environmental justice.
Principle 24 of the Stockholm Decoration enshrines this principle stating that “bilateral cooperation to effectively control, prevent, reduce, and eliminate adverse environmental effects is necessary.74” and India’ (2001) 14(1) Society an Natural Resources 145, 148.
74 Declaration of The United Nations Conference on the Human Environment UN Doc A/CONF.48/14/Rev.1 (1973) art 24.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 143 This is emphasised in Principle 7 of the Rio Declaration, which acknowledges the responsibility of developed countries to assist developing countries efforts to protect to environment.75 Treaties and Action plans specific to the needs of the Asian Pacific Region are an important mechanism for the implementation of ILM plans.
22 of the nations that make up the region are developing countries such as Indonesia that may not have the economic resources to fulfill broad international obligations76.
The Australian government will invest $375.7 Million in 2015-16 mainly to improve economic development with the majority of this funding delivered through the Indonesia Australia Comprehensive Economic Partnership Agreement (IA-CEPA)77.
The Aid Investment Plan (2015-16) does not specifically mention the preservation of Adat culture or the support of ILM strategies and traditional conservation practices.
75 Rio Declaration on Environment and Development, UN Doc /CONF.151/5/Rev 1 (12 August 1992) art 46.
76 Anton et al, above n 23.
77 Australian Government Department of the Foreign Affairs and Trade, Development Assistance in Indonesia (2015) Australian Government <http://dfat.gov.au/geo/indonesia/developmentAustralia’s only environmentally focused bilateral agreement with Indonesia, The Indonesian-Australian Forest Carbon Partnership (IAFCP) was entered into in 2008 under the UN Framework Convention on Climate Change.
The agreement was terminated by the Labour government in late 2013 after failing to even attempt to achieve its goal of performance-based payments for the conservation of the forests of Kalimantan78.
The complete lack of initiatives to support the development of ILM strategies in accordance with International Obligations is overall a failure to the environment and the development of Indigenous peoples as a whole.
Australia has not fulfilled it obligations to Indonesia or the AsiaPacific region and more should be done to enhance bilateral and multilateral cooperation for the benefit of Indigenous peoples and environmental conservation in the Asia-specific region and globally.
assistance/pages/development-assistance-inindonesia.aspx>.
78 Robin Davies, The Indonesia-Australia Forest Carbon Partnership: A Murder Mystery, Development Policy Centre Australia < http://devpolicy.org/the-indonesia-australiaforest-carbon-partnership-a-murder-mystery20150610/>.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 144 III.
CONCLUSION ILM principles are increasingly being incorporated into contemporary conservation programs as the broad environmental and cultural benefits of traditional knowledge passed down for thousands of generations, are being formally recognised by the international community.
Australia and Indonesia have both moved into a post-colonial legal era and have developed legal frameworks surrounding ILM in response to international principles.
However the vastly different systems of legal pluralism in Indonesia and legal centralism in Australia create diverse challenges for the recognition and implementation of traditional conservation strategies based on customary principles and laws.
Australia must implement Constitutional recognition of the right to selfdetermination of Indigenous people and ensure the active participation of Indigenous communities in legal reform and development, to overcome past discrimination based on western legal principles.
The Indonesian Constitution also needs to undergo an ideological shift from promoting purely economic growth to provide meaningful recognition of Adat law and to meet minimum standards of sustainable development and the rights of Indigenous people.
Australia has not met its obligations to the international community and particularly to the Asian-Pacific Region to support the development of effective and inclusive ILM strategies and legal frameworks.
Australia has failed to provide any meaningful support through bilateral agreements to Indonesia to assist in the legal reform of environmental laws and policy surrounding the recognition of Customary Law.
Although there have been positive steps towards effective ILM regionally and globally there is still a significant amount of progress to be made in order to achieve environmental justice for the worlds Indigenous people.
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Microsoft Word REVISED BLJ 2016 CONTENT 5 juni.docx Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 79 THE ROLE OF THE VILLAGE IN FOREST MANAGEMENT: HUMAN RIGHTS PERSPECTIVES Mohamad Rif'an, Hary Setiawan, Adam Wisnuaji Faculty of Law Brawijaya University Email: assasinalfhabet47@gmail.com Abstract 1945 opening noble nation Indonesia is an agreement to live together (modus vivendi) in bonding the plural nation.
The Modus Vivendi, has given birth to the state's objective, which is the nation's identity and guidelines in their stride.
Thus, the constitution has mandated the State to be responsible for the welfare of the people.
Indonesia has the second largest tropical forest in the world with high economic value that can be managed by the state and society.
This allows for the utilization of various types of plants and economic aspects of the utilization of forest products.
In preparation result is a pity forests is not optimal either with intensive and with many requests deforestation or forest land conversion.
Deforestation well planned and unplanned forest.
On the other hand, Indonesia which acknowledges the existence of the village government and the empowerment of the rural community empowerment which is a process for making the community to improve the quality of life for the better is weak then the need for the existence of the role of government in the village of Village forest management as one of the rights of the villagers.
The type of research is normative juridical.
Hence this paper initiated a grand design Village forest management to complete the processing and utilization of forest products that are integrated with the role of the village government as a system intended to pengoptimalam supply chain production as one of the important indicators of development and resilience of economies in each region using variable results income forests as principal.
Keywords: Industry, Forest, Village, Village Forest Management I.
INTRODUCTION Preamble of Constitrution 1945 is the sublime nation of Indonesia's agreement to live together (modus vivendi) in the bonds of one nation's compound1.
Modus Vivendi, has given 1 Mahfud MD, Debate Constitutional Law after the amendment of the Constitution, LP3ES, Jakarta, 2007, p. 835).
3-4 birth to the country's ideals, which is the identity of the nation and the guidelines in their stride.2 The ideals of the country 2 The purpose of the State of the Republic of Indonesia that is contained in the paragraph IV Opening THE CONSTITUTION NRI Constitution reads " ...to form a State Government of the Republic of Indonesia to protect all the people of Indonesia and all spills blood of Indonesia and to promote the public welfare, educate the life of the nation and Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 80 contained in the preambule of Constitution 1945, shows characteristics of welfare State, which is a characteristic of the modern State.
Thus, the Constitution has mandated the state to take responsibility for the welfare of the people.
This is reaffirmed in article 33 of the Constitution of 1945 that the land, water, and natural riches contained in it are controlled by the State and used the most for the welfare of the people.
This provision then became the foundation of the Constitutional and simultaneously the direction for setting various things related to monopoly arrangements, implementation, usage, supply and maintenance of natural resources as well as setting its legal relations based on a spirit of social,3 so the logical consequence that occurs is the placement of the mastery of the resources must be dedicated to the contribute to the pursuit of a world order based on freedom, lasting peace and social justice..." 3 In the Article 33 Constitution listed basis economic democracy, production done by all, for all under the direction of or Trainees monitoring members of the community.
The prosperity of society is the preferred, not the prosperity of a man.
Edi Swasono, Article 33 Constitution must be maintained, Do not changed, be added verse, in a paper, p.30 15. can be accessed at http://webcache.googleusercontent.com/searc h?q=cache:WkHKI7iYaYJ:www.bappenas.go.id/index.php /download_file/view/10688+&cd=7&hl=en&ct =clnk&gl=id, accessed on 7 February 2016 at unfortunately public interest with the principle of fair and just, trustworthy (accountable), and transparent (good governance).
4 One of the natural resources of the most influential in the Indonesian economy and frequently noted the position of its law is forest.5 Indonesia has the second largest tropical forest in the world with high economic value that can be managed by the State and society.
The role of the forestry sector in economic growth began in 1967 through the concession of rights of forest Entrepreneurs (HPH).
Between the years of 1967 to 1980, 519 companies have been given HPH that includes 53 million hectares.
Up to June 4 SF.
Marbun, the existence of the general Asas-Asas Proper Governance in manifest Good Governance and clean in Indonesia, Dissertation, not published, postgraduate program Faculty of Law University of Padjadjaran Bandung, 2001. p. 835).
50 5 The author agree on rahmina opinion that the regulatory framework of legislation in Indonesia for the forestry sector started with UndangUndang 41 1999 jo Law Number 19 Year 2004 about the Announcement of Government Regulations for replacement of Law Number 1 Year 2004 about the amendment of Act No.
41 The year 1999 about Forestry Act, also related to Law No.
5 The year 1990 about Natural Resources Conservation Biodiversity and Their Ecosystems and implementing regulations under the details of the management of the forest area in accordance with the function and status.
Rahmina, elect the scheme of community-based forest management in the mitigation of Climate Change, Jakarta, Deutsche Gesellschaft für internationale Zusammenarbeit (GIZ) GmbH Forests and Climate Change Program (FORCLIME), 2012 page 3 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 81 1998 there were 651 HPH with the allocation of the forest area of 69.4 million hectares.
The timber industry and forest products generates US $ 9 billion in 1994, US $ 5.5 billion of which are from exports.
In the last ten years, foreign exchange contribution of timber industry achieved an average of 20% of total foreign exchange earnings of Indonesia.
Within the framework of legislation, forest management by the public through Regulation of Government (PP) No.
6 of 2007 Jo PP No.
3 in 2008, the scheme concerning forest that accommodated by the state is the Forest of village, community forests , and partnerships, in addition to the three schemes, there are also other schemes that are set in the regulation of the Minister of Forestry such as the Forest of the people, Joint management of forest, and Forest Plantation of Communities.
This explains that the management of the forest products with the goal of economic must see the kind of forest that will be processed to minimize forest exploitation without considering the impact that occurred on the environment.6 6 Humas Ment Kuansing, Forest Potential, 2016, accessed at http://www.kuansing.go.id/investasi/sektorkehutanan/, accessed on 8 February 2016 at 23.02 Arogonomic conditions support Indonesia as the owner of land resources 7 for the development of a wide variety of the forest product’s commodity.
With the land area of Indonesia reaching 188.20 million hectares, or 24% of the total area that consists of the entire concession in Indonesia8, allows for the resurgence of various types of plants and the economic aspects of the utilization of forest products including industrial commodities in large or small industries (Small Medium Enterprises/ UMKM).
The condition is inversely proportional with the existence of the forest industry as material procurement of supply chain production, to clarify the standard definition of ‘the supply chain’, the author quoting on the Hugos statement (2003, 2-3) which provides supply chain definition that "A supply chain consists of all stages involved, directly or 7 Statistical data of the use of agricultural land indonesia 2003 shows that the potential of agricultural land resources in Indonesia is the area of 70.60 million ha.
Area of land used for agriculture business reach 53,71 million ha, while that used for agriculture business not reach 16,89 million ha, Anny, Irsal, Resource potential land and Commodity Development Optimization Bioenergy producer in Indonesia, Bogor; R&D Journal of Agriculture, 2009 page 9 8 The terms of the exterior design of the national territory, 67 million ha (35%) should be used as a protected area and the rest of the land to be used for the area of aquaculture, ibid, p.30 9 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 82 indirectly, In fulfilling a customer request.
The supply chain not only includes the manufacturer and suppliers, but also transporters, warehouses, retailers, and event themselves."
(Chopra and Meindl, in the Hugos, 2003, 2).
The theoretical foundation of the Hugos is a reflection that the supply chain is the provision of industrial raw materials that can be processed, empowered and coordinated to the consumer.
Viewed from some cases that occurred, it is a dilemma when an industry has made forests as the supply chains of production without considering the stability of the environment.
The superiority of Agronomic conditions, especially in the management of forest products still in the status not optimal when reflect on the processing of forest products which is evidenced by the end of 2009, almost half the forest areas in Indonesia (46.5% or 55.93 million hectares) were not managed with intensive 9 and with demand deforestation or land of forest conversion.
Both the Deforestation that is planned10 or unplanned deforestation.
9 Opcit 10 Is the conversion that occurred in the production forest area which can be converted (HPK) released into the area of aquaculture non forestry (KBNK area or APL).
The planned .
11 Picture.
1 Deforestation 1982-2005 Refers to the existence of the village development or rural development which is a development scheme to cultivate the development of the community as well as the environment of its life.
12 The theory gives hope through manifestation of development and empowerment of the village community.
Theoretical review on the village community empowerment is a process to make the society or group of weak more empowered with the aim to improve the quality of life of weak community to be better.
The existence of this community empowerment will make the society to conversion can also occur in the area of production forest to open mining.
Zulkiflie, Arief, forest issues Indonesia, 2013, accessed at http://bangazul.com/permasalahan-hutan-diindonesia/, accessed on 7 February 2016 at 5.12 11 unplanned deforestation is due to the conversion of forest that occurs in all areas of the forest as a result of various activities which are not planned, especially illegal activities, ibid.
12 Riwu, Joko, Basic Social Science, Yoyakarta: National Business,1989, p. 835).
212 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 83 has the ability and the power to fulfill basic needs, reach productive resources, allowing them to increase revenue and participate in the development process of the village, so they have freedom, not only freedom of speech, but rather free from poverty and ignorance.
In this case, empowerment is inseparable from power (to rule/authority) because there is authority in power, so the main idea of empowerment is in contact with the concept of authority or the village’s government.
13 Subject of the environmental review and community development is not separated from the concept of village's management of Assets that has been regulated in Act No.
6 Of the village by 2014.
The assets of the village can be the land of the village customary land, cash, market village, animal markets, overnight boat, building villages, fish auction, the auction results of agriculture, forests of the Village, , springs of water belongs to the village, public baths, and other assets belongs to the village.14 These problems become a basis for the author to established a 13 Edi Suharto, build community to empower the community, Bandung: Refika Aditama, 2010, p. 835).
58-59 14 Law of the Republic of Indonesia Number 6 Year 2014 regarding the village Article 76 Paragraph (1) Greendesign in the processing of forest products intensively, but also to observe the integrity of the stakeholders (Government and society) therein is one of the alternative solutions for the existing issues on the forest processing today.
Therefore, the study of the existence of the forest processing in the village which refers to the integrity of the stakeholders is necessary.
This type of research is Juridical-normative, i.e.
researchers/authors elucidate the legal materials either primary, secondary, or tertiary and 2 (two) methods approach i.e.
statutory approach (statuteapproach), by examining the formation of legislation 15 relating to forest processing and conceptual Approach (conseptual approach), by studying and understanding the required dimensions in the concept of the Village forest management.
16 The authors hopes that this research is works to improve and serves the program tree bank and following up the program as the repressive actions of the Government on issues concerning land crisis and the lack of intensive processing of forest products in 2009 to successfully enable 15 Peter Mahmud Marzuki, Legal Research, Kencana, Jakarta, 2007, p. 835).
96.
16 Johnny Ibrahim, the theory and research methodology of the normative Law, Malang, Bayumedia, 2007, p. 835).
391.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 84 and include the roles of villagers and upholding the rights and welfare of the community development.17 This research also aims to find an overview of a system aimed at optimizing the supply chain production in industrial sectors, one of which is the Small Medium Enterprises/UMKM as one of the important indicators of development and the resilience of the economy of the state in every province that uses variable forest products as its main income.
Thus we expect that the condition of utilization of the resulting forest can match the development and includes the society.
The formulation of the problem: 1.
How is the current problems of the Village forest management?
2.
How is the concept of the Tree Bank Processing as a supply chain optimization system of production Forest Village?
II.
METHODOLOGY This type of research is Juridical-normative, i.e.
researchers 17 Deputy Assistant of urban Community Empowerment, Program Bank Pohon Hijaukan Sepuluh Hektar Lahan Kritis Di Kabupaten Bandung, 2006, can be accessed at http://www.menlh.go.id/program-bankpohon-hijaukan-sepuluh-hektar-lahan-kritis-dikabupaten-bandung/, accessed on 9 February 2016 at 9.08 elucidate the legal materials either primary, secondary, or tertiary and 2 (two) methods approach i.e.
statutory approach (statute-approach), by examining the formation of legislation18 relating to forest processing and conceptual Approach (conseptual approach), by studying and understanding the required dimensions in the concept of the Village forest management.
19 The authors hopes that this research is works to improve and serves the program tree bank and following up the program as the repressive actions of the Government on issues concerning land crisis and the lack of intensive processing of forest products in 2009 to successfully enable and include the roles of villagers as well as upholding the rights and welfare of the community development of the village.
III.
RESULT AND DISCUSSION CURRENT PROBLEMS OF FOREST PRODUCT PROCESSING Attempts to build a community based forest management has been pursued since the 19th century during 18 Peter Mahmud Marzuki, Legal Research, Kencana, Jakarta, 2007, p. 835).
96.
19 Johnny Ibrahim, the theory and research methodology of the normative Law, Malang, Bayumedia, 2007, p. 835).
391.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 85 the colonial era .
Teak forests intercropping policies in Java were excellent examples.
This policy was created to address the failure of colonial forestry development policies of forests conservation and resolution of conflict with forest communities .
Furthermore, with a variety of models , efforts to build collaborative forest were attempted .
The 8th World Forestry Congress themed Forest for People in Jakarta is one of the driving momentum of this policy during the New Order era.
Social Forestry Program and a number of cooperation projects abroad for community-based forest management trials were conducted .
The famous one is a project carried out in Sanggau , West Kalimantan in cooperation between the Indonesian and the Germany Governments20 The legislation framework of Indonesia 's forestry sector begins with Law No.
5 Year 1967 On the Basic Provisions of Forestry, which still valid until 1999 , later repealed and replaced 20 Safitri, Myrna A. Community-based forest management, Forestry conflict and justice over tenure: Opportunities and limitations, in a paper page 6 online, can be accessed at http://acch.kpk.go.id/documents/10180/15308 /sesi3-myrna-safitri-paper-semiloka-kawasanhutan-epistema.PDF/0de3a27e-f9f5-40b0-a2a1a69cd4dbec25, accessed on 7 February 2016 at 6.05, diakses pada 7 Februari 2016 pukul 6.05 by Law No.
41 Year 1999 as amended by Law No.
19 Year 2004 concerning the Government Regulation in Lieu of Law No.
1 Year 2004 on the Amendment to Law No.
41 Year 1999 on Forestry to become Law , are also associated with Act No.
5 Year 1990 On Natural Resources and Ecosystem Conservation and implementing regulations under details of forest management in accordance with the function and status.
While forest management and community were previously arranged in a series of regulation of the Minister of Forestry , until it is determined in Government Regulation No.
6/2007 Jo PP 3 Year 2008 on Forest Management, Planning and Utilisation.21 A fair forest management distribution can be observed from National Forestry Plan ( RKN ) documents 2011-2030 of the Ministry of Forestry .
With effective forest area of 112.34 million hectares 43.62 million hectares ( 39 percent ) is allocated to license management for corporations , while the lands designated for the 21 Rahmina, elect the scheme of community-based forest management in the mitigation of Climate Change, Jakarta; Deutsche Gesellschaft für internationale Zusammenarbeit (Giz) Gmbh Forests and Climate Change Program (Forclime), 2012, page 3 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 86 people only amounted to 5.57 million hectares ( 5 percent ) of the effective forest area .
Meanwhile, of 88 361 total number of villages in Indonesia , about 33 957 ( 36.17 percent ) are in , on, or around the outskirt of the forest areas.22 Terrible management and utilization of forests in Indonesia for all this years has been causing damage to Indonesia's forests which are difficult to rehabiliate in a short time .
In the 1970 Indonesian forest area reached 143 million hectares , assuming 70 % vegetated woods, this means that there were 100 million hectares of forest .
However, now this status had deteriorated dramatically at an alarming pace, with only 21.4 million hectares of vegetated forest area currently left .
The 1997 study of the conservation of forests that occur at; protected forest ( less than 25 million hectares ) , forest conservation ( 15 million hectares), production forest ( 25 million hectares ) and limited production forest ( 25 million hectares).23 22 Perhutani, Reports of National Forum for the forest and the community of community-based Forest Management the status of the present and the future of the Jakarta 15 16 April 2014, Bangkok ; RECOFTC, 2014, p.30 26 23 Fox, J., M. Wasson and G. Applehate.
2000.
Forest Use Policies and Strategies in Indonesia: A Need for Change.
In the case of natural forests , the author takes a sample of Indonesian mangrove forest area which continues to decline with each passing years .
According to the FAO (1982 ), Indonesia mangrove forest area in 1982 were approximately 4.25 million hectares .
In 1987 mangrove forest area has been reduced to 3.24 million ha and at 1995 survey results , the area decreased again to 2.06 million ha.
According to Data from the Indonesia Ministry of Forestry mentions there is only about 1.71 million ha N of mangrove forest left24.
A second sample occurred in 2002 , Kampar Peninsula forest were mostly untouched from 700,000 hectares in 2007, which consist of about 300,000 hectares of wetlands ( 37 % of the area of origin ) have been encroached , drained and/or burned25 to fulfill the needs of tropical timber from pulp mills industry and provide land for Jakarta.
The paper presented to the World Bank May 2000 24 Arif, A. Mangrove Forest functions and benefits.
Yogyakarta; Kanisius.
2003 p.30 13 25 Eyes on the forest report, March 2008 Eyes on the Forest to Asia Pulp & Paper: Cease all destruction of one of the world's largest tropical peatland forests Kampar Peninsula in Riau Province, Sumatra Indonesia, can be accessed at assets.panda.org/.../eof_news_on_app_in_ka mpar_final_english_25mar08_1., p.30 2.
Access ed on January 22 2016 at 04.32 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 87 plantations26 acacia27 for palm oil.
Only 10 % of the remaining intact peatlands are officially protected , while the 90 % of other peatland area is strongly threatened by HTI (Hutan Tanaman Industri/Industrial vegetation forest) development of pulp and paper company.28 Not only in the condition of the forest , but unconstitutional condition were also occuring in forest products converters issue at 2007 by the company APP, which was known to have repeatedly bought illegal timber originating from peatlands in Riau province .
Despite the peat depth in this region exceeds 4 meters , which means it illegal to be encroached , developed or dried under Indonesian law.29 These 26 The plantation is not natural forest.
Natural forests have various kinds of trees and into the place of his life all kinds of plants and animals.
On the contrary, plantation often have only one species of trees with the same age and planted near.
They do not support the life of animals and have the level of clean water is low.
These trees also store carbon in the amount lower than the natural forest.
The definition of UNFCCC will be "forests" not differentiate natural forests with plantations but this is absolute.
Novice,John, Indonesian Tropical Forests and climate crisis, Jakarta; Okini, 2010, page 5 27 Ibid, p.30 5 28 Miettinen , Otto, Kampar Peninsula as a peat swamp forest conservation priority Briefing for NGO, in a paper, accessed at http://www.maanystavat.fi/april/resourcesforka mpar2007/Miettinen2007longKamparPeninsula.
Pdf, Accessed on 10 February 2016 at 7.46 29 Ministry of Agriculture Indonesia (2009) Ministerial Decree (Regulation of the conditions were also continued in a subsidiary of APP , Indah Kiat which runs pulp mills industry in Indonesia , with a capacity of 2 million tonnes of pulp per year .
In 2000 it was discovered that 75 % of timber resources of the company come from deforestation.
30 In 2005 , both of the pulp mills of APP ( Indah Kiat and Lontar Papyrus ) fulfilled 60 % of the their wood fiber demand through natural forest timber and not from their HTI.31 VILLAGE FORRESTRY MANAGEMENT THROUGH TREE BANK A. Existance of Tree Bank program Minister of Agriculture No.
): 14/Permentan/OT.110/2/2009; Presidential Decree No 32/ of 25 July 1990 30 Friends of the earth, Ed Matthew (2001), in a paper, can be accessed at www.foe.co.uk/resource/reports/paper_tiger_ hidden_dragons.pdf, accessed on February 11 2016 at 10.01 31 Clashed Physically, 500 police personnel forced Pricks Suluk Bongkal citizens, 19 December 2008, http://www.kompas.com/read/xml/2008/12/19/0 0365789/bentrok.fisik.500.personil.polisi.usir.
force.host.suluk.bongkal.This article is unavailable in English.
The information in this briefing is an on this man of the article.
For further reference refer to Jakarta Post Riau Police guilty of human rights abuses: Komnas HAM, 30 December 2008.
Can be accessed at http://www.thejakartapost.com/news/2008/12 /30/riau-policeguilty-rights-abuses-komnasham.html, accessed on February 11 2016 at 14.01 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 88 It has been explained in the introduction that the tree bank program were conducted as a repressive action of the government in matters concerning land crisis and the lack of intensive processing of forest products in 2009 which successfully enabled and include the role of rural communities by utilizing forest village.32 B.
Procurement of Village Forest as the Main Asset of Tree Bank Village Forest is a state forest which managed by the village , used for wellness of the village , carried out in protected forest areas and productive forest,is not burdened with management rights or exploitation permit, forest management rights village consists of Right Management , IUPHHK , IUPK , IUPJL , IUPHHBK , IPHHK , IPHHBK which was not limited by term because it is determined by the village itself through village forest management institutions that established and defined by village’s regulations , except IUPHHK which 32 Deputy Assistant of urban Community Empowerment, Program Bank Pohon Hijaukan Sepuluh Hektar Lahan Kritis Di Kabupaten Bandung, 2006, can be accessed at http://www.menlh.go.id/program-bankpohon-hijaukan-sepuluh-hektar-lahan-kritis-dikabupaten-bandung/, accessed on 9 February 2016 at 9.08 follow the provisions of article 49 s / d 59 PP 6 Year 2007 Jo PP .
3 of 2008 and completed in the second amendment of Regulation p.49 / 2008 to Ministrial Decree No.
P.14 / 2010.33 Said sequence is then refined by P.53 / 2011 of Forest Village that replace the entire Article 6 becomes: UPT Directorate of Watershed Management and Social Forestry authority to coordinating with UPT Echelon I Ministry of Forestry and Local Government to determine the prospective areas and facilitate the establish village forest village institutions, to make HPHD petition to the governor with a copy to the Regent / Mayor.
But in any other areas outside the area nominated by UPT DAS, local communities can apply for the establishment of village forest production area to the Regent / Mayor.
Request filed by the village chief to the Regent / Mayor to include petitioned location sketches; The proposal letter from the Village Head / Lurah; The names of candidates for village organizations or institutional structures if already formed village which is 33 The presentation of the Ministry of Forestry in learning workshop Implementation of village forest in East Kalimantan, March 2011 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 89 already known by the sub-district and village chief / Lurah; according to said request then regent / mayor will complete it with a digital map of the prospective area of Productive forest , description of the area (physical, social, and economic potential of the region, the proposed letter from the Village Head / Lurah and names of the candidates or the institutional structure of the village if it is already exists.
All of previously mentioned documents becomes the proposal for the establishment of production forest area for the Minister of forrestry.
Also during the nomination process, the Governor or Regent / Mayor facilitate the establishment and improvement of that village’s institutions.34 Essentially the filling procedure for village’s Trees Bank is similiar to filling IUPHHK license in Forest Village , although there are some modifications such as follows : Picture 2: The Village Forest Procurement Flow 34 The explanation about Permenhut No.
P. 49/Menhut-II/2008 about Village Forest 1.
The proposal is submitted by the Village to the Regent / Mayor which will forwarded the letter to the Governor; 2.
Proposed followed by Regents / Mayors to the Minister of environment and forestry, 3.
Establishment of Trees Bank Village area is done by the Minister of environment and Forestry 4.
Provision of manpower, Trees Bank Management Unit and Environmental Conditions Management Unit 5.
Establishment of management type in the Trees Bank is done after the calculation of the forest’s potential and condition from the Ministry of Environment and Forestry by the Governor 6.
Utilisation of Timber and forest products can be done at Forest Village that serves as Production Forest through the Trees Bank business license granted by the Ministry of Environment and Forestry ,which can be delegated to the Governor for the Natural Forest , and regent for Planted Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 90 Forests Picture.
3 The procurement flow types of potential Tree Bank Village Forest Management is a new system that utilizes traditional practices of land utillisation which elements consist of : a.
Land use or land use by humans b.
Application of technology c. Components of annual crops and perennial crops.
d. Can be done either simultaneously or in turns in a given period e. Interaction between ecological, social, and economical aspects.35 i.
Production Supply Chain On Small Industries Through Trees Bank 35 Kurniatun Hairiah, Dkk, Introduction Argoforestry Mingled, Bogor; World Agroforestry Center ICRAF), 2003, p.30 33 ii.
The use of Village Forest Management above is an accesoir for the mapping of Production Supply Chain which supports the Forest Products Industry capabilities to compete on selected markets.
Each Trees Bank that cultivated by the village will have the characteristics and diverse supply of trees considering the condition of Indonesia's various Agronomy .Supported by accumulated funds of tree cultivation and forest growing value calculation provides the potential to Trees Bank to adjust the demand and long term availability of forest product The calculation Primary calculation based on the Tree Bank Enabling Registration Forest Potential Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 91 IV.
CONCLUSION The development of forest products is one of the issues that need special attention.
The sector of forestry has not been managed intensively.
In addition, problems of supervision and customs of the society and legal entities involved in the processing of forest products that are less put forward environmental conditions had became one of the causes of suboptimal product development forest products.
A Bank of trees is the most suitable body to develop the potential of the village.
A Bank of trees will not develop if human resources, manage it less qualified, necessitating the role stakeholders and support the village rich in ideas so it is easier to do invention and innovation in the forestry sector.
To realize the optimization of the supply chain of production in the industrial sector.
product development in forest products through re-existence of coral Trees in the village Bank, it takes harmonious collaboration between villagers and the Government as a result of forest products development in the village.
In realizing the harmonious collaboration, because it is the concept of Village forest management as the system optimisation of existing the Bank of trees is very necessary.
Thus, it is recommended that: 1.
The need for study of Bank regulation on the back of the tree and hold updates rules on a Bank of trees.
2.
The refinement of the system on a concept of Village forest management is indispensable for tackling the potential void of legal and technical problems in the operations of a Bank of trees.
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Forest Use Policies and Strategies in Indonesia: A Need for Change.
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5/ 1990 About Natural Resources Conservation Biodiversity and Their Ecosystems.
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41 Tahun 1999 About Forestry.
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DOI: http:// doi.org/10.21776/ub.blj.2021.008.01.09 | 147 The Notion of Divine Principle (Asas Ilahiah) In Indonesian Contract Law Djumikasih*, Thohir Luth, Abdul Rachmad Budiono, Imam Koeswahyono Faculty of Law, University of Brawijaya, Jalan Veteran, Malang, Indonesia, 65145 Jalan Veteran, Malang, East Java, Indonesia.
65141.
*E-mail: kimujd@ub.ac.id Submitted : 2020-11-23 | Accepted : 2021-04-26 Abstract: This study is legal research aiming to find out the essence of Divine Principles in Indonesian Contract Law from the review of the Natural Law theory, the Sunt-Servanda theory, the Awareness and Legal Obedience Grundnorm theory, and Truth theory.
This research reveals that the Divine Principle's essence is the most fundamental principle or guideline derived from God but exists in humans, aiming to find the truth and regulate the parties in making agreements.
The application of the Divine Principle aims to find the truth and regulate the parties in the agreement's field.
Indonesian citizens could realize and practice the Precepts of Godhead in their agreement activities.
In establishing the agreement, the parties are applying the teachings of their respective religions.
This study reveals that the Divine principle needs to be incorporated into one of the upcoming National Agreement Laws principles, especially in the contract born because of the agreement.
This study maintains that the divine principle can be applied comprehensively for Indonesian citizens who are parties to the agreement, not only limited to the Indonesian Muslim citizens.
Keywords: Divine Principle or Ilahiah principle, Contract Law I.
INTRODUCTION Indonesia does not yet have a National Agreement Law product from the Indonesian people themselves, so pluralism still occurs in treaty law in force in Indonesia.
Indonesia still applies treaty law in Dutch civil law, Indonesia customary law, and Islamic treaty law.
This pluralistic system causes many problems for law enforcement because it can 1 Prof. Dr. Sudikno Mertokusumo, S.H.. (1999).
Mengenal Hukum Suatu Pengantar.
(Yogyakarta, Liberty Yogyakarta, Ed.4; Cet.2, 1999) lead to legal uncertainty for Indonesia citizen and population.
Legal certainty is legal protection against arbitrary actions.1 The formation of national treaty law guarantees legal certainty in treaty law and becomes national pride because Indonesia can make its laws.
To establish national treaty law, it is necessary to study the legal principles in the three existing treaty legal http://dx.doi.org/10.21776/ub.blj.2021.008.01.09 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 148 | Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… systems in Indonesia as the basis for establishing national treaty law first.
Indonesia, as a nation, has an identity that must be realized in its legal system.
The wealth of life values and the philosophical foundation as an independent nation must be explored to become the foundation for the Formation of the National Engagement Law.
The factual habits that have taken root and the Indonesian people's religious principles must be considered in shaping national treaty law without neglecting attention to international developments.2 The legal system of treaties in force in Indonesia has the same legal principles even though the mention is different, such as the principle of consensual and the principle of habit.
This principle is in the Civil Code, Customary Law, and Islamic Law.
There are also legal principles that are only found in one legal system and are not found in the other two legal systems, namely the divine principle, which is only found in the legal system of Islamic agreements.
The Divine Principle or the Principle of Monotheism is the principle of Islamic treaty law, which states that every human behavior and deed is always seen and monitored by Allah SWT.
Although not yet fully, the Sharia principle has been concretely used in Islamic institutions like in the banking environment.
This fact can be used as an embryo to adopt sharia principles in the development of Indonesian National Law.
All parties could apply state law without questioning its source; therefore, the facts can ward off all types of prejudice and instead foster national commitment to always compromise for the formation of a national system law with a national identity.
2 Isnaeni, Moch..Hukum Perkawinan Indonesia / Moch.
Isnaeni.
2016 3 Prof. Jawahir Thontowi, Pancasila dalam Prespektif Hukum Pandangan Terhadap In Indonesia, Pancasila is the source of all legal sources.
It means that all sources of law or regulation (i.e., TAP MPR, Law, PERPU, Government Regulations, Presidential Decrees, Local Government Regulations (Province level or City/district level) and all implementing regulations) must stand on Pancasila as its legal basis.
All legal products must comply with Pancasila and must not deviate from them.
As a source of positive law in Indonesia, Pancasila contains the intention that although Pancasila's values are proven to be universally valid, formally, Pancasila only applies as a source of all sources of law that exist in the Indonesian legal system.
Pancasila as the source of all positive sources of law in Indonesia means that the position of Pancasila, in this case, makes the guidelines and direction for every Indonesian nation in developing and improving the legal conditions in Indonesia.3 Therefore, it can be concluded that the founder of Indonesia hopes that all life as a nation and state, including the life of the law, more specifically the law of agreement, prioritizes the principle of divinity.
Therefore, it is very important to adopt the Divine principles in the Islamic Agreement Law, to be realized and confirmed as one of the principles in the upcoming Indonesian National Agreement Law.
Therefore, to realize the divine principle in the coming Indonesian national treaty law, it is necessary to examine in advance what is the nature or essence or the actual basis of the Divine principle.
From the background of the problems mentioned above, it is necessary to research the Divine principle's nature in contract law?
Ancaman “The Lost Generation”, (UII Press, Jogjakarta, 2016) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… | 149 II.
LEGAL MATERIALS AND METHODS The type of research applied in this article is normative legal research.
This study examines and examines one of the principles of contract law originating from Islamic covenant law, namely the divine principle, to discover its essence, urgency, and realization to govern future national contract laws.
The approach method used in this research is the statute approach, especially the following seven laws and several articles from the Third Book of the Civil Code on Engagement.
1.
Law of the Republic of Indonesia No.
30 of 2004 concerning the Position of Notary and Law of the Republic of Indonesia No.
2 of 2014 concerning Amendments to Law of the Republic of Indonesia No.
30 of 2004 concerning the Position of Notary 2.
Law of the Republic of Indonesia No.
21 of 2008 concerning Sharia Banking, 3.
Law of the Republic of Indonesia No.
4 of 1996 concerning Mortgage Rights to Land and Objects Related to Land, 4.
Law of the Republic of Indonesia No.
42 of 1999 concerning Fiducia Guarantee and 5.
Law of the Republic of Indonesia No.
13 of 2003 concerning Manpower.
6.
Law of the Republic of Indonesia Number 23 of 2011 concerning Management of Zakat 7.
Law of the Republic of Indonesia Number 41 of 2004 concerning Waqf.
Legal materials in this study consist of primary legal materials, secondary legal materials, and tertiary legal materials.
Primary legal materials consist of various 4 David P. Weber, ‘Restricting the Freedom of Contract: A Fundamental Prohibition’99999999, provisions regarding agreements both in the third book of the Civil Code concerning Engagement and several national product laws relating to agreements.
Secondary legal materials consist of legal materials that provide explanations for primary legal materials, in the form of doctrines and scientific works on the principles of contract law, especially on divine principles.
Tertiary legal materials consist of legal materials that provide explanations for primary and secondary legal materials, such as an English dictionary, a Dutch dictionary, an Arabic dictionary, a legal dictionary, and an Indonesian dictionary.
Moreover, the analysis technique used in this research is the grammatical interpretation technique using the induction method, in this case, the divine principle, which is regulated explicitly in Islamic contract law, then it is drawn into something general in nature, which is one of the applicable principles in national contract law.
III.
RESULT AND DISCUSSION In the Indonesian Civil Code (Kitab undang-undang Hukum Perdata) Book III, there are several principles of agreement law, including the principle of freedom of contract, consensual principle, legal certainty (pacta sunt servanda), and the principle of good faith, and the principle of personality (personality).
The following is an explanation of the principles referred to: a.
Freedom of Contract The freedom of contract is general rights of an individual to create a contract.4 However, there are some limitation such as age, purpose and object of the contract, and etc.
(2013) 16(1) Yale Human Rights and Development Law Journal, p.102-103 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 150 | Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… The principle of freedom of contract can be analyzed from the provisions of Article 1338 paragraph (1) of the Civil Code, which reads: "All agreements made legally are valid as laws for those who make them."
This principle is a principle that gives the parties the freedom to: 1.
Make or not make an agreement 2.
Enter into an agreement with anyone 3.
Determine the contents of the agreement, its implementation, and requirements 4.
Determine the form of the agreement, whether written or oral However, as stated before even if the principle called freedom of contract but there is some limitation.
The limitation is used to protect both of the parties.
b.
Principle of Consensualism (Concensualism) The principle of consensual can be concluded in Article 1320 paragraph (1) of the Civil Code.
In this article, it is determined that one of the conditions for the agreement's validity is the existence of a word of agreement between the two parties.
Every agreement must be based on a consensus.
It does not have to be formally held but sufficiently agreed by both parties.
An agreement is an agreement or meeting of will between the parties at the same point.
c. The Principle of Legal Certainty (Pacta sunt servanda) The principle of legal certainty, also known as the pacta sunt servanda principle, is a principle related to the consequences of the agreement.
The principle is basic and it universally accepted as one of the contract law principle.5 5 Hayland Richard, Pacta Sunt Servanda: ‘A Meditation’, (1994) 34, Virginia Journal of International Law, p.406 The principle of pacta sunt servanda is that judges or third parties must respect the substance of the contract made by the parties, as befits a law (as long as the object or purpose of the contract legal).
They may not intervene in the substance of the contract made by the parties.
The principle of pacta sunt servanda can be concluded in Article 1338 paragraph (1) of the Civil Code.
d. The Principle of Good Faith (Good Faith) The good faith principle is one of the key concept in civil law system.
6 This principle provides protection for each of the party interest.
In Indonesia, the principle of good faith is contained in Article 1338 paragraph (3) of the Indonesia Civil Code, which reads: "The agreement must be carried out in good faith."
This principle is the principle that the parties, namely the creditor and the debtor, must carry out the substance of the contract based on firm belief and the goodwill of the parties.
The principle of good faith is divided into two types, namely subjective good faith and objective good faith.
In the first intention, someone pays attention to the real attitude and behavior of the subject.
In the second intention, the assessment lies in common sense and fairness, and an objective measure is made to assess the situation (an impartial assessment) according to objective norms.
e. Personality Principles (Personality) The principle of personality is a principle that determines that someone will perform and/or make a contract only for the benefit of that person.
This can be seen in Article 1315 and Article 1340 of the Civil 6 Ejan Mackaay, ‘Good Faith in Civil Law Systems: A Legal-Economic analysis’, (2012) 18, Revista Chilena de Derecho Privado, p.149 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… | 151 Code of Indonesia.
Article 1315 of the Civil Code states: "In general, a person cannot enter into an engagement or agreement other than for himself."
Article 1340 of the Civil Code reads: "The agreement is only valid between the parties who made it."
It means that the agreement made by the parties only applies to them, does not apply to other people.
However, there are exceptions to this provision, namely as stipulated in Article 1317 of the Civil Code, which states: "An agreement can also be made for the benefit of a third party, if an agreement made for oneself, or a gift to another person, contains such a condition."
This article regulates that a person can enter into a contract for the benefit of a third party, provided that there are certain conditions.
In comparison, Article 1318 of the Civil code does not only regulate agreements for oneself but also for the interests of their heirs and for people who obtain rights thereof.
If the two articles are compared, Article 1317 Indonesian Civil Code regulates agreements for third parties, while Article 1318 Indonesian Civil Code is for the interests of themselves, their heirs, and people who obtain rights from those who make them.
Thus, Article 1317 Indonesian Civil Code regulates the exemption, while Article 1318 Indonesian Civil Code extends its validity.
In addition to the principles described above, in the Engagement Law Workshop organized by the National Law Development Agency (BPHN), the Ministry of Justice of the Republic of Indonesia on 17-19 December 1985 succeeded in formulating eight principles of national engagement law, namely as follows: a.
Principle of Trust The principle of trust implies that everyone who will enter into an agreement believes that the parties will fulfill every achievement made between them in the past.
b.
Principle of Legal Equations The principle of equality of law implies that the legal subject who enters into an agreement has the same position, rights, and obligations in law.
They must not be distinguished from one another, even though the legal subjects have different skin color, religion, and race.
c. Principle of Balance The principle of balance is the principle that requires both parties to fulfill and carry out the agreement.
The creditor has the power to demand achievement and, if necessary, can demand the repayment of the achievement through the debtor's wealth.
However, the debtor also bears the obligation to carry out the agreement in good faith.
d. The Principle of Legal Certainty The agreement as a legal figure contains legal certainty.
This certainty is revealed from the binding strength of the agreement, namely as a law for those who make it.
e. Principle of Morality This moral principle is bound in a fair engagement, which is a voluntary act from a person who cannot claim the right for him to challenge the debtor's performance.
It can be seen in zaakwarneming, which is someone doing actions voluntarily (morally).
The person concerned has a legal obligation to continue and complete his actions.
One factor motivating the person concerned to commit such legal acts is based on morality as a calling to his conscience.
1.
Principle of Compliance Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 152 | Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… This principle relates to the provisions regarding the agreement's contents, which are required by appropriateness based on the nature of the agreement.
2.
The principle of habit This principle is seen as part of the agreement.
An agreement is binding for what is expressly regulated and for things that are generally followed.
3.
Principle of Protection The principle of protection implies that the debtor and creditor must be protected by law.
However, it is the debtor who needs to receive protection because this party is in a weak position.
These principles form the basis of the parties in determining and making a contract in their daily legal activities.
Thus it can be understood that the broad principles above are essential and absolutely must be considered for the contract maker so that the final goal of an agreement can be achieved and carried out as desired by the parties.
Although a national engagement law workshop had been conducted, which resulted in the principles of national engagement law, the divine principle was not included in the results of the workshop.
This is understandable because the workshop has been going on for a long time, about 30 years ago, even though the development of treaty law, especially Islamic law, has been very rapid in Indonesia recently.
Therefore, it is essential to include the divine principle in the law of future national covenants.
The next section of this article will discuss the Divine Principle from several theories.
7 Ja’far Baehaqi, Dialektika Hukum Islam dan Hukum Nasional dalam Formulasi Hukum The review of Divine Principles from Natural Law Theory Natural law is the legal norm that is supra positive, unchanging, universal, and automatically applies and possibly natural rights with correlated obligations based on the natural order created by God or not.
Natural Law Laws could be described by humans a priori of Tatakodrati with the help of natural reason.7 Natural law arises from the desire to perfect the positive law, which is imperfect, flawed, and inadequate as a picture of a noble, high, and perfect law.
Natural law developed because of the urge to unite positive laws that differed according to regions, countries, and different times.
Some opinions about the effect or the relationship between natural law and positive law: some believe that natural law is a positive law, ius constitutum, some believe that natural law is an ideal law, a measure for positive law, an ius constituendum, some are argued, that natural law breaks positive law.
So natural law competes with positive law.
From Greek and Roman culture, natural law spread into the medieval culture through its most significant carrier and developer, namely Thomas Aquinas (12241274).
Thomas believes Lex Aeterna / Eternal Law is God's law to govern the entire universe.
Lex Aeterna comes from God's intellect and is launched for the good of all creatures, humankind, and nature as a whole.
Especially for humans, for the sake of eternal truth, it is revealed to humans Lex Divina (part of Lex Aeterna), which is notified through a statement (open baring) in the word of God.
Besides that, there is natural law (ius naturale), part of the Lex Aeternae, where humans take part as beings endowed with reason.
Natural law is the basis and guidance Perbankan Syari’ah di Indonesia, (Universitas Diponegoro, 2013) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… | 153 for positive law, which derives from natural law.
Natural law cannot be used as a competitor to positive law; natural law embodies the critical normative idea of positive law (Brunner).
The critical content of natural law is justice.
Humans have the same existence towards Allah.
Each human being is responsible to Allah.
Besides that, humans also have different positions and functions in society.
According to Brunner, the freedom to exercise the recognition of belief, the right to life and body (against slavery), the right to private property, the right to work, the right to study, and education.
The rights of freedom by Brunner are distinguished from human rights.
The right to freedom is the right of birth, attached to an individual under any circumstances that should be protected.
In terms of natural law theory, the divine principle includes Lex Divina, which is God's statement outlined in God's word, regulating human life.
In Islamic law, the Divine principle has been used as one of the principles in Islamic engagement law; this means that in Islamic engagement law, the Divine principle has become lex naturale / ius naturale.
If later, the Divine principle is included in the national engagement law, then the Divine principle will also become Lex Positiva.
The review of Divine Principles from Sunt-Servanda Pact Pacta Sunt Servanda means that the contract is binding.
8 This theory originates and develops in the legal tradition of Continental Europe, mentioned that a contract is made legally and following 8 Davison-Vecchione, D. ‘Beyond the Forms of Faith: Pacta Sunt Servanda and Loyalty’.
(2015) 16(5) German Law Journal, 1163–1190.
applicable law, and is also following custom and feasibility so that it is assumed to be a contract made in good faith.
The clause of the clause in such a contract binds the parties that make it, where the power of binding is equivalent to the power of binding law.
Therefore, the contract's performance must not be detrimental to either the counterparty to the contract or a third party outside the parties to the contract.
The theory of Sunt Servanda means that a contract binds the parties making it, and binding it is equal to the strength of a law made by the parliament and the government.
Sunt Servanda Pactacts as a fundamental theory (grand theory) because it requires various interpretations and adjustments and is varied when manifested in practice.9 Major religions always emphasize the importance of obeying what has been promised.
That promise must be kept.
Religion is the most critical factor in maintaining human dignity and holiness.
This elevation of human dignity is the goal of every religion.
As a result, no religion considers the bondage of a contract lonely.
All of them suggested that the contract be kept because the promise was sacred.
Hinduism gives the doctrine to its adherents that fulfilling what has been promised is not a light obligation because defaulting on it can be a sin and will receive substantial rewards in the hereafter.
Brihaspati reminded that people who do not keep their promises to pay their debts would be born in the creditor's house as slaves, single, a woman, or a fourlegged animal.
Narada said that all obedience belongs to his creditors.
In short, not paying a debt is considered holding other people's 9 Dr. Munir Fuady, S.H., M.H., LL.M.. Teori teori Besar (Grand Theory) dalam Hukum, (Kencana, Jakarta, 2014) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 154 | Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… property for the debtor's benefit so that the debtor is equated with a thief.
Christianity and Islam also give a place of honor to the position of a contract.
According to Islam, breaking a promise is considered a sign of hypocrites.
Christianity also upholds a contract's attachment, including the obligation to keep the contract even though it is made with the enemy.
Prophet Muhammad made a contract with the enemies led by Abu Lahab and Abu Jahl, which is known as the Hudaibiyah agreement.
Likewise, when the prophet Muhammad made a contract with the enemy, namely the Jews in Medina, which became known as the Medina Treaty.
In Judaism, the command to keep promises is also mentioned repeatedly in various books.
Divine principles include the obligation to obey agreements based on one’s God’s faith, not just obey His commands.
Therefore, it is the legal subject's spirituality that feels that it is always being watched by God, which causes him to fulfill the covenant.
In this regard, if the Divine principle is examined from the Pacta Sunt Servanda theory, it can be concluded that the Divine principle is in line with the Pacta Sunt Servanda theory, even the Divine principle is higher than the Pacta Sunt Servanda theory.
The principle of Divine is in line with the Pacta Sunt Servanda theory because they both State that the agreement made legally must be kept.
Meanwhile, the reason why the authors consider that the Divine principle is higher than the Pacta Sunt Servanda theory is that based on Pacta Sunt Servanda theory, a person is obliged to keep or carry out the agreement because the agreement made legally applies as law for the parties.
The agreement, therefore, must be carried out in good faith and cannot be canceled unilaterally.
In its development, as written by Achmadi Miru as mentioned above, the principle of Pacta Sunt Servanda is also closely related to the principle of good faith and the conditions of causa, which are lawful for the validity of an agreement.
Based on the two jurisprudences mentioned above, it can be seen that the application of the Pacta Sunt Servada principle can be limited if it turns out that at the time of agreeing, there is bad faith or bad faith from one of the parties.
The principle of good faith in making the agreement is closely related to discussing the agreement's validity, particularly regarding the terms of the legal cause.
So far, the causa requirement, which is lawful here, means that for the validity of the agreement, one of the conditions is that the agreement must not be contrary to law, public order, and morality, or propriety.
According to the Supreme Court decision above, the absence of good faith at the time of agreeing was considered contrary to propriety or morality, so the agreement had to be revised from the prior interest of 5% per month to 2% per month.
If we want to be consistent, an agreement that at the time of its creation does not meet a legal cause's requirements.
As a result, the agreement is null and void, which means that the agreement is invalid, and it is assumed that there was never an agreement from the beginning.
If the agreement is not valid, then the Pacta Sunt Servanda principle should also not be implemented.
Regarding the divine principle, if we are consistent that our State's basis is Pancasila and the first precept of the Almighty Godhead, this Divine element should also be included in our contract law.
One way to include the element of Divinity in the rules regarding the validity of the agreement is to add that the lawful causes which have been interpreted so far only mean Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… | 155 that the agreement made cannot be contrary to law, public order, propriety/morality alone, added to the rules that the agreement is made.
What is made must also not conflict with the religious teachings of the parties to the agreement.
It must be so because to ground Pancasila, the precepts in Pancasila must also be implemented in the real life of the people, not only as a slogan or just memorization, including in the life of contract law.
This divine principle has a more significant position/influence than the Pacta Sunt Servanda principle/theory because the Pacta Sunt Servanda principle states that an agreement made legally applies as law for the parties, so it must be carried out in good faith.
So a person's obedience in fulfilling the agreement according to the Pacta Sunt Servanda principle is based on something outside himself, namely the "law," while based on the divine principle, one's obedience to fulfill the agreement comes from within the person concerned, namely his faith in God and his religious teachings.
The review of Divine Principles form Consciousness and Law Obedience Theory There are two kinds of legal consciousness: positive law awareness (identical to law obedience) and negative law awareness (identical to law disobedience).
Various literature explained that a person obeys the law or does not break the law, apart from being a deterrent factor or fear after witnessing or considering the possibility of sanctions being imposed on him if he does not obey the law, due to pressure from other individuals or group pressure.
If a role model strongly opposes any act that violates the law, it will prevent someone from breaking the law.
It is also possible that an individual decides to obey the rule of law for personal moral reasons.
On the other hand, other individuals may decide to disobey the law, also for moral reasons.
The divine principle is included in the third type of obedience, namely internalization.
If someone obeys a rule, it is true because he/she feels that the rule is following the intrinsic value he/she adheres.
Suppose this divine principle is included in the law of agreement.
In that case, it will increase Indonesian citizens' faith in their God and carry out their respective religions' teachings.
The practice of the precepts of Almighty God can truly be realized, especially in agreements.
Review of Divine Principles in terms of Natural Law Theory Natural law is the whole legal norm that is supra positive, unchanging, and universal.
It automatically applies and perhaps natural rights with correlated obligations based on the natural order created by God or not, which laws and natural rights can be described by humans a priori from tatakodrati with the help of natural reason (Notohamidjojo, 1975).
The idea of natural law arises from the desire to perfect the positive law, which is imperfect, flawed, and inadequate as a picture of a noble, high and perfect law.
Natural law develops because of the urge to unite favorable laws that differ according to regions, countries, and times.
Some opinions about the influence or, more precisely, the relationship between natural law and positive law: some believe that natural law is a positive law, ius constitutum, some believe that natural law is an ideal law, a measure of positive law, an ius constituendum, some are argued, that natural law breaks positive law.
So natural law competes with positive law.
From Greek and Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 156 | Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… Roman culture, natural law spread into the medieval culture through its most significant carrier and developer, namely Thomas Aquinas (12241274).
Thomas believes Lex Aeterna / Eternal Law is God's law to govern the entire universe.
Lex Aeterna comes from the mind of God and is launched for the good of all creatures, humankind, and nature as a whole system.
Especially for humans, for the sake of eternal truth, it is revealed to humans Lex Divina, which is part of Lex Aeterna, which is notified through a statement (open baring) in the word of God.
Besides that, there is natural law (ius naturale), a part of Lex Aeternae where humans take part as beings endowed with reason.
Natural law is the basis and guideline for positive law, which is the derivation and determination of natural law.
Natural law should not be used as a competitor to positive law.
Natural law embodies the critical normative idea of positive law (Brunner).
The critical content of natural law is justice.
Humans have the same existence towards Allah, and each human being is responsible to Allah.
Besides that, humans also have different positions and functions in society.
According to Brunner, the freedom to exercise the recognition of belief, the right to life and body (against slavery), the right to private property, the right to work, the right to study, and education.
The rights of freedom by Brunner are distinguished from human rights.
The right to freedom is the right of birth that under any circumstances is attached to an individual and should be protected according to society.
It could be concluded from the theory of natural law that the divine principle includes Lex Divina, namely God's statement as outlined in God's word, which aims to regulate human life.
In Islamic law, the Ilahiyah principle has been used as one of the principles in Islamic engagement law.
It means that in Islamic engagement law, the Ilahiyah principle has become lex naturale / ius naturale.
If the Ilahiyah principle is later included in the national engagement law, then the Ilahiyah principle will also become Lex Positiva.
The Review of Divine Principles from Grundnorm Theory Grundnorm is the most fundamental rule of law about human life; on top of this basic norm, other more concrete and more specific legal rules are made.
Usually, the basic norms that apply in a country are written in the Constitution of that State.
According to Hans Kelsen, every country's law must come from a fundamental law, namely the Constitution.
For the Indonesian context itself, the Grundnorm is Pancasila, which is contained in the Preamble of the 1945 Constitution, which is based on the State, the philosophy of life of the nation / the nation's soul, and the source of all sources of law in Indonesia.
Therefore, all existing laws in Indonesia must be based on and originate from Pancasila.
Especially the first principle of "God Almighty" in Pancasila, including incorporating divine principles in the upcoming Indonesian National Agreement Law.
The Divine Principle, when examined from the Grundnorm Theory, is a source as well as an implementation of Grundnorm itself.
Divine principles, which are teachings from God, are said to be the source of Grundnorm because Grundnorm is the most fundamental rule of law about human life where on top of these basic norms, other more concrete and more specific legal rules are made.
So, the highest or most Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Djumikasih, Luth, Budiono, Koeswahyono The Notion of Divine Principle (Asas Ilahiah)… | 157 fundamental rules come from God and Natural Law Theory; they are only described in more specific rules.
Particularly for the Indonesian context, the Grundnorm is Pancasila, where the first precept is Almighty Godliness.
Suppose we include the Divine Principle in the law of our upcoming National agreement.
In that case, it means implementing the precepts of God Almighty in the real life of the Indonesian people through regulations in the field of treaty law.
IV.
CONCLUSION In Summary, it can be concluded that the essence of Divine Principles is a principle or guideline that is the most fundamental and influential aspect that comes from God but exists in humankind.
from the analysis of the above theories Natural Law Theory, Pacta Sunt Servanda Theory, Consciousness and Legal Obedience Theory, Grundnorm Theory, and Theory of Truth, The Divine principle aims to seek the truth and regulate the parties in the field of contract law.
The parties that making and implementing agreements following their respective religious teachings can benefit and not harm, both for themselves and others so that Indonesian citizens can realize and practice the Only Divine Precepts in their real daily activities in the field of contract law.
This study result shows that it is fundamental that the Divine principle needs to be included as one of the principles of the upcoming Indonesian National Agreement Law.
Especially to the contract born because of the agreement.
The divine principle in the Agreement Law can be applied for Indonesian citizens who are parties to the agreement, not only limited to the Indonesian Muslim citizen.
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132 | DOI: http://doi.org/10.21776/ub.blj.2021.008.01.08 Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective Hamja, Hamjaa, Faizin Sulistiob aFaculty of Law Universitas Wiralodra Indramayu Email: hamja.hamja904@gmail.com bFaculty of Law Universitas Brawijaya Email: faizin@ub.ac.id Submitted : 2021-03-12 | Accepted : 2021-04-28 Abstract: The Regency of Indramayu has been stigmatised as a land of trafficking of women and children, not only at national level, but it has also transcended overseas.
This research is aimed to seek deeper into the perspective of the victims from Bongas, Indramayu regarding their involvement in the trafficking.
This research employed case study method and field observation based on descriptive-analytical approach.
This research reveals that the majority of the people in Indramayu are living in the breadline, and they are mostly poorly educated.
Women in Indramayu are even denounced as the breadwinner, or locally called as “luruh duit” or rushing for money, and this term is inappropriately interpreted; women are burdened with the responsibility to raise the economic status of the families by working in big cities.
The culture of earning money by migrating to big cities is seen as a chance for human trafficking.
This research also suggests some strategies such as co-assisting and developing the program to identify, rehabilitate, and reintegrate the victims of the crime.
Keywords: girls; victim; human trafficking.
I.
INTRODUCTION Study on crime victims conducted by Van Dijk and Stenmetz (1980) in the Netherlands indicates that women are less likely than men to be the victim, but the former have higher criminal risks for crimes such as rape.
Despite the low number of victims for women, women tend to conceal what they have experienced compared to men.
Roy Morgan Research Centre (1997) 1 Rima Astuti, ‘Hubungan Kesadaran Akan Kerentanan Diri dan Mekanisme Coping Pada Perempuan Pekerja Malam di Tempat Hiburan found that 79% of women surveyed feel in danger being in public places at night, while Women’s Safety Survey found out that 52% of women feel threatened when waiting for public transport alone at night.
Women are considered prone to being crime victims.1 In line with the above perspective, although the figure for female victims in most criminal cases is smaller than that of men, the figure can be higher for women as Karaoke di Wilayah Jakarta Barat’, (2011) 7(11) Jurnal Kriminologi Indonesia, p. 193. mailto:faizin@ub.ac.id Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 133 victims in a criminal case.
Women are often positioned as subordinates and they are likely to be vulnerable to trafficking.2 In a wider scope, victims are regarded as those suffering or harmed due to violation of criminal law or non-criminal law.
On the other hand, in a more specific definition, victims are understood as those suffering from criminal offenses.
Logically, it can be understood that crime victims have their right to protection.
Firstly, this protection is intended to give time of recovery to the victims concerned and to anticipate any intention of uncontrolled revenge.
The state takes over the victim’s role in filing a charge with the intention to minimise potential of revenge and for the sake of criminal sentences based on rational consideration.
Secondly, it is constitutional responsibility of a state to protect the victims since it is the objective set by the state that aims to guarantee the life of the citizens and welfare.
Victims are those who are harmed, and they do not receive enough attention and this fact has carried them away further from judicial system.3 Victimisation mostly takes young women in human trafficking, especially those with economic burden, issues in education, and lack of religious knowledge.4 Several issues have put girls in the trafficking.
The issues causing this victimisation have mainly triggered the trafficking as what happened in Bongas, the 2 Q. Zaman, ‘Sanksi Pidana Perdagangan Perempuan (Women Trafficking) (Studi Komparatif Antara Undang-undang Nomor 21 Tahun 2007 Tentang Pemberantasan Tindak Pidana Perdagangan Orang dan Hukum Islam’, Raheema, (2017) 2(3) Jurnal Studi Gender dan Anak, p.17.
3 Lilik Mulyadi, Kapita Selekta Hukum Pidana, Kriminologi dan Viktimologi, (Jambatan, Jakarta, 2007), p. 127-132.
4 Anis Soraya, ‘Binahayati Rusyidi dan Maulana Irfan, ‘Perlindungan Terhadap Anak dan Korban Regency of Indramayu.
However, economic, educational, and religious factors no longer seem to be the significant factors triggering trafficking, but social gaps, consumptive and instant way of life seems to have replaced those factors.
5 All these new factors have demotivated their desire in education, but they rather choose to work and earn money on their own instead of having to meet complicated requirement to study in formal institutions.
Similarly, Forrel6 states “trafficking is motivated by money”, and traffickers are also motivated by money.
This sentence gives us understanding that economic factor serves as one of the main factors of crime due to economic gap (social gap).
Such an issue triggers people to seek for a job even when they must migrate to another city to get the job.
Gary Becker from University of Chicago argues that a person tends to commit a crime since the profit he/she gains may be more promising than that obtained from other more acceptable jobs.
Therefore, some are found to prefer being an offender due to the promising profit.7 In reference to the issues above, this research is aimed to find out to what extent trafficking of women in Bongas, Indramayu is understood from victims’ perspective.
II.
LEGAL MATERIALS AND METHODS This research employed case study method and field observation based on Trafficking’’, (2017) 2(1) Prosiding KS.
Riset, PKM, p. 79.
5 An interview with a staff of Kusuma Bongas Foundation, Sulistiani Andan Dewi on the 16th of December 2019 in Bongas, Indramayu 6 Everd Scor Rider Daniel, Nandang Mulyana, Budhi Wibawa, ‘Human Trafficking di Nusa Tenggara Timur’, (2016) 7(1) Jurnal Social Work, p. 26.
7 Tubagus Ronni Nitibaskara, Catatan Kriminalitas, (Jayabaya Univercity Press, 1999), p. 50.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 134 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective descriptive-analytical approach.
The research technique is explorative, in which it is designed to develop the perspective about the case of trafficking by investigating the case to obtain the flow of the process.
The research design is intended to position this trafficking case as the primary case or single case rigorously studied within the social system in which trafficking practices take place.
This is aimed to describe all the elements involved in the trafficking.
Analysis unit in this research involves: persons, families, and social groups in the society, in which persons comprise 1) the young victims of trafficking recruited, collected, accommodated, sent, trafficked, and employed by particular parties by violating the law without any approval or consent of other parties or of the children involved as the victims; 2) the traffickers under arrest or detained by the police or prosecutors or those still in operation; 3) local apparatuses and policy implementers responsible for prevention and countermeasures of trafficking of women and children in the government of Indramayu; and 4) families, comprising the members of the families of the victims.
The families are those having a kinship or within married ties with the victims.
Social groups are the members of public in the society.
As for the data collection techniques, the primary data was obtained from in-depth interviews following the guidelines prepared and the secondary data was obtained from several organisations related with trafficking issues.
Furthermore, the collected data in the study was analysed by means of descriptive analysis through understanding (vestehen) to profoundly investigate the meaning or definition of the trafficking case that wholly 8 Didik M.Arief Mansyur dan Elisatris Gultom, Urgensi Perlindungan Korban Kejahatan: Antara took place.
In terms of inferences or conclusion, discussions took place and were attended by the researchers and informants in which subjective data was further studied to allow them to be more understood.
III.
RESULTS AND DISCUSSION Victimology is an English term for Victimology which comes from the Latin word Victima which means victim and logos which means study / science.
Victim is a person who has suffered physical or mental suffering, loss of property or resulted in death for an act or attempted minor offense committed by the perpetrator of a criminal act and others8.
In line with the above opinion is Arief Gosita, which states that what is meant by the victim is a person who suffers physically and spiritually as a result of the actions of others seeking self-fulfilment or other people who are contrary to the interests and rights of those who suffer.
In addition, victims are people who individually or in groups have suffered losses, including physical or mental injuries, emotional pain, economic loss or actual deprivation of their basic rights, either because of their actions (by act) or because of negligence (by omission).
According to Muladi, what is meant by victim is someone who has suffered losses as a result of a crime and or whose sense of justice has been directly impaired as a result of his experience as a target or target of crime.
In simple terms, the definition above can be translated, victims of crime are people who either individually or collectively, suffer losses due to actions or do not do anything that violates the criminal law in force in a country, including regulations that prohibit abuse of power.
Completely victims of Norma dan Realita, (Jakarta: PT.
RajaGrafindo Persada, 2008), p. 73.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 135 criminal acts are “people who individually or collectively have experienced suffering, including physical or mental suffering, emotional pain, economic loss, or substantial impositions, human rights, through actions or omission [ that violates criminal or criminal law.
Crime here is that each of these acts is given a criminal sanction for violating the norms of society's expectations of which behaviour is appropriate as a citizen.
JE Sahetapy stated that what is meant by victims is an individual, a legal entity who has suffered injuries, damages or other forms of loss that are felt both physically and psychologically.
This problem is not only seen from a legal standpoint, but also from an economic and political perspective, as well as from a social and cultural perspective.
Those who become victims in this case can be due to the fault of the victim himself, the role of the victim directly or indirectly, and without the role of the victim9.
Based on the relationship between the perpetrator and the victim's accountability, Stephan Schafer presents the typology of victims into seven forms, namely: a.
Unrelated victims are those who have no connection with the perpetrator and become victims because they are potential.
For this reason, from the aspect of responsibility it rests entirely on the side of the victim.
b.
Provocative victims are victims caused by the role of the victims themselves to trigger crimes.
Therefore, from the aspect of responsibility lies with the victim and the perpetrator together.
c. Participating victims.
The victim's actions are unconsciously able to encourage the perpetrator to commit crimes.
For example, taking large 9 J.E.Sahetapy, Victimologi: Sebuah Bunga Rampai, (Jakarta: Sinar Harapan, 1987), p. 25. amounts of unattended money from the bank, then wrapped it in a plastic bag so as to encourage people to seize it.
In this aspect, the full responsibility lies with the perpetrator.
d. Biologically weak victims are crimes caused by the physical condition of the victims, such as women, children, and elderly people, who are potential victims of crime.
In terms of the aspect, the responsibility lies with the community or the local government because they cannot provide protection to helpless victims.
e. Socially weak victims are victims who are not paid attention by the community concerned, such as homeless people with a. weak social position.
For that reason, the full responsibility lies with the criminals or society.
f. Self-victimizing victims are victims of crimes committed by themselves (false victims) or crimes without victims.
For this reason, the full responsibility lies with the victim because he is also the perpetrator of the crime.
g. Political victims are victims because of their political opponents.
Sociologically, this type of victim cannot be accounted for unless there is a change in the political constellation.
Victimology studies undergo three phases of development.
Initially, victimology studied only victims of crime.
In this phase, it is said to be penal or special victimology.
In the second phase, victimology not only examines the problem of crime victims but includes accident victims.
In this phase it is called general victimology.
The third phase, victimology has developed more broadly, Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 136 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective namely examining the problems of victims of abuse of power and human rights, in this phase it is said to be new victimology.
The development of this Victimology is inseparable from previous thinkers, namely Hans Von Henting, a criminologist in 1941 and Mendelsohn in 1947.
According to JE Sahet, the scope of victimology study includes how a person (can) be a victim determined by a victim that is not always related to the problem of crime.
This includes victims of accidents and disasters apart from victims of crimes of abuse of power.
JE Sahetapi, also argues that criminology and victimology are interrelated sides of a coin.
Attention to the crime that exists should not only revolve around the emergence of crime but also the consequences of crime, because from this it will appear that attention shifts not only to the perpetrator of the crime but also to the position of the victim of the crime.
This is also discussed by other legal experts in paying attention to this relationship, or at least the attention to the occurrence of crime is not only from one point of view, if someone becomes a victim of crime, it is clear that a crime has occurred, or there is a victim of crime and there is a crime there is a victim.
So, if you want to describe and prevent crime, you must pay attention to and understand the victims of a crime, but people's habits only tend to pay attention to the perpetrators of the crime.
Victimology and criminology studies have a starting point at understanding a criminal victimization, namely victimization from the perspective of the victim.
victimization, among others, can be formulated as an accumulation of suffering (mental, physical, social, economic, moral) on certain parties and from certain interests.
According to JE Sahetapy, victimization is suffering, both physically and psychologically or mentally related to the actions of other parties.
In victimology, it is also known as a double victim, namely victims who experience various kinds of suffering such as mental, physical, and social suffering, which occur when the victim experiences a crime after and at the time the case is examined and after the completion of the court.
In addition, JE Sahetapy argues that the victimization paradigm includes: a.
Political victimization can include aspects of abuse of power, rape of human rights, interference of armed forces outside of their functions, terrorism, intervention and warfare locally or on an international scale.
b.
Economic victimization, especially those that occur due to collusion between the government and conglomerates, the production of goods that are not of good quality or that damage health, including environmental aspects.
c. Victimization of the family, such as rape, torture, against children and wives and neglect the elderly or their own parents.
d. Victimization of the media, in this case can be called drug abuse, alcoholism, malpractice in the field of medicine and others.
e. Juridical victimization, this dimension is quite broad, both concerning the aspects of the judiciary and correctional institutions as well as those concerning the dimensions of discrimination in legislation, including applying power and stigmatization even though the judicial aspects have been resolved.
Victimology with its various views broadens the theory of criminal ethology which is needed to better understand the existence of crime as a structural and nonBrawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 137 structural victimization.
In addition to the views in victimology, it encourages people to pay attention to and serve everyone who can become victims mentally, physically, and socially.
This victimology can understand the position of the victim as the basic cause of crime and seek the truth.
In seeking the truth and to understand the problem of evil, delinquency and deviation are a dimensionally true proportion.
In general, victimology studies have several benefits, namely: a.
Benefits relating to defending victims' rights and legal protection.
b.
Benefits relating to the explanation of the victim's role in a crime.
c. Benefits relating to efforts to prevent victims.
According to Ezzat Abdel Fattah, from the perspective of victim involvement in the occurrence of crimes, there are several forms of victims, namely: a. Non-participating victims are those who do not deny / reject crime and criminals but do not participate in the prevention of crime.
b.
Latent or predisposed victims are those with certain characteristics which tend to become victims of certain violations.
c. Provocative victims are those who cause crime or trigger crime.
d. Participating victims are those who are not aware or have other behaviours that make it easier for themselves to become victims.
e. False victims are those who are victims because of themselves.
Apart from that, Sellin and Wolfgang also divided it as follows: 10 Lilik Mulyadi, above n 3, p. 120 a.
Primary victimization, what is meant by individual victims.
So, the victim is an individual (not a group).
b.
Secondary victimization, the victims are groups, such as legal entities.
c. Tertiary victimization, the victims are the wider community.
d. Mutual victimization, the victims are the perpetrators themselves, for example prostitution, adultery, and narcotics.
e. No victimization, what is meant is not that there are no victims, but the victims cannot be immediately identified.
For example, consumers are tricked into using a product10.
Based on the above, it shows that in a crime there is the involvement and responsibility of the victim himself so that a crime occurs.
Victims can have a functional role in the occurrence of a crime, whether consciously or unconsciously, directly or indirectly.
The role in question is the attitude and condition of a person who will become a potential victim or attitudes and circumstances that can trigger someone to commit a crime.
This is in line with Hentig's opinion, which states that the role of victims in causing crime is: a.
The crime was intended by the victim to occur.
b.
Losses due to crime may be used by the victim to get a bigger profit.
c. The adverse effect of the victim may be a collaboration between the perpetrator and the victim.
d. Losses due to a crime actually do not occur if there is no provocation of the victim.
In Law No.
31 of 2014 the definition of a victim is a person who experiences physical, mental, and / or economic loss as a Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 138 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective result of a criminal act.
The limits on crime victims can be described as follows: a) Judging from its nature, there are individuals and collectives.
Individual victims can be identified easily so that victim protection can be done in a real way, but collective victims are more difficult to identify.
However, Law No.
23/1997 on Environmental Management provides a way out in the form of demanding compensation through class actions.
b) Judging from the losses, it can be suffered by a person, community group and the wider community.
In addition, victims' losses can be material in nature which can be assessed in money and immaterial, namely feelings of fear, sadness, psychological shock.
Hans Von Hentig divides several types of vulnerable victims, namely11: a.
The young: Children, because of their spiritual and physical weakness and immature personalities, do not have enough resistance to face the attacks of adults.
They are not only victims of the criminal act of property, but can also become sexual victims of both men and women.
b.
The female: Women, because of their weaknesses are easy to become victims, easy women often become victims of murder after experiencing rape, old women because they are considered rich so that they become victims of criminal acts against assets.
c. The old: Parents, usually tend to start accumulating property, have the risk of becoming victims of crimes against their property.
Hentig said that the 11 Romli Atmasasmita, Masalah Tuntutan terhadap Korban Tindak Pidana, (Jakarta: Badan Pimpinan older generation on the one hand hold / have accumulated wealth, on the other hand there are weaknesses both physically and mentally.
In this situation there is a danger of becoming a victim risk.
d. The mentally defective and other mentally deranged: Crazy people, drinkers, drug addicts, psychopaths; because under such conditions it is certainly impossible to sustain a criminal attack.
Hentig said of all male murder victims ± 66% (approximately sixty-six percent) were alcoholics, and it was found that approximately ± 70% (approximately seventy percent) of the murder victims were in fact drunk.
e. Immigrants: Immigrants, this group has a lot of risk of becoming victims of various kinds of crime, robbery, fraud.
This is due to some of the difficulties they face in interacting with the new language and culture in their place.
This kind of situation is often used negatively by certain groups to get wants or benefits.
f. Minorities: Minorities, this group is almost the same as immigrants, it's just that the difference lies in the kind of assumption that they are not equal before the law when compared to the majority group.
The racial assumption of the majority group tends to increase the risk of becoming a victim.
g. Dull normal: Stupid people, this group has the risk of becoming a victim from birth, because the level of intelligence is below average.
Hukum Nasional Departemen Kehakiman RI, 1991), pp.
11-12 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 139 f. The depression: Depression, people who are constantly depressed in their lives will experience deterioration of their physical and mental strength.
In these conditions they are at risk of becoming victims because they tend to be apathetic and surrender, there is no nature to fight and attack because of their weak self-confidence.
g. The acquisition: Greedy, a person who is greedy is easy to trap, deceive, or take advantage of because of his greed for property or position.
h. The wanton: Neglectful, careless people or people tend to have the risk of becoming victims because of their careless nature.
i.
The lonesome and the heart broken: Lonely and heartbroken, people who are in such a situation have the potential to become victims of crime, can be deceived, and easily taken advantage of because of their mood instability; j.
The tormentors: Violent, people who have a high or violent temperament and like to abuse are at risk of becoming victims.
An example of a husband who often hurts his wife, is often the victim of murder committed by his own children with a motive of revenge.
k. The blocked, exempted and fighting: Closed, someone who is blocked or someone who is in a very difficult position and condition to get out of danger.
This group has the potential to experience the risk of crime 12 Indra Yohanes Killing dan Beatriks Novianti Killing-Bunga, ‘Motif, Dampak Psikologis, Dan Dukungan Pada Korban Perdagangan Manusia Di Nusa Tenggara Timur,’(2014) 10(10) Jurnal Psikologi Ulayat, p. 14. because it is difficult to get help from the authorities Meanwhile, the protective model for crime victims, namely: First, procedural rights, this model emphasizes the active role of victims in criminal justice processes, such as assisting the Public Prosecutor in every level of case examination.
The victim is the party whose opinion must be heard.
Second, compensation and restitution, a service model that emphasizes the provision of compensation in the form of compensation and restitution and efforts to restore the condition of victims who have experienced trauma, fear and depression due to crimes, as regulated in Law Number 31 of 2014 concerning Witness Protection and Victim.
Trafficking of women represents a social issue that interrupts the stability of social life.
It can even cause mental disorder due to traumatising effect.
Research findings 12 imply that the victims of human trafficking receive enough attention from the law but not enough psychological care.
It will be easier for scientists in psychology to develop their scientific findings when practitioners are keen to transform their findings in the field into scientific papers.
Such awareness should be the responsibility of all parties for the recovery of the victims.
On the other hand, Priyono Adi13 argues that trafficking of women brings effects to the victims (1) physically such as (a) mild or serious physical injuries,(b) disabilities, (c) unwanted pregnancy, (d) communicable diseases, (c) sexually transmitted diseases, (f) HIV and AIDS, (g) death, (2) psychologically such as (a) lack of self13 Rizka Ari Satriani, Tamsil, Muis, ‘Studi Tentang Perdagangan Manusia (Human Trafficking) Pada Remaja Putri Jenjang Sekolah Menengah di Kota Surabaya’, (2013) 4(1) Jurnal BK UNESA, p. 69.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 140 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective confidence, (b) feeling of helplessness, (c) irrational feeling of fear, (d) trauma, (e) mental illness or stress, or (3) sexually such as loss of virginity, or socially such as being ostracised from society.
From all those impacts, physical impacts such as unwanted pregnancy, sexually transmitted diseases, HIV and AIDS are commonly found in the victims of trafficking.
The following are several examples of cases of trafficking in Bongas Indramayu.
The first case involves Mawar.
Mawar (not her real name) is the only child.
Her father works in a garage in Jakarta but never sends part of his earning to his family and he earns uncertain amount of money.
Her mother works as a peasant and earns uncertain amount too, depending on the workload she gets.
Mawar lives with her mother.
Upon her secondary school graduation, she decided not to continue her further education due to economic factor.
Mawar was offered a job by a man named Budi (not his real name) from Eretan village.
Her parents urged her to take his offer, but they had to spend 5 million rupiahs to get the job.
Furthermore, Mawar was taken to Daan Mogot, west Jakarta on the 5th of November 2015.
Mawar was introduced to a café manager called Ling Lung (not his real name), a chinese descendant.
Following the introduction, Mawar was taken upstairs to her room at about 15.00 WIB.
She was asked to take a shower and to put some makeup as if she were prepared for work; Mawar did as asked.
Mawar mingled with other new friends.
During the night, Mawar accompanied four men for IDR 300,000 each, but she was only given IDR 100,000 per guest.
Mawar worked every day serving three to six men for a month.
She complained she was not well, and her parents asked her to come back home.
On the 29th of December 2015 Mawar was on her way back home seriously ill. She was taken to the doctor upon her arrival, but she seemed to get even worse.
Her mother decided to take her to Bhayangkara Hospital of Losarang Indramayu.
She was tested HIV and the result came reactive, B20”.
The second case involves Bunga.
Bunga (not her real name) only has a sister.
Her parents were divorced when Bunga was a little child.
Her mother is a housewife who does not earn much.
She is mentally ill, and both Bunga and her mother live with her grandfather.
After her graduation from secondary school, Bunga stopped going to school since she did not have money for further education.
Bunga helped her parent doing house chores, but this tedium of working at home forced her to have a desire to work outside home to support the family.
Dahlia (not a real name), Bunga’s friend, came to offer a job in Jakarta as a maid for a pimp in a brothel in Kalijodo.
She was interested in taking the offer.
Bunga left for Jakarta in December 2015 with her friend by public transport on her own money.
Upon her arrival in Jakarta, Bunga went straight to her friend’s place and stayed for two days.
In the following day, Bunga saw Ojay, the person for whom Bunga worked in Kalijodo.
Unfortunately, Bunga did not receive her wages until the brothel house in Kalijodo was shut.
In panic of getting no money, Bunga contacted her friend and decided to stay there for a second time while waiting for her withheld wages from Ojay.
Knowing the fact that Bunga did not have any money left, Ojay offered Bunga to be a laundress in the neighbourhood and she was forced to take the job since she needed money to survive.
With her new job, Bunga did not get money regularly since it depended on the availability of customers.
Bunga was paid only IDR 15,000 per laundry basket.
Bunga had to pay for her rent as much as IDR 500,000 per Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 141 month while the withheld wages from Ojay never came and no one knew his whereabouts.
Since Bunga had no more money left to pay for the rent, Bunga started to miss her hometown and decided to contact her parents.
Hearing her condition, the family back in hometown was in panic and perplexed by the question of how to pick her up from Jakarta.
Bunga shared her condition with her friend and her friend tried to bring her to Kusuma Bongas Foundation.
Those two cases indicate that trafficking issues represent a new form of slavery in a modern world.
14 Those also clearly indicate that vulnerable young women often becoming the victims of trafficking come from poorly educated and broken families facing economic hurdles.
This environment has shaped vulnerability of the victims.
Poor education presents a barrier to information, and it is even worse when they live in a very remote area.
This unfortunate situation has made them prone to deceit by an irresponsible individual, the one involved in trafficking of women.
15 Trafficking of women in the district of Bongas Indramayu during which this research was conducted was considered serious since countless young women aged 17 years old served as migrant labours both domestically and overseas.
Some were positioned in Jakarta, Batam, Surabaya, and Bali and some others were in Malaysia, Singapore, Korea, and Hong Kong.16 Figure 1.Destinations to which women were trafficked as migrants from 2016 to 2017 Primary data: processed Some other victims of trafficking in Bongas are between 15 and 18 years old.
Children at this age group should have their rights to pursue education under the supervision of their parents to assure they 14 Lathifah Hanim dan Adityo Putro Prakoso,.
‘Perlindungan Hukum Terhadap Korban Kejahatan Perdagangan Orang (Studi Tentang Implementasi Undang-undang Nomor 21 Tahun 2007)’, (2015) 2(2) Jurnal Pembaharuan Hukum, p. 236. accomplish their compulsory education levels as set by the government.
This situation also indicates that those becoming the victims are mostly secondary school students or some have not even finished their 15 An Interview with Syarifudin, Head of Kusuma Bongas Foundation on the 16th of December 2019 in Bongas Indramayu.
16 An interview with Syarifudin, Head of Kusuma Bongas Foundation on the 24th of December 2019 in Bongas, Indramayu 2 3 3 12 2 10 1 3 13 6 7 15 1 3 1 15 7 3 3 1 13 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 142 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective formal secondary education, as shown in the figure 2.
Figure 2.
Varied Tendencies in Education from 2016 to 2017 Primary data: processed The question ‘what is the fastest way to tackle trafficking of women’ is raised.
When the trafficking is revealed, normally law enforcers will immediately carry out investigation and deliver enquiries since this is a criminal case for which police is responsible.
However, it requires more than just curative measures to completely clear this issue.
Why do many women in Bongas fall as victims?
From the data studied, gender discrimination is the cause of this trafficking, especially in terms of the way people in Bongas think.
Many families in Bongas still believe that education is supposed to be for most men instead of for women.
It is common to see women only hold their elementary education as their highest education degree, while men usually finish their high school.
Moreover, trafficking is Bongas is closely related to the perception or the perspective of the locals implying that women mostly end up as migrant workers 17 An interview with parents of victims of trafficking in Bongas after they are married to reach their maturity before they are ready for work.
When they become a widow, issues often start to come and they will easily become the spotlight in a negative way following their divorce.
The status as a widow is often defined as a woman without dignity, holiness, and virginity, and this stigma forces them to flee their neighbourhood as migrants.
In such a position, they are often submissive to their parents, doing what their parents wish them to do: becoming migrant workers.17 The influential role of parents in persuading their children to work as migrants leads to victimisation in trafficking.
In reference to a research, the number of women in trafficking is not due to the women’s own expectation, but it rather comes from the strong influence of their parents pushing them into prostitution and trafficking, where it all starts with their deployment in big cities as migrant workers.
A similar issue also took place in Karawang.
18 Organised trafficking of 18 Chandra Purnama, Windy Dermawan, Emil Mahyudin, ‘Sosialisasi Mengenai Perdagangan Manusia (Human Trafficking) Dalam Upaya 2 14 33 9 49 3 14 Tidak… DO SD Lulus SD DO SMP Lulus SMP DO SMA Lulus SMA Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 143 children is widely heard, and several villages in the district of Tempuran, the Regency of Karawang have been the source of trafficking.
Surprisingly, several parents even support their own children to work as migrant workers, in which money is the main factor of this inhumane encouragement.
Another study also reveals that money often manages to lure them into the darkness.
Exploited children often end up as sex workers with the expectation that they will receive five million rupiahs monthly as promised.
As told in the interview conducted, some victims are reported to have succeeded to be migrant workers in Jakarta.
Several workers coming back from Jakarta often share stories of their success and these stories lure others with the expectation of earning huge amount of money.
Indramayu has been stigmatised as ‘luruh duit’, and this problem is a social phenomenon that has been around in society, acceptable, and learnt for years.
‘Luruh duit’ happens because the growing social system fails to fulfil the needs of the locals spiritually, materially, or socially.
‘Luruh duit’ is accepted and brought into practice as part of the culture by the locals through the process of shared meaning that comprises understanding, definition, situation, vision, value, belief, myth, and even legend in the society.
Most people in Indramayu see ‘luruh duit’ as part of their life, without which they cannot live their life.
On the other hand, ‘luruh duit’ represents failure, cruelty, injustice, dishonesty, and some other stigmas.
This phenomenon deserves attention from all parties since women and children are responsible generation for the future; their dignity deserves protection.
Therefore, an organisation or a foundation called Kusuma Bongas in Indramayu was established to resolve trafficking by providing coassistance and development of a rehabilitation program.
This program is also supported by Terre des Home Netherlands (TdH NL).
The program involves the following activities: Table Program of Rehabilitation 1 Type of services : a.
Primary Needs : Providing basic services that are casuistic and occasional and that are adjusted to the capacity of an organisation b.
Accessibility to education : Establishing open secondary school intended to distract children from their involvement in trafficking and establishing kejar paket A (nonformal education equal to primary school to prepare students for national exam to get a certificate equal to primary school diploma), B (equal to secondary school), and C (equal to high school) for children.
c. Accessibility to health services : Establishing an association with health service providers and developing referral system of voluntary counselling for HIV-AIDS and sexually transmitted diseases.
Some contributions are made by organisations, but things have to be adjusted to the capacity of organisations.
d. Birth certificate : Facilitating issuance of birth certificate that is casuistic and occasional.
Some contributions are made by the organisation, but things have to be adjusted to the capacity of the organisation.
Pencegahan Tindak Pidana Perdagangan Orang (TPPO)’, (2018) 1(2) Jurnal Kumawula, p. 98.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 144 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective e. Counselling and coaching : Delivering counselling and coaching such as in fashion (sewing and embroidering), culinary art, and screen printing.
Some contributions are made by the organisation.
2 Number of coassistances : The number of co-assistances from 2004 to date is given as follows:  Child Protection Network in 10 villages in 3 districts (Patrol, Anjatan, and Bongas) takes 200 persons  Introducing safe trafficking and migrating in 15 districts for secondary school and high school children.
This was addressed to 32,800 persons  Giving information on children’s rights, reinforcing children in a family, reinforcing children and families.
This was addressed to 465 persons  Giving information on reproduction health and HIV-AIDS to secondary school and high school students.
This was addressed to 9,099 persons.
 Counselling and reference for HIV-AIDS sufferers, addressed to 70 persons.
 Forming cadres, prevention of trafficking and health reproduction in 15 districts addressed to 770 persons  Preventing vulnerable children from trafficking through open secondary school that has educated 14 generations consisting of 465 persons.
 Repatriating human trafficking victims and conducting reintegration.
This was addressed to 326 persons.
Rehabilitation program was achieved through the following stages: 1.
Post assessment that was conducted in Bugis village on the 16th of March 2015 took place in Mrs Darsinah’s place involving 11 participants, 6 females and 5 males including adults and children.
Post assessment was carried out by means of PGD to find out the figure for kids dropping out of primary school, caused by economic factors, things that forced them to work or get married, discrimination against children, or the state where children were left by their parents to work overseas or left due to divorce, or the state where children were forced to live with their grandmother; 2.
Workshop held in Bongas village consisted of 20 children as participants on the 19th of November 2015 from two districts, seven villages involving the district of Bongas, 5 villages and two villages from the district of Anjatan.
3.
Children participation was urged to support children at school.
This support was given by helping students with funding for their kejar paket C, or by supplying them with stationery 4.
Reintegration of the victims was performed, involving picking up and monitoring the three victims of trafficking.
This measure urged Fitri Wati to join kejar paket C, Koliah to join open secondary school, and Susi Susanti to join vocational school, where she decided to join Al Huda Vocational School but then she dropped it and moved to kejar paket C. IV.
CONCLUSION Based on the details and discussion above, this research concludes that frequent trafficking in Bongas, Indramayu is triggered Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective | 145 by poor education, economic hurdles, and social and cultural factor that was indicated by the practice of ‘luruh duit’.
Furthermore, handling the victims of trafficking in Bongas, Indramayu involves three stages namely first, the identification is performed to find out people or victims exploited in trafficking.
Second, rehabilitation is provided as a measure to bring recovery to the victims of trafficking.
The time it takes for rehabilitation depends on the condition of the victims.
When someone is identified as a trafficking victim, he/she should be sheltered in a safe accommodation or in a house to support the process that follows.
If needed, the victim with critical condition can be hospitalised and he/she may not be discharged until he/she gains full recovery.
Third, reintegration is intended to help the victims of trafficking to be accepted back in their families and societies.
REFERENCES Books Atmasasmita, Romli, Masalah Tuntutan terhadap Korban Tindak Pidana, (Jakarta: Badan Pimpinan Hukum Nasional Departemen Kehakiman RI, 1991) Mansyur, Didik M. Arief & Elisatris Gultom, Urgensi Perlindungan Korban Kejahatan: Antara Norma dan Realita, (Jakarta: PT.
RajaGrafindo Persada, 2008) Mulyadi, Lilik, Kapita Selekta Hukum Pidana, Kriminologi dan Viktimologi, (Jambatan, Jakarta, 2007) Nitibaskara, Tubagus Ronni, Catatan Kriminalitas, (Jayabaya Univercity Press, 1999) Sahetapy, J.E., Victimologi: Sebuah Bunga Rampai, (Jakarta: Sinar Harapan, 1987) Journals Astuti, Rima, ‘Hubungan Kesadaran Akan Kerentanan Diri dan Mekanisme Coping Pada Perempuan Pekerja Malam di Tempat Hiburan Karaoke di Wilayah Jakarta Barat’, (2011) 7(11) Jurnal Kriminologi Indonesia Daniel, Everd Scor Rider, Nandang Mulyana, and Budhi Wibawa, ‘Human Trafficking di Nusa Tenggara Timur’, (2016) 7(1) Jurnal Social Work Hanim, Lathifah and Adityo Putro Prakoso, ‘Perlindungan Hukum Terhadap Korban Kejahatan Perdagangan Orang (Studi Tentang Implementasi Undangundang Nomor 21 Tahun 2007)’, (2015) 2(2) Jurnal Pembaharuan Hukum Killing, Indra Yohanes and Beatriks Novianti Killing-Bunga, ‘Motif, Dampak Psikologis, Dan Dukungan Pada Korban Perdagangan Manusia Di Nusa Tenggara Timur’ (2014) 10(10) Jurnal Psikologi Ulayat Purnama, Chandra, Windy Dermawan, Emil Mahyudin, ‘Sosialisasi Mengenai Perdagangan Manusia (Human Trafficking) Dalam Upaya Pencegahan Tindak Pidana Perdagangan Orang (TPPO)’, (2018) 1(2) Jurnal Kumawula Satriani, Rizka Ari, Tamsil, Muis, ‘Studi Tentang Perdagangan Manusia (Human Trafficking) Pada Remaja Putri Jenjang Sekolah Menengah di Kota Surabaya’, (2013) 4(1) Jurnal BK UNESA Soraya, Anis, ‘Binahayati Rusyidi dan Maulana Irfan, ‘Perlindungan Terhadap Anak dan Korban Trafficking’’, (2017) 2(1) Prosiding KS.
Riset, PKM.
Zaman, Q., ‘Sanksi Pidana Perdagangan Perempuan (Women Trafficking) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 146 | Hamja, Sulistio Modus of Girls Trafficking in Bongas Indramayu: Victimology Perspective (Studi Komparatif Antara Undangundang Nomor 21 Tahun 2007 Tentang Pemberantasan Tindak Pidana Perdagangan Orang dan Hukum Islam’, Raheema, (2017) 2(3) Jurnal Studi Gender dan Anak.
DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.01.02 | 27 Institutional Policy in Land Procurement Under The Omnibus Law Regime Imam Koeswahyonoa, Hikmatul Ulab aFaculty of Law, Universitas Brawijaya, Email: imam.koes@ub.ac.id bFaculty of Law, Universitas Brawijaya Email: hikmah_ula@ub.ac.id Submitted : 2020-03-06 | Accepted : 2020-04-23 Abstract: The legal culture procedure with socio-legal analysis will be able to answer the fundamental questions in the problems of practices of land procurement for public interests, in particular the issue of compensation.
The crucial issue of compensation within the implementation of the policy of land procurement regards the non-equivalence of land value, both utility value and economic value of structures and landscapes, to the monetary compensation.
The use of the legal culture approach is to provide answers and implement them to resolve issues of land procurement for public interests in the omnibus law regime to maintain justice to landowners and preserve the environment.
The correlation of the cultural approach and activities of land procurement is that culture refers to the target of the national conscience, and the cultural approach based on the growth mindset will result in wisdom and nobility of the decisions of public officials to prioritize the people rather than interests of investment.
The government must choose to renegotiate the policy of enacting the Law of Employment Creation, which is judged by the greater public to conflict with the spirit and mandate of the Preamble and contents of the 1945 Constitution.
It needs renegotiation between the state and people by discussing in-depth the legal substance of the law is not performed, and then the law in question must have its enactment firmly rejected.
Keywords: land procurement; legal culture; omnibus law I.
INTRODUCTION One of the products of legislation that need to enact during the Second United Indonesia Cabinet is Law No.
2 of the Year 2012 on Land Procurement for Development, which has generated support and opposition 1 Confer the article by the author from a totally renewed article published in the “Majalah Arena Hukum” of the Faculty of Law, Brawijaya University, No.
8 Year 4 July 2011 p. 115 – 124 and Jurnal Hukum dan Pembangunan, Faculty of among people in society.
Certainly, of the several supporting and opposing opinions generated by various elements of society possess differing bases of reason, argumentation, and viewpoints.1 Law University of Indonesia.
Acknowledment I must thank the reviewer who shared their constructive and contributed their awesome knowledge.
Also thanks to Airin, Dyah Pawestri, Yolanda and Bastiko Pradana who translated Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 28 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime One of the opposing opinions that have expressed at the time the law was discussed at the National People’s Representative Council was by Idham Arsyad, who in brief stated that the discussion of the law as a bill should have delayed until structuring of agrarian affairs performed by inciting the execution of agrarian reforms.2 Before this, the daily newspaper “Kompas” also reported that the land procurement law is a threat to land rights because it is prone to be misused for business interests that instead hinder public access to development, and thus it is considered to not support public interests.3 The essence of this article is not to discuss why there is a debate that occurs regarding differences of views among stakeholders but to discuss the philosophy, theories, and consequences of the institutional policy in land procurement for public interests, assuredly from a legal standpoint or perspective.
Why is there a specific urgency for the discussion regarding the analysis of the subject?
The reason of the author is because in general, articles that discuss land procurement for public interests are seen as one of the causes of conflicts over land resources, including the actors who are involved, the legal actions initiated by the actors, the resulting unfavorable effects of those legal actions on other parties, and the efforts that are taken by parties whose land resource assets are affected by activities of development for public interests to struggle to regain their rights.
The materials for this article approach the problem of land procurement for public interests from a different perspective by asking, “Why is it necessary to have an institutional policy in land procurement?” This formulated question becomes the trigger for discussion through the formulation of the problem.
perfectly, I could not have written it better without them.
2 Idham Arsyad, ‘Sesat Pikir RUU Pengadaan Tanah’ [Misguided Views of the Land Procurement Bill], Kompas, (Friday, March 18, 2011), 6.
3 Editorial, ‘Ancaman Hak Atas Tanah’ [Threat to Land Rights], Kompas, (Friday, March 11, 2011) 4.
II.
LEGAL MATERIALS AND METHOD This research paper uses the judicialnormative research method to answer the legal problems.
Relevant regulation or law regarding the land procurement and omnibus law will be analyzed.
Moreover, the paper also uses the conceptual approach to solve the problem from philosophy, theories, and consequence of the institutional policy in the land procurement for society interest.
It also uses legal culture approach to found the best strategic that must be carried out by the government to resolve the issues of the application of an institutional policy in land procurement for public interest in the omnibus law regime.
III.
RESULT AND DISCUSSIONS Land Procurement for Public Interests in the Perspectives of Legal Concept and Philosophy a.
Legal Concept Before approaching analysis by legal philosophy, it is necessary to equalize perceptions on the actual concept of land procurement for public interests.
In general, it could say that land procurement is a method or effort to obtain or possess the land for specific interests or aims.
Meanwhile, public interests are often contrasted with individual or personal interests or pitted against non-public interests.
The linguistic meaning of “public interests” is the requirements and obligations of many people and society.
4 As such, it could understand that public interests are the effort of the fulfillment of needs with the intent to serve the society or a group of people.5 4 Tim Prima Pena, n.d., Kamus Lengkap Bahasa Indonesia [Complete Dictionary of the Indonesian Language], (First Printing, Gita Media Press, n.p.
), 507 and 663.
5 Based on data from the Coordinating Ministry for the Economy of the Republic of Indonesia and the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency, land procurement activities up to December 2019 for strategic national projects have resulted in more Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 29 b.
Legal Philosophy The question on the legal philosophy perspective on how land for people has positioned as the subject of a right leads to the problem of utility or usefulness.
The concept of utilitarianism in the legal field of discipline belongs to classical positivism, which in general has often put in opposition to classical naturalism, for which Hilaire McCoubrey and Nigel D. White say its supporters “treat law as a prescription deriving its ultimate authority from a ‘purpose’ morality, by reference to which its ‘law’ quality may be judged.”6 Meanwhile, positivist theories of law have defined as “these which concentrate upon a description of law as it is in a given time and place, by reference to formal, rather than to moralethical, criteria of identification”.
7 In the legal field of discipline, the concept of utility was put forward and developed by Jeremy Bentham (1784-1832), which then was critiqued by John Austin, who called it the principle of utility; the essence of utilitarianism according to Jeremy Bentham is “the happiness of the individuals, of whom a community is composed, that is their pleasure and their security, is the end and sole end which the legislator ought to have in view.”8 A similar opinion regarding what is meant by utilitarianism was presented by Davies and Holdcroft: than 38,000 hectares.
Construction of 60 toll roads with an area of 16,582 hectares, two Special Economic Zone projects with an area of 8,183 hectares, twelve (technical) irrigation projects with an area of 768.02 hectares, and 16 railroad networks with an area of 728.6 hectares will become more facilitated to ease the progress of the projects with the Law of Employment Creation, and yet the projects threaten efforts of conserving the natural resources of forests, beaches or coastal areas, conservation areas, and protected areas.
Refer to the Presentation of the Report by the Coordinating Ministry for the Economy and the Ministry of Agrarian Affairs and Spatial Planning, published at www.atrbpn.go.id, accessed on February 20, 2020.
It is possible that in a process that occurs with a specified target length of time, because the emphasis of the legal politics of the Law of Employment Creation is to ease or at its extreme to erase permits that are seen by investors to impede investment, the government as a public “Utilitarianism is a goal-based theory that evaluates actions in terms of their propensity to maximize goodness, however, this is defined.
Hence, it takes the view that our conception of what is right depends on our conception of what is good since the right action is defined as one which produces more good than any alternative.
So that only if a person has a conception of what is good can he or she have one what is right.9” As an affirmation for understanding what is utilitarianism and how it has realized according to Davies and Holdcroft, Murphy and Nagel stated that: “Utilitarianism takes the happiness or welfare of individuals as the basic currency of moral evaluation and assesses outcomes by subtracting the overall costs from the overall benefits, measured in these terms.
Utilitarianism holds that one should try to maximize the total happiness of the members of a society in designing its policies and institutions.
… It doesn’t mean that each official act should aim at increasing the general welfare, since some of the most useful institutions for promoting the general welfare such as property rights and the legal system depend on adhering organization and private organizations commit corruption of permits due to the malfunction of good corporate governance and weak state institution, thus resulting in “State Capture”.
Refer to Hariadi Kartodihardjo and Sudarsono Soedomo, ‘Area Regime and the Politics of Its Usage Reallocation: A Historical, Management, Institutional, and Bureaucratic Overview’ [Rezim Kawasan dan Politik Realokasi Penggunaannya: Tinjauan Historis, Tatakelola, Institusi dan Birokrasi], (paper for the National Symposium of Agrarian Reform Implies Forestry Reform, organized by IPB, ForciDeV dan FOReTIKA, Jakarta, 2020) 16-18.
6 Hilaire McCoubrey, Nigel D White, Textbook on Jurisprudence, (Blackstone Press Limited, Second Edition, Glasgow, 1996), 11.
7 Ibid, 11.
8 Ibid, 29.
9 Ian McLeod, Legal Teory (Palgrave Macmillan, 4th Ed, New York, 2007), 170. http://www.atrbpn.go.id/ Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 30 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime to certain rules, without considering the general welfare in each case.
But the ultimate standard, whether acts, laws, conventions or policies are being evaluated, is the overall effect on people’s happiness or welfare.”10 Referring to the views of James M. Donovan, it has stated that “Such laws seek to maximize the pleasure and minimize the pain of the society, evoking principles that would become familiar under the label of utilitarianism.
Because what causes both pain and pleasure is often rooted in human nature, legitimate laws will reflect the contours of these natural predispositions.”11 As such, it is clear that about utility, there needs to be a spesific criterion, measure, or parameter, not just for individuals but also for society, which Murphy and Nagel call a “metric.” This raises a debate, particularly on the question of whether the benefit of something is subjective or individualistic and how to measure utility to be able to appropriately compare, expand, and see its effects or consequences on different people.
As stated by Raymond Wacks, “The essence of utilitarianism is its consequentialism.
It is important, therefore, to distinguish consequentialists from deontological systems of ethics.
12 Because the essence of utilitarianism is consequentialism, this means that utility has understood as a consequence or result that may very well be separated from something that becomes its cause, for example regarding wrong or right.
Therefore, the view on utility, whether with the normative or moral standard, regards something that is coming because it aims for maximizing happiness, prosperity, or other good objectives.
This has accomplished through the addition of measures or criteria for advantages and disadvantages of individual lives that are different from one 10 Liam Murphy and Thomas Nagel, The Myth of Ownership, (Oxford University Press, First Printing, New York, 2002), 51 confer Francis Wahono, Ekonomi Politik Daulat Rakyat: Pancasila Sebagai Acuan Paradigma, (Buku KOMPAS, 1st Ed, Jakarta, 2020), 3-9. another to obtain the magnitude of a specific value for the evaluation of utility from a particular insight.
Thus, in order to achieve the stated goals of utility: “The happiness of people (eudaimonism) as theorized by Socrates, which are good deeds that lead to joy, is not limited to happiness that is pursued by individuals according to the concepts of David Hume or even Jeremy Bentham, which have an egoistic characteristic and is not in line with values of peoples outside of Europe.
Thus from the standpoint of justice, the interests of other people (the masses) must be prioritized in social life.
Therefore, the measures of good deeds are actions that bring about the greatest good for the greatest number.”13 The concept of utilitarianism, as presented by both Jeremy Bentham and David Hume, was perfected by their follower, John Stuart Mill, about the sharp criticism from John Rawls.
Rawls stated his view regarding the concept of utilitarianism through a detailed example: “And so by reflections, naturally reaches the principle of utility: a society has properly arranged when the institution maximizes the net balance of satisfaction.
Social justice is the principle of rational prudence applied to an aggregative conception of the welfare of the group.
The striking feature of the utilitarian view of justice is that it does not matter, except indirectly, how this sum of satisfactions is distributed among individuals any more than it matters, except indirectly, how one man distributes his satisfactions over time.
11 James M. Donovan, Legal Anthropology, An Introduction (Alta Mira Press, Lanham, UK, 2008), 34.
12 Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, (Online Resource Centre, Oxford University Press, 3rd Ed, New York, 2012), 214.
13 Ibid, 21-22.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 31 The correct distribution, in either case, is that which yields the maximum fulfillment.
Society must allocate its means of satisfaction whatever these are, right and duties, opportunities and privileges, and various form of wealth, to achieve this maximum if it can.”14 Rawls adds that “On this conception of society separate individuals are thought of as so many different lines along which rights and duties are to be assigned and scarce means of satisfaction allocated by rules as so to give the greatest fulfillment of wants.
Utilitarianism does not take seriously the distinction between persons.”15 As a follower of legal realism, according to Rawls, individual freedom cannot be ignored, particularly in the modern era, because with this freedom, people can develop their imagination and creativity, which will bring about benefits for individuals as well as society.
Conversely, for societies that have not been well established or ordered, for the principle of justice to be able to protect all people, the people must return to their original position.
For them to return to their original position, then, according to Rawls, two basic principles must be fulfilled: “First, each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.
Second, social-economic inequalities are to be arranged so that they are both a, reasonably expected to be everyone’s advantages, and b, attached to positions and offices open to all.”16 The philosophical bases that must become the foundation for the Law of Land Procurement for Public Interests, in addition to Law No.
5 of the Year 1960 on basic 14 John Rawls, 1999, A Theory of Justice, (Belknap Press of Harvard University Press, Revised Edition, USA, 1999) 24, 26.
15 Ibid, 27.
16 Ria Mardiana Yusuf and Muh Guntur, Menuju Kepemimpinan Yang Berkeadilan Sosial [Towards Leadership with Social Justice], in Jurnal Keadilan Sosial, First Edition: Antara Keadilan Sosial dan Keadilan Hukum [Between Fundamental of Agrarian, include the Pancasila and specifically the second, fourth, and fifth principles as has been stipulated in the preamble of the Law, Letters a and b.
It should be that the inclusion of the philosophical bases must affirm that the intended development activities are designated for some interests, carried out in a particular manner, and outlined in specific steps.
The five principles of the Pancasila, as stated by Notonagoro (1984), constitute the substance, guidance, and essence of each norm, which in this case is of the legal regulations to formulate.
The same article by Notonagoro also states that: “All legal regulations present in the country of Indonesia since its founding constitute a legal system, the legal system of Indonesia.
In each legal system, there is a hierarchical division of structures.
Each legal regulation that is enacted should be a formulation of the values contained in the five principles of the Pancasila, which should be the qualification of the formulation of the first principle in an arrangement of unity with the other principles.”17 In every legal system, the primary essence is the synchronization and harmonization of legal regulations in a sequence of levels, as formulated by Hans Kelsen and Hans Nawiasky, like an order that is systematic, logical, and rational in the framework of a particular legal system.
When carefully examined, in the preamble there is a stipulation of legal politics as the following: a.
To realize a fair, prosperous, and secure society based on the Pancasila and the 1945 Constitution of the Social Justice and Legal Justice], ILRC and OCI, Jakarta, 2010), 59-60.
17 Notonagoro, Beberapa Hal Mengenai Falsafah Pancasila [Several Matters Regarding the Pancasila Philosophy], (Speech for the First Anniversary of Pancasila University, Djakarta, Eighth Printing, Pantjuran Tudjuh, Djakarta, 1979), 20 and 33.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 32 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime Republic of Indonesia, the government needs to carry out development; b.
To ensure the organization of development for public interests, there needs to be land for which its procurement is carried out in ways that prioritize principles of humanity, democracy, and fairness; c. The legal regulations in the field of land procurement for development for public interests have not been able to ensure the acquisition of land to carry out such development; d. Based on the considerations as stated in Letter a, Letter b, and Letter c, a Law needs to be created on the Procurement of Land for Development for Public Interests.
It may have stated philosophically that Law No.
2 of the Year 2012 has seemingly intended to carry out the mandate contained in the principles of Pancasila concerning the principles of humanity, democracy, and justice, though it is undeniable that the national philosophy has acquired influence from globalization with the neo-capital and liberal ideologies.
Considering the objects of institutions of land procurement, which would be called land resources, particularly for Indonesia as an agrarian country, land resources have a strategic position.
As stated by Mochammad Tauhid, “agrarian affairs (land affairs) are affairs of human living and livelihood, because the land is the origin and source of food.
Affairs of land concern living, as the blood that supports the living bodies of people.
Whoever controls the land, controls food as well.”18 As such, it can understand why land resources in the context of the country of Indonesia have a very high value for their rights subjects, being the only source of 18 Mochammad Tauhid, Masalah Agraria Sebagai Masalah Penghidupan dan Kemakmuran Rakyat Indonesia [Agrarian Affairs as an Issue of Livelihood and Prosperity of Indonesian People], Book One, (Bina Desa Foundation, Fourth Printing, Jakarta, 2011), 3-4.
19 Friedman, Lawrence M, The Legal System: A Social Science Perspective, (New York: Russel sage Foundation, 1977), p. i-ix, 1-5; it is livelihood as well as respect.
This is why given two parties, for which one party requires land and the other party possesses land and the two parties are unable to agree, this will become the beginning of a dispute on land resources (tenurial conflict).
If land resources have seen as a source of livelihood as well as respect, according to the perception of most Indonesian people, whose primary livelihoods are in the field of agriculture, the question becomes how the law as a legal instrument can regulate reasonably and beneficially the relationships of Indonesian people with the land resources.
Therefore, it is only fair that the government on behalf of the state in creating policies as mandated by Article 33 Paragraph (3) of the 1945 Constitution of the Republic of Indonesia with control of rights by the state, must serve the greatest prosperity of all people.
Conversely, government policies that implement control of rights by the state have not designed to increase the prosperity of all people in violation of the constitution.
Land Procurement for Public Interests According to Legal Culture, Legal Politics and Legal Theory a.
Legal Culture Before discussing and offering criticism on what is meant by legal culture, regarding the urgency of conducting a study involving it as well as its relevance to a study on the issue of land procurement, its understanding needs to explain.
In contrast to what had been explained by Lawrence M. Friedmann (1977) regarding legal culture as one of the parameters to measure the legal consciousness of a particular society on a court verdict given for a specific conflict in a one sub-field or branch of legal science such as criminal, civil, or administration law as well as other sub-disciplines of legal science19, “legal culture” can be understood interesting to compare the writings of Friedman with that of Sulistyawati Irianto as in Sulistyawati Irianto, Pendidikan Hukum Untuk Indonesia Masa Depan: Sebuah Catatan Kritis [Legal Education for a Future Indonesia: A Critical Remark], (Scientific Oration, Open Senate Meeting for the 74th Anniversary of the Faculty of Law of Gadjah Mada University, Yogyakarta, 2020) p. 6, which affirms the inevitability that if Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 33 as the viewpoint of a society at a certain period on a specified matter, whether regional, national or global, according to a specific perspective or ideals such as the national philosophy of Pancasila or another philosophy.
As such, the relationship between cultural studies and the discipline of legal science is a branch of humanities that examines how the feelings or desires of people or society regarding the fundamental values of legal certainty, legal utility, and legal justice are manifested and accepted as something that is self-evident and becomes the benchmark in the reality of legal relationships.
In general, the view of the author is that judicial science is a part of cultural education that is understood as an interdisciplinary academic practice or study because many of its analyses borrow theories and or concepts from various fields of disciplines.20 Budiono Kusumohamidjojo stated that the phenomenon of culture is not a phenomenon of nature; it is a very complex phenomenon and an empirical reality, and thus it requires concordance is desired between theoretical law and law in practice, then the same is true between the discipline of law with the social science discipline of humanities through an interdisciplinary approach.
20 Agnes Setyowati, Cultural Studies: Sebuah Pengantar, Teori dan Konsep [Cultural Studies: An Introduction, Theories, and Concepts], (Mitra Wacana Media, Bogor, 2019), 1.
21 Ibid, 3.
22 The matter of disruption refers to the views of Rhenald Kasali, who stated that change drives people to adjust and harmonize mindsets composed of assumptions that are followed by them and are no longer appropriate to new needs.
In simple terms, mindset is a set of assumptions; Carol Dweck of Stanford University, USA, divided mindset into the two kinds of fixed mindset and growth mindset.
Confer Rhenald Kasali, Strawberry Generation, Mengubah Generasi Rapuh Menjadi Tangguh [Strawberry Generation: Changing a Fragile Generation to a Strong Generation], (Rumah Perubahan dan Mizan, Jakarta, 2017), 3; management expert Steven Covey affirmed that one should “begin with the end in mind”, which means that if a person desires success, then the person must possess the integrity to improve and increase confidence, for which Donald Trump considers that success is derived from behaviors and confidence of ability; according to a multidisciplinary understanding.21 Culture will affect the behaviors of people who interact with one another both vertically and horizontally, as influences that are positive such as the creation of a system of consciousness of or compliance to all stipulations of the state, and viewpoints regarding matters that have based on the values of honesty and reasonableness.
Applying the three different elements of culture by Koentjaraningrat, composed of Cipta (thought), karsa (intention), and rasa (feeling), cultural studies are included as the elements of rasa and karsa because it explains logically the will of each individual to control egoistic interests, in upholding values such as piety, honesty, good intent, tolerance.
Within more or less the past two decades, intense changes have occurred in all parts of life in society in all parts of the world with science and technology coming into dominance, resulting in major shifts of occupations, which is a phenomenon known by the term of “disruption”.22 Disruption has Koentjaraningrat, Kebudayaan, Mentalitet dan Pembangunan [Culture, Mentality, and Development], (Gramedia, 3rd Printing, Jakarta, 2016), 50-53, underestimation of quality is understood as a lack of self-respect as well as a lack of (fair and healthy) competition to achieve optimal results from work due to low motivation, and even if there is motivation, the emphasized targets are directed toward pure numerical achievements, without prioritizing the process aspect.
The mentality of taking shortcuts is the attitude of emphasizing results without harmonization with changes or developing situations, an open attitude, or the will to work hard, but expecting optimal results.
An attitude of not being confident in the abilities of the self and a nature of impure discipline is called a fixed mindset; conversely, an attitude of being open to input, suggestions, and criticism that makes a person open to insights, willing to adapt to change, and enjoy improving and increasing their selfqualities is called a growth mindset.
Confer Billy Boen, Young on Top, 30 Rahasia Sukses di Usia Muda [Young on Top: 30 Secrets of Success at a Young Age], (TransMedia, Jakarta, 2009), 50-56 who put forth the term of “open-minded”.
“Openminded” means being mindful of uncertainties in the realm of life, being able to open up the realm of thoughts and creating important decisions no matter what they are, and able to realize in some way ideas or concepts creatively and positively.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 34 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime incited a large-scale revolution wherein the intelligence of human beings is being replaced by artificial intelligence, including in legal professions such as legal consultants, attorneys, and notaries, which are being replaced by various and sophisticated digital applications in the 4.0 or even 5.0 eras.
Regarding activities of land procurement for public interests as regulated in Law No.
2 of the Year 2012 as well as the earlier stipulations of Presidential Decree No.
65 of the Year 2006 above all requires that mutual consensus be present to realize the legal culture of Indonesian society for the validity of legal actions.
The validity of legal actions in agreements as regulated in Article 1320 of the Civil Law Code prioritizes a subjective requirement, which is the capability to act and make agreements.
Article 37 Paragraph (1) of Law No.
2 of the Year 2012 even stipulates that land institutions must conduct deliberations with the parties that hold rights within at most 30 working days after an appraisal or evaluation has been carried out by the team of evaluators to determine the form and/or amount of compensation.
As such, from a cultural perspective, the mainstreaming of cultural elements that are rooted in the Indonesian tradition prioritizes mutual agreement in decision-making for the greatest priorities of the nation.
Through a cultural approach that is based on the mentality of growth mindset, this will generate the wise attitude of the government to not view the issue of land procurement as merely the interests of the government.
This means that the people or landowners are not permitted to reject the decision of the government to surrender the land to investors.
Yet, the added value from activities of land procurement for public interests for the people, particularly the former landowners, is not significantly proven.
Referring to the results of a study by the Corruption Eradication Commission (KPK) from May 2004 to May 2017, 650 cases occurred and 80% of those who commit corruption involves the public sector and private sector In conclusion to what has been presented, the importance of a mindset is as a way for public authority officials to start to change their ways of with the primary modes of extortion, bribery, and kickbacks, which affects the policies of state organizers.23 The enactment of the Law of Employment Creation, as stated in a declaration of views by the Madani Foundation in a press conference on April 15, 2020, will weaken legal regulations on the protection of forests, nature, and the environment; this will cause deforestation, failure to save 3.4 million hectares of forest land in areas of palm oil plantations, the threat of decreasing natural forest coverage in 45 watersheds in West Papua Barat in 2058 by 0%-20%, land conversion of agricultural lands with technical irrigation, and still many other damaging impacts.
b.
Legal Politics The term of “legal politics” in the legal field of discipline still becomes a discourse of debate among experts of both legal science and social science, regarding whether it qualifies as one of the parts of the field of discipline of legal studies or a part of the field of discipline of social science and specifically political science.
This article does not attempt to enter the debate; instead, it focuses on the examination of the true essence of constitutional politics in connection with Law No.
2 of the Year 2012 on Land Procurement for Development for Public Interests by comparing the legal regulations that precede it.
Mahfud MD provides a description that further clarifies what is meant by legal politics as written in his dissertation, which has caused controversy of opinions by referring to Belinfante regarding the place of legal politics within legal science as arranged in a “tree”.
“The tree of legal science consists of the roots of legal science, as the national philosophy and ideology of Indonesia, which is Pancasila.
The stem of the tree of legal science contains the fibers of the tree (or subsystems of society) such as history, politics, economy, culture, and thinking as an effort to pave the way toward success their tasks handling land procurement.
23 Hariadi Kartodihardjo and Sudarsono Soedomo, above n 5, 17-18.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 35 administration.
From here, this leads to studies of legal history, legal politics, legal sociology, and legal culture.
A branch of legal science is positive law, which is differentiated into several main fields such as civil law, criminal law, constitutional law, and state administration law, which then give rise to the branches of legal science.”24 The conclusion from the above-written explanation is that legal politics is a part of the studies of legal science and one of its branches that deals with norms of legal regulations as the objects of study, which through acts of the government along with representative institutions of citizens are revised, changed, replaced with new ones, or maintained to realize the legal objectives of justice and welfare for the whole nation.
Legal politics has very significant importance to explain the facets that belie legal norms, as a guide to what direction ought to be taken through the formation, amendment, and improvement of laws in the future (das sollen).
It is in this framework that if legal politics is a branch or limb of the “tree” of legal science, then the “twigs” of legal science include the regulation of specific aspectual fields, one of which is the aspect of land procurement for development of public interests.
The essence of land procurement for development of public interests is the will of the government on behalf of the state based on the stipulations of legal regulations to obtain land for the needs of activities that qualify as the development of public interests, including by taking land that is possessed by legal subjects, whether individuals or legal entities.
However, in creating policies for the takeover of land, same condition are stipulated by Article 28G Paragraph (1) of the 1945 Constitution: “Each person is entitled to the protection of their selves, family, respect, dignity, and property under their domain, as well as entitled to safety and protection from the threat of fear to do or not 24 Mohammad Mahfud MD, Membangun Politik Hukum, Menegakkan Konstitusi [Constructing do actions that are their rights.” This is echoed by Article 28H Paragraph (4): “each person is entitled to possess personal ownership rights and these personal ownership rights may not be taken over at will by any other person.” Therefore, referring to the understanding of legal politics as explained by Mahfud MD, the essence of legal politics of land procurement for development of public interests is the realization of the will of the government to compose and change legal regulations for the planning, formation of institutions, realization, supervision, and evaluation of policies in this field based on social justice, the greatest utility for all people, and legal certainty.
The understanding of legal regulations for land procurement for the development of public interests is more appropriate when considering the history of the institution in the past, for which Minister of Domestic Affairs Regulation No.
15 of the Year 1975 was the institution for the acquisition of land rights.
The institution for the acquisition of land rights was utilized by the New Order government to obtain or acquire land that has to allocated for activities of development for both the government and private groups.
This objective was indeed in agreement with the ideology developed at that time, which is “development” based on the “trilogy of development” and in particular a dynamic growth of the economy, although by law the minister regulation was in conflict with Law No.
5 of the Year 1960 on the Basic Regulations of Agrarian Affairs, which only recognized two legal institutions that form the basis government policies for land procurement for development of public interests.
Here, the legal institutions are the voluntary ceding of rights to land by its owner as stated in Article 27 Letter a Number 2 and the revocation of rights to land and the objects present on it as established by Article 18 of Law No.
5 of the Year 1960, which states “for public interests, including interests of the nation and the state, as well as the shared interests of the people, rights on Legal Politics, Upholding the Constitution], (Rajawali Pers, 2nd Printing, Jakarta, 2011), 2-3.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 36 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime land may be revoked, by providing proper compensation and according to methods regulated by laws.” Article 18 was then regulated further with Law No.
20 of the Year 1961.
Conflicts of rights due to the execution of this legal institution have continued to be prevalent even though the Minister of Domestic Affairs Regulation was replaced by Presidential Decree No.
55 of the Year 1993 on the Procurement of Land for Conducting Development for Public Interests, which qualifies as the second pattern of land conflict as detailed by Maria SW Sumardjono.
25 In another article, Maria Sumardjono takes the view that it is time that policies for the taking over of land must rely on the principle of democracy and uphold human rights, with consideration of the following: 1.
Land takeover constitutes legal actions that have the consequence of the loss of rights of a person to both physical and non-physical objects, and the temporary or permanent loss of wealth; 2.
The provided compensation must take into account 1) loss of rights over land, buildings, and plants; 2) loss of income and other sources of livelihood; 3) aid to move to another location by providing alternative new locations that have complemented with proper facilities, and 4) aid for the recovery of income to be equivalent to the state before the takeover; 3.
Those who have evicted due to land takeover must be considered in the expanded provision of compensation; 4.
To obtain accurate data on the people who are affected by evictions and the size of compensation, it is necessary to perform a basic and socio-economic survey; 5.
It is necessary to implement an authority that is responsible for the execution of takeover and resettlement; 6.
Methods to achieve mutual agreement must develop; 7.
There needs to be a facility for handling complaints and resolving conflicts that may occur in the process of the land takeover.26 Referring to the guidelines outlined by Maria Sumardjono above, about how the legal politics of legal regulations on land procurement for development of public interests have realized from 2005 to 2012, these descriptions have obtained: Table 1.
Comparison of Legal Politics of Legal Regulations on Land Procurement for Development of Public Interests No.
Presidential Decree No.
55 of Year 1993 Presidential Regulation No.
36 of Year 2005 Presidential Regulation No.
65 of Year 2006 Law No.
2 of Year 2012 Legal Analysis 1.
To facilitate the acquisition of rights to land that is required for activities of development quickly and easily, it is necessary to implement regulations on With the increased development of public interests that require land, its procurement needs to conducted quickly and transparently while still To observe further the principle of respect toward valid rights to land and legal certainty in land procurement for the execution of development of public interests, it has considered To realize a society that is fair, prosperous, and secure based on the Pancasila and the 1945 Constitution, the government needs to carry out development; To ensure the execution of The presidential decree has based on the principle of state philosophy and synchronization of legal regulations, and therefore the presidential decree conflicts with the Pancasila philosophy and the Law on Agrarian Affairs; 25 Maria Sriwulani Sumardjono, Himpunan Kasus Beberapa Masalah Tanah [Compilation of Several Land Issue Cases], (Department of Agrarian Law, Faculty of Law, Gadjah Mada University, First Printing, Yogyakarta, 1982) p. iii; in this first article, Sumardjono found that there are three essential things that trigger conflicts of land procurement: 1) no progression of the process for mutual agreement, 2) small or low amount of compensation that is paid by the government to former land rights subjects, and 3) policies in the form of repressive actions that pressure land rights holders to relinquish immediately their legal relationships to their land.
26 Maria SW Sumardjono, Kebijakan Pertanahan Antara Regulasi dan Implementasi [Land Policies Between Regulation and Implementation], (Buku Kompas, Revised Edition, Jakarta, 2005), 87-91.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 37 the Procurement of Land for Development Interests considering the principle of respect toward valid rights to land necessary to amend Presidential Regulation No.
36 of the Year 2005 on the Procurement of Land for Execution of Development of Public Interests development of public interests, there needs to be land for which its procurement is carried out by prioritizing the principles of humanity, democracy, and fairness Although the two presidential regulations respect the valid rights to land, they do not provide an authentic interpretation of the meaning of “public interests”; The National Land Agency (BPN) has not positioned as the arbitrary institution in the land procurement committee; There is a conflict with the principle of justice in a legal state (rechtsstaat) because it does not provide access to justice for justice seekers (not justifiable) 2.
Great bestuursbevoegd heid Great bestuursbevoegd heid Great bestuursbevoegdhei d Three components of authority (bevoegdheid) are apparent There needs to be a legal explanation that clarifies the three components of authority, which are influence, legal basis, and legal conformity27 c. Legal Theory This article articulates legal theory as a theory that is developed from the concept of law by experts of administrative law, particularly administrative authority (bestuursbevoegdheid) regarding land procurement for development of public interests, which is in line with the three foundations of administrative law of the legal state, democracy, and instrumental character.
28 This matter has considered important because: 1.
The legal state (Rechtsstaat) as the foundation that ensures legal protection of government authority covers the principle of legality of government execution (rechtmatigeheid van bestuur), involving authority, procedure, and substance; 27 Confer Philipus M Hadjon et al., Hukum Administrasi dan Tindak Pidana Korupsi [Administration Law and Crimes of Corruption], Second Printing, (Gadjah Mada University Press, 2nd Printing, Yogyakarta, 2012), 1011; referring to the views of FAM.
Stroink and Henc van Maarseveen, PM Hadjon emphasizes the components of authority as control of behaviors of legal subjects, which are influence from the government, including policy-making officials; legal basis, which must always be able to be indicated; and legal conformity, which means that there are standards of authority, including general standards (for all kinds of authority) and specific standards (for certain kinds of authority).
28 Ibid, 6.
29 Ibid, 6-7.
2.
Democracy is related to the procedure and substance in a government organization, whether for decisionmaking or actual legal actions, based on the principles of the presence of peoplerepresenting agencies, absence of lifelong offices (afzetbaarheid van bestuur), and participation (inspraak); 3.
The instrumental character has the basis of effectiveness (doeltreffenheid) or efficacy, and efficiency (doelmatigheid) or productivity.29 Regarding the formation of a land procurement agency as the institution of the National Land Agency, based on Article 5 Letter f iuncto Articles 23-26 of Presidential Regulation No.
63 of the Year 2013 on the National Land Agency, there is the great expectation that this legal institution must be Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 38 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime able to perform its duties of formulating and executing policies in the field of land procurement for development of public interests as well as establish an authority for land rights with the primary tasks and functions having been established by Article 25 Presidential Regulation No.
63 of the Year 2013, which cover: a. Formulation of technical policies in the field of land procurement; b.
Land evaluation, land consolidation, land regulation, and establishment of land authority; c. Execution of land evaluation and land consolidation management; d. Technical development for Land Evaluators; e. Execution of land procurement for development of public interests; f. Execution of guidance and development for land procurement for development of public interests; g. Regulation and establishment of rights to land authority for public interests and land authority; and execution of other duties assigned by the Chief.
In line with this, and about Presidential Regulation No.
71 of the Year 2012 on the Organization of Land Procurement for Development for Public Interests, the regulatory politics of this presidential regulation is for the execution of the stipulation of Article 53 Paragraph (3) and Article 59 of Law No.
2 of the Year 2012 on Land Procurement for Development for Public Interests, for which the establishment of a Presidential Regulation on the Execution of Land Procurement for Development for Public Interests is required, and has the legal consequences of concordance and harmony in legal concept and theory with: 1.
The national philosophy of Pancasila, 1945 Constitution, and Law No.
5 of the Year 1960; 2.
The three bases of administrative law, which are the legal state, democracy, and instrumental character as a policy that is public; and 30 Sulistyawati Irianto, above n. 19, 8.
3.
Principles of democracy and upholding human rights.
The explanation above serves as a contribution for the institution of the National Land Agency, which possesses the mandate to execute government policies in the field of land, for the execution of the policy whether at present or in the future to be able to be carried out as well as possible, to eliminate conflicts by upholding the principles of justice, legal certainty, and utility.
The Challenge and Strategic Strategy to Resolve the Issues in The Application of institutional Policy in land Procurement for Public Interest in The Omnibus Law Regime.
a.
The challenges of using the approach of legal culture in activities of land procurement for public interests in the omnibus law era.
There are certainly several questions that come forward: how can modern law, which is capitalistic-liberal coexist, harmoniously with adat (customary) legal systems with their local wisdom and oral traditions?30 What is the future of adat lands, which are regulated in the adat legal culture and have existed before the establishment of the Indonesian state, and are being repressed by national law containing the creed of a democratic legal state that facilitates both domestic and foreign investors through the omnibus law (formulated as the proposed law on the creation of employment) to be able to take over adat lands with the pretext of public interests?
It is not easy to answer the above questions with logical argumentations that have based on the interests of society, particularly for people who are disadvantaged or marginalized.
Thus, the efforts to answer the aforementioned questions accordingly are conducted by these philosophical bases: a.
Legal politics, material law, and formal law must refer to the values contained in the principles of Pancasila; Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 39 b.
Legal politics ought to be translated into legal practice containing the substance of articles that reflect concrete formulations of the essential or fundamental values of the principles of Pancasila; c. The government must consider with the “emic” approach that according to the standpoint of the people as landowners in an agrarian country such as Indonesia, the land is the most valuable asset and concerns the selfrespect of people and their society.
Therefore, the land along with the objects that lie on top of it, cannot simply be regarded merely as stationary objects that possess economic value and utility value.
Henry Bernstein posed four fundamental questions that must be answered by the state: first, who has what (the ownership structure of agrarian resources, including land); second, who does what (occupational relations linked with agrarian resources); third, who gets what (production of added value from the production process of agrarian resources); and fourth, what has done with these values (appropriation and accumulation of added value from agrarian or land resources).
31 Land that has a history that is in line with the history of its subject must be regarded as having a very close relationship with the culture where the land is located and its rights subjects, which are inseparable from the characteristics of religio magis, prima ad facie, and free and prior informed consent.
This matter is implied by Article 5 of Law No.
5 of the Year 1960 that land or agrarian law in Indonesia has based on adat law.32 As such, the government in the name of 31 Henry Bernstein, Class Dynamics of Agrarian Change (Hallifax: Fernwood, 2010) Chapter 2; Iqra Anugrah, ‘Persoalan Agraria dan Demokrasi di Indonesia’ [Agrarian Affairs and Democracy in Indonesia], (2019) 38(3) Jurnal Prisma, 5.
32 The Adat law stated in Article 5 of the Law of Agrarian Affairs refers to Adat law that has been the state as the possessor of the popular sovereignty mandate, when in need of land for public interests based on Article 1 of Law No.
2 of the Year 2012, should execute the policy by accommodating the following: 1.
Permission should be asked first to members of adat societies or communities regarding whether they are willing to cede their land as a form of nationalism to the government with compensation given, which has always understood to be merely in the form of money.
Yet when examining the articles of Law No.
12 of the Year 2012, compensation other than money may be in the form of replacement lands, relocation, or additional stocks; 2.
The perspectives in the regulations of land procurement for public interests are still narrow; they only regard land as being for parties who possess the protection of access, while adat people or societies that have initially claimed and stated their village adat lands are not rights subjects who possess inherent rights (rights that have existed innately from birth).
The reinforcement of rights only occurred with Constitutional Court Verdict No.
35/PUU-X/of the Year 2012, May 16th, 2013 for, which the implementation still requires execution and reinforcement.
3.
Referring to Article 36 of Law No.
2 of the Year 2012, the provision of compensation involves 1) plots of land, 2) buildings or other permanent structures that stand on the plots of land, and/or 3) plants that are embedded on the soil, both filtered or cleaned to remove faults or defects that are not in harmony with the essence of Pancasila principles as well the populistic character of Indonesia, which is pluralistic-religious, prioritizes harmony, maintains unity, and rejects disintegration.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 40 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime short-lived and long-lived, that are affected by land procurement, which can be compensated by the government in the form of a) money, b) replacement land, c) resettlement, d) land ownership, or e) other forms agreed upon by the two parties.
The mindset or thought pattern of legal culture adopted by the government, particularly as the party that requires land for public interests, involves money.
In reviewing various cases land procurement for public interests, none of these attempt to apply the breakthrough process that has based on utility and justice to utilize compensation in the form of stock inclusion based on the results of calculations performed by independent appraisers on land plots, structural objects, and or permanent objects and plants present on the land.
Conversion of the values of objects in this way must utilize a benchmark value that is the most beneficial for subjects who formerly held rights over their land.
It should not be that the calculations for the inclusion of stocks are instead made regarding the party that requires land.
Therefore, in the context of legal culture, there need to be actual efforts to change the mindset of the government, Ministry of Agrarian Affairs and Spatial Planning, and other related ministries such as the Ministry of Public Works and Public Housing as well as the Ministry of Forestry and Environment to replace the scheme of compensation that ensures that landowners will experience losses.
In contrast, parties who formerly held rights over land must position as the party that must gain benefits from the planned development activities for public interests.
The conclusion that can be gained from the above is that, in correlation 33 Refer to Aditya Wicaksono et al., Meretas Kembali Jalan Panjang Pertanahan di Indonesia [Re-Exposing the Long History of Land Affairs in Indonesia], (Center of Research and Development of the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency, Jakarta, 2014) 67-82, which does not address the legal affairs of land procurement policy practices that cause the marginalization of poor people and farmers, land conversion, changes to functions of forest areas, and relevance to the issue of land procurement for public interests with an omnibus law, it can be stated that the Law of Employment Creation has intended to replace and or revoke several stipulations of legal regulations to be collected and organized thematically to improve the achievement of the government aim of increasing investment.
Land procurement for interests of development entails that the ease in dealing with land affairs will be improved, which means that the process will further facilitate interests of investment and is expected to expand employment opportunities.
However, before the enactment of the Law of Employment Creation, the implementation practices of land procurement for public interests have resulted in conflicts and even disputes, not only diametrically but structurally, which have not been able to be resolved fairly.33 Seen from a cultural perspective, this indicates the presence of a national character that reflects a culture of “taking shortcuts”, which prioritizes more on results than the activity itself as a process that always upholds corrective justice.
b.
The best strategy to resolve the issues in the application of institutional policies of land procurement.
The best strategy that must be carried out by the government to resolve the issues in the application of institutional policies of land procurement for public interests.
must consider the current omnibus law era.
“Omnibus law” includes the word “omnibus” (from Latin) and is defined as an allencompassing law, which means a proposed law (bill) that contains more than one or several legal materials that have made into a and so on.
Compare with the report by the Ministry of National Development Planning/National Development Planning Agency, White Paper for the Policy of National Land Management, (Ministry of National Development Planning/National Development Planning Agency, 2013), 6-14, which also does not address the legal issue of conflicts of land procurement for public interests as a central issue.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime | 41 single law.34 As a comparison, the practice of omnibus law application in Canada according to Louis Massicotte refers to the vies of O Brien and Bosc (2009): “an omnibus bill seeks to amend, repeal or enact several Acts, and has characterized by the fact that it has several related but separate ‘initiatives’… [Which] is an improvement over the previous edition.”35 According to Adam M Dodek, in reviewing the budgeting system for the creation of a new law through the simplification several existing legal regulations with certain aims, there needs to be a breakthrough from related ministers to provide budget items and an agreement with parliamentary representatives to regulate matters that have not been regulated by the inclusion of articles from related legal regulations to achieve legal utility, justice, and legal certainty.
36 About the context of Indonesia and the correlation with activities of land procurement for public interests as regulated in Articles 1 and 2 as well as Article 33 Letter f of Law No.
2 of the Year 2012, which will be affected by the enactment of the Law of Employment Creation (the Indonesian omnibus law), the most appropriate strategy to be applied in the 34 Maria Farida Indrati, Omnibus Law, Undangundang Sapu Jagat?
[Omnibus Law: A Law of Everything?
], Kompas, (January 4, 2020), 6; as a legal umbrella (raamwet/basiswet/moederwet), according to Maria Farida, it is understood as a new law that contains or regulates various kinds of legal substances and various legal subjects as an effort of simplification of various legal regulations that still apply (ius constitutum).
An overview of its substance/content showed that it accommodates Article 10 Letter e of Law No.
12 of Year 2011 on the Formation of Legal Regulations with the aim of fulfilling the need for law in society.
The critical question surely becomes, which society?
It may need to deal with the society of those who own capital or in the elite group, or the society of people in unfavorable positions that first need to be corrected by the government to make their positions equal to that of the elite group as those who control access.
The objectives of enacting the Law of Employment Creation (the omnibus law) are first, to resolve conflicts in legal regulations; second, to make the process of applying for permits more integrated, effective, and efficient; third, to augment relationships of coordination among institutions; regulating policy of the omnibus law has met fierce opposition from both scholars and grassroots activists.
The middle path of legal politics, according to Bambang Kesowo, which is understood to contain political policies and the goals to be realized regarding all issues related to investment or for the simple goal of providing a direction for the principles of authority and simplification of permits for the ease of doing business in all fronts, is for the sake of employment creation.
The other option is to implement change, removal, or repealing of certain laws that are perceived to hinder investment, which has then executed into amendments of certain laws.37 However, what becomes inevitable is that the issue of compensation in activities of land procurement for public interests must involve detailed calculations of the social price of socio-economic changes for the landowner until the landowner receives income from the new possessed assets by preventing the decline of the socio-economic status of the former landowner.
Partiality has needed to the former landowner who is forced to change occupations or to go through a waiting period until the former landowner obtains new agricultural lands that become a new and more promising source of fourth, to make government policies more uniform in three layers; fifth, to cut down the length of bureaucratic processes; and sixth, to ensure legal certainty and legal protection.
The six objectives are certainly seen from a top-down perspective, and not bottom-up.
35 Louis Massicotte, Omnibus Bills in Theory and Practice, (Canadian Parliamentary Review/Spring 2013), 13; according to Massicotte, the case of the omnibus law proposal in Canada concerns the issue of the motive or aim of law formation, for example changing the technique of formation of legal regulations by conducting political lobbying to negotiate or in a way bargain their formation with governmentbacking political parties and opposition political parties, using socio-legal analysis of the behaviors of existing supporters of interests.
36 Adam M. Dodek, ‘Omnibus Bills: Constitutional Constraints and Legislative Liberations’, (2017) 48(1) Ottawa Law Review, 5-6 and 42.
37 Bambang Kesowo, Jalan Tengah Untuk RUU Cipta Kerja [A Middle Path for the Proposed Law on Employment Creation], Kompas, (March 6, 2020), 6.
Brawijaya Law Journal Vol.7 No.1 (2020) Contitutional Issues: Economic, Social and Cultural Rights 42 | Koeswahyono, Ula Institutional Policy in Land Procurement Under The Omnibus Law Regime living for the former landowner and the associated family.
IV.
CONCLUSION In brief, the correlation of the cultural approach and activities of land procurement is that culture refers to the target of the national conscience, and thus the cultural approach based on the growth mindset will result in wisdom and nobility of the decisions of public officials to prioritize the people rather than interests of investment.
Fostering a conscience that will ultimately be reflected outward as the guide of the behaviors of those in charge, particularly public officials in making decisions of land procurement, is not an easy matter.
The main pillar of all conscience that displays noble behaviors is the Pancasila.
The difficulty in using the legal culture approach in activities of land procurement for public interests in the omnibus law era may be responded to by finding how modern capitalistic-liberal law can coexist harmoniously with the adat legal system with its local wisdom and oral tradition through a legal culture approach that has aligned with local wisdom values based on an interdisciplinary approach.
The best strategy that must be carried out by the government to overcome difficulties in the application of institutional policies in land procurement for public interests in the omnibus law era includes political policies and the goals to be realized regarding all problems that are related to investment or the simple objective of providing a direction for the principles of authority and simplification of permits for the ease of doing business in all fronts for the sake of employment creation.
The other option is to change, remove, or repeal certain laws, which has then executed into amendments of certain laws that are perceived to hinder investment.
The government needs to be firm in rejecting the conditions that are requested by investors, as major corporations, to commit denial of the harmony in legal politics and the substance of the employment creation law, including the law of land procurement for public interests with the values from the Pancasila and the constitution.
Dialogs need to be carried out more broadly and intensively to involve people from all levels of society to allow them to provide opinions openly and freely for the substance of an employment creation law that is juster.
The government must choose to renegotiate the policy of enacting the Law of Employment Creation, which is judged by the greater public to conflict with the spirit and mandate of the Preamble and contents of the 1945 Constitution.
If this renegotiation between the state and people by discussing in-depth the legal substance of the law is not performed, then the law in question must have its enactment firmly rejected.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.08 | 255 Quo Vadis Legal Protection for Children Recruited as Child Soldiers in Areas of Armed Conflict in the Context of International Law Herman Suryokumoroa, Ikaningtyasb, M. Muafic aFaculty of Law Brawijaya University, Indonesia Email: hermans-fh@ub.ac.id bFaculty of Law Brawijaya University, Indonesia Email: ninktyas@ub.ac.id cDepartement of Sociology, London School of Economics and Political Science, United Kingdom Email: muafimochamad@gmail.com Submitted : 2020-07-23 | Accepted : 2020-09-25 Abstract: The objective of this research is to analyze legal protection of children who become child soldiers in areas experiencing armed conflict.
Various international legal instruments that regulate the prevention, protection, and even enforcement for violators of certain international legal instruments on the recruitment of children as child soldiers have actually not been able to reduce the number of children who become victims in armed conflict, particularly those who are directly involved as child soldiers.
This is because normatively, there are still some problems on the uniformity of definition of children age as well as the classic problem of the binding power of all related international legal instruments, being whether or not they create compulsory obligation.
Legal protection for children who are recruited as child soldiers must be implemented because in the perspective of human rights, the right of children to live safely and comfortably for their proper growth and development is a fundamental right that must be complied by all states (ius cogens).
If a state does not grant protection, and even allows children to be directly involved in armed conflict, then international legal sanctions may be imposed.
Keywords: Children protection, child soldiers, armed conflict I.
INTRODUCTION Armed conflict or war is often chosen by states around the world as the last resort to resolve a long-standing dispute or conflict between one state and another, or an internal conflict within that state.
For world leaders, armed conflict may become a tool in an ideological battle, but for civilians and children, an armed conflict is considered analogous to a horrible, extended, and neverending nightmare.
War often leaves behind traumatic scars and psychological suffering that are far more torturous than physical injury or a disability.
Armed conflict often occurs in a cruel manner and has no regard for humanitarian aspects.
mailto:muafimochamad@gmail.com Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 256 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited..
There are several parties that may become subjects to an armed conflict, among which are combatants.
Combatants are the parties that are actively involved and participate in conflict, who as such become the target of attacks and may kill and be killed, but if captured will be treated as prisoners of war.
1 Among residents or civilians in a region where armed conflict occurs, there are groups of children who often become victims in that conflict.
Children often experience the adverse effects of war or armed conflict.
Children are extremely vulnerable and their development much depends on their surrounding environment.
Armed conflict may have negative impacts on the development of children; in contrast, children should be able and allowed to develop properly, accompanied by love, affection, activeness, and major expectations for their future.
However, in armed conflict children suffer different ways than an adult, it is because that child has physically weaker and their mentality not in the same level as adult.
Consequently, their physical, mental and psychosocial development will suffer from the armed conflict condition.2 A different reality occurs for children who live in areas of armed conflict.
Their childhoods are spent in harsh and grave conditions that, in contrast, should not be experienced by them.
These conditions are 1 Nils, Melzer, International Humanitarian Law: A Comprehensive Introduction, (Geneva: ICRC 2019) p.81-85 2 George Graham, Mariam Kirollos, (Report writer), Stop The War on Children, (Germany: VierCprint+mediafabrik, 2019) p.22 3 Benekdita, Miranti, UNICEF: 2010-2019 Jadi Dekade Mematikan Bagi Anak Daerah Konflik [UNICEF: 2010-2019 Becomes the Most Deadly Decade for Children in Areas of Conflict], https://www.liputan6.com/global/read/4145033/u nicef-2010-2019-jadi-dekade-mematikan-bagianak-daerah-konflik, accessed on April 10, 2020. triggered by the struggle and violence that occur in the situation.
Often, children become victims of social discrimination, aggression, evacuation, violence, and exploitation from activities in war.
UNICEF had documented 170,000 cases of severe violations toward underage children since 2010, including murder, inflicting disability, kidnapping, sexual harassment, and recruitment into armed groups3.
A report by UN Secretary-General António Guterres that was published on Friday, June 28, 2019 stated that the number of deaths and injured victims includes the part of 11,779 severe violations committed toward children in Yemen, which occurred from April 1, 2013 to December 31, 2018.
Other violations involve the recruitment of children as combatants and their arrest because of suspected or full involvement with the parties who are tied to the conflict.4 In several states such as Uganda, Myanmar, Ethiopia, and Guatemala, children are conscripted or enlisted by the state5.
The annual report that has been published by the UN special agency for children has revealed brutalities toward children, in which children are misused as soldiers in war or armed conflict between states.
About 40% of the child soldiers in the world is estimated in Africa continent, however the child soldier still become global phenomenon.
6 In states such as Liberia, a 4 BBC News Indonesia, Serangan terhadap anak di wilayah perang sangat mengejutkan [Attacks on children in war areas are very surprising], https://www.bbc.com/indonesia/majalah42501881, accessed on April 10, 2020.
5 Muhammad Joni, Aspek Hukum Perlindungan Anak Dalam Perspektif Konvensi Hak Anak [Aspects of Child Protection Law in the Perspective of the Convention on the Rights of the Child], (P.T Citra Aditya Bakti, Bandung, 1999), p. 1.
6 Mark A. Drumbl, The Effects of The Lubanga Case on Understanding and Preventing Child https://www.liputan6.com/global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.liputan6.com/global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.liputan6.com/global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.bbc.com/indonesia/majalah-42501881 https://www.bbc.com/indonesia/majalah-42501881 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 257 quarter of the children are involved in armed conflict between factions.
Armed conflict has claimed many child victims in states such as Mozambique, Angola, Afghanistan, Somalia, Sudan, Cambodia, Haiti, and Bosnia7.
More than 300,000 boys and girls under the age of 18 were recruited and perused as government soldiers or rebel soldiers in armed conflict in more than 30 states around the world8.
In large numbers, the children are often recruited in order to have them take part as government soldiers, paramilitary, and infantries, and in various kinds of activities that are usually conducted by armed groups.
Millions of children around the world have even received and been introduced to matters of military and war since they have been in elementary schools or educational institutions that are equivalent to elementary schools.
Further, what becomes the most surprising is that in addition to children from the ages of 15 to 18 years, the youngest children who have become victims of such recruitment are children who are only seven years in age9.
The usage of children in groups of armed militia is considered to be very advantageous by the parties in an armed conflict.
The most perceived advantage is that underage children are considered not to possess logic and act recklessly without prior thinking, and as soldiers are often placed on the front line as shields and they never think about welfare (salary and benefits) – what is important is that they still receive their dietary needs 10 .
Many underage children become soldiers in the front line of an armed Soldering, Yearbook of International Humanitarian Law, Vol.
1, 2012, p.92.
7 Ibid, p. 2.
8 Mungoven, Rory.
Global Report on Child Soldiers Part 1.
Child Soldiers Global Report, 2018, p.10.
9 Ibid., p. 10. conflict.
When many of them become soldiers on the battlefield, other children are recruited to be made and utilized as spies, messengers, guards, minesweepers, (unskilled) laborers, attendants, prostitutes, and workers in other activities that go against the will of their families or surrounding environment.
The usage of children in warfare according to the International Criminal Court is a form of war crime.
This is based on the understanding that children constitute civilians and should not be involved in activities in armed conflict.
UNICEF also stated that “state and non-state entities must commit themselves to stop the recruitment and use of child as soldier or adjuncts to armed group”11.
International humanitarian law also emphasize the protection of human rights for civilians, particularly for underage children.
The issue of child protection itself has been brought up as an important discussion since the end of World War I; child protection was raised after the development of the issue regarding equal rights for women.
A number of related conventions and regulations have been codified, such as the Geneva Convention of 1940, Additional Protocol I of 1977, and Convention on the Rights of the Child of 1989 that has been ratified by 185 states in the world.
There are several conventions and/or resolutions that regulate children in international law, among which is the Convention on the Rights of the Child, and protocols that regulate the rights and obligations of children when war occurs, as 10 Reinhard Hutagaol, Tentara Anak (Child Soldiers).
http://reinhardjambi.wordpress.com.
Accessed on March 18, 2020.
11 UNHCR, Protectiong Children during Armed Conflict, Unichef, 2006 http://reinhardjambi.wordpress.com/2007/12/09/tentara-anak-children-soldier Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 258 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. the Optional Protocol to the Convention on the Rights of Child on the Involvement of Children in Armed Conflict.
In addition, children are one of the subjects that are required to be protected in times of armed conflict, and they are also awarded special protections regulated in the Fourth Geneva Convention of 1949 as well as Additional Protocol I and Additional Protocol II of 1977.12 These international conventions are fundamental for the protection of children who are directly involved in armed conflict.
In Indonesia, there are national regulations that regulate the protection of children who become victims in armed conflict, such as Law No.
59 of Year 1958 on the Ratification of the 1949 Geneva Conventions, Law No.
4 of Year 1979 on Child Welfare, Presidential Decree No.
36 of Year 1990 on the Ratification of the Convention on the Rights of the Child, and Law No.
35 of Year 2014 on the Amendment to Law No.
23 of Year 2002 on Child Protection.
These regulations and laws are guidelines for the state of Indonesia in establishing legal protection of the rights of children and become a reference for the viewpoint of Indonesia according to international regulations that also reject the involvement of children in all activities that are related to armed conflict.
Legal protection for children in situations of armed conflict has the objective to protect children, and it is intended to be able to defend the rights of children as well as their interests.
However, in its reality and execution, international laws that regard child protection has not been able and has not been effective in regarding the issue of child soldiers.
This has also been the result of the existence of international laws that regard 12 Sulaf Abdullah Hama Rashid, ‘International Protection for Victim of Sexual Violance During child protection that need to be tested and developed further and the lack of awareness of the international community (whether individual or party states to the treaties) to be able to get involved and participate voluntarily in upholding the substance of the child protection laws.
The legal norms that are found in regulations and conventions for the legal protection of children rights are very limited when applied to the real situation.
To date, issues regarding children in the world are still regarded as less important, and thus the issues are often cast aside to international discourses.
In addition, the ever-growing ease in circulation of modern weaponry and the ease of use of those weapons contribute to the appearance of child soldiers in areas with armed conflict.
As well, the presence of children who are involved in armed conflict in different states around the world is a presence that becomes an undeniable matter.
The issue regarding child soldiers is now becoming more and more prevalent, and often the discourse regarding child soldiers is not taken seriously by international forums.
Therefore, this study brings up the issue regarding importance of providing legal protection for children who are recruited as child soldiers, by utilizing the method of normative legal research with the statute approach and case approach.
The objective of this study is to analyze whether international instruments regarding legal protection of children has become sufficient to provide protection to children who are recruited as child soldiers.
II.
LEGAL MATERIALS AND METHODS This research is a normative-doctrinal research using a statutory approach.
Armed Conflict’, (2020) 7 Jurnal of Critical Review, p.542 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 259 Approaching legislation is used to review international legal instruments related to legal protection for children recruited as child soldiers in times of armed conflict, namely: the 1949 Geneva Convention and the 1977 additional protocol and the 1989 Convention on the Rights of the Child, Optional Protocol on Involvement of Children in armed Conflict.
These legal instruments were analyzed using interpretation techniques to obtain a comprehensive explanation of the legal protection for child soldiers.
III.
RESULT AND DISCUSSION Factors That Compel the Recruitment of Children as Child Soldiers in Areas of Armed Conflict The utilization of children as soldiers or combatants has started from early on, approximately since the 18th century.
At that time, children often indirectly participated in activities of armed conflict.
At first, the children were only designated as inactive participants or in other words only as the supporters of an armed conflict, but over time, the utility of children in their participation started to shift and diversify, beginning with the activity of recruiting children as cadets or troops who act to aid a war army directly when armed conflict occurs and some of them used by the soldier for “sexual purpose”13.
In current times, underage children are recruited and forced to become rebel groups, separatist fighters, guerilla fighters, fundamentalist groups, “right-wing” actors, and even government-owned armed military.
Involvement of underage children in warfare occurs in almost every country currently engaged in war, and this not only occurs just 13 Çocuklar ve savasin and Saglik etkileri, ‘Children and Health effects of War: Being A War Child’, (2017) 39 (4) Cumhuriyet Medical Journal, p.641 for boys but also for girls.
The number of children who are involved in armed conflict has proven that the protection of rights for children in accordance with what has been written in and regulated by the 1949 Geneva Convention and the 1989 Convention on the Rights of the Child has not been executed well.
The participation of children as child soldiers is caused by several causative factors that then become the reason of their participation in certain groups of armed militia.
Children who are prone to take part as soldiers are children who usually live in conflict areas and in general originate from urban or rural resident communities, but belong to marginalized community groups or are impoverished people.
The participation of children in armed conflict is often as a result of being compelled to do so.
The largest number of children who are recruited as child soldiers are teenage boys; over the course of developments, the recruitment has had a greater tendency to involve girls in greater numbers, and their recruitment has increased in recent years.
In addition to being recruited as soldiers, girls often experience sexual harassment, and they are forced to marry by soldiers of armed militia that they follow14.
There are several reasons why children may become soldiers voluntarily: 1.
Objective features of children’s pre-war and war-related experiences that may be in the form of: a. Militarization of Daily Life b.
Physical and Structural Violence Violence supported by the social structure that is present in the environment where someone lives, for example occurrences of injustice 14 Why children join, http://www.childsoldiers.org/childsoldiers/why-children-join, accessed March 20, 2020. http://www.child-soldiers.org/childsoldiers/why-children-join http://www.child-soldiers.org/childsoldiers/why-children-join Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 260 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. toward certain minority groups.
This experience then leads to the desire to replace the order that is considered wrong.
c. The Better of the Bad Alternatives For residents who have experienced loss of wealth, relatives, and residence, the choice to become a soldier may be the best possibility among the worst ones that are present.
Subjective Appraisal: A Child’s Evolving Capacity to Evaluate and to Decide15 2.
Children cannot yet indicate their own desire; what is recognized as voluntary involvement may be considered to be the result of indoctrination conducted by adults to persuade children to participate in and join armed troops.
The decision is very much affected by the communities or groups where they reside because children do not yet possess high analytical capabilities for everything present in their environments.
Therefore, international law does not permit the utilization of children in various kinds of activities that are related to armed conflict, even if the involvement of the children is on a voluntary basis.
3.
The Influence of Children’s Ecologies a.
Influence of religion or faith that is adhered to, ideology of certain classes or groups, and indoctrination given by adults.
b.
Influence of social or community values that are present where the children live and grow, as well as the learning process and the giving of love and affection by the family.
15 Roos Haer, ‘The Study of Child Soldering: Issues and Consequences for DDR Implementation’ (2016) Third World Quartely, p.5 c. Peer pressure, or the principle that every person is thought to be doing the same thing – “everyone is doing it”.
4.
Development Processes a.
Armed groups do not have much difficulty in recruiting children because they have not reached maturity, and thus they are easily affected and manipulated.
Children can be easily brainwashed in order to possess excessive courage and to form their obedience.
b.
There is the “desire for revenge” because they incurred the loss of their families.
In addition, they have no places for protection and thus obtain these as well as food from armed groups.
c. There is the loss of opportunity to obtain an education.
In a very impoverished situation where schools have been destroyed and teachers are limited in number, children will seek for alternatives for a better life.
d. Children possess the viewpoint that they can be proud of becoming a soldier.
This is in addition to political propaganda that leads to one-sided truths for which defending them becomes a heroic act (by the feeling of helplessness and feeling of vulnerability).
e. Peer pressure from friends and family foster a high sense of solidarity for their groups, which leads to children unconsciously and voluntarily becoming soldiers.
From the factors mentioned above, the most dominant factor that affects the Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 261 participation of children in armed forces is direct influence from the environment 16 where children live and grow, because the situation of the environment where children grow is the place where children obtain a second kind of education after the first kind, the kind they obtain from their families.
Several advantages are very much considered to support the utilization of children as members of armies, which among others are that children are perceived to be cheaper, more easily expendable, more accepting of indoctrination and brainwashing, high in possessed obedience and loyalty, and more inclined to act without much consideration to complete a task (unthinking obedience).
In addition, uneven discrepancies in society and the economy such as poverty, alienation, discrimination, and the partiality of the system – particularly legal systems that are considered imbalanced – have roles in the involvement of children to become child soldiers and enter armed conflicts.
Forms of Recruitment of Child Soldiers The presence of child soldiers in general is inescapable from the recruitment process itself.
The process of recruiting children may occur in two ways17: a.
Forced Recruitment This kind of recruitment, which compels by force, may be conducted by the two parties to an armed conflict.
This forced recruitment utilizes threats and even physical violence to the children to be recruited or to the people (families) closest to the children.
Some states have even implemented a recruitment system with a forced method that has been 16 Enarda Cuni and Juelda Lamce, ‘The Right to Protect Children under International Law: The Case of Child Soldiers’, (2013) 2(8), Academic Journal of Interdisiplinary Studies, p.673.
codified to the National Defense Law of the state.
b.
Coercive or Abusive Recruitment (Recruitment with Psychological Intimidation and Violence) This kind of recruitment involves situations where the recruitment process does not show proof of direct physical threats or intimidation toward the object of recruitment by the combative parties, but the evidence that exists indicates that the recruitment does not indicate the voluntary involvement of the children as child soldiers by one of the parties that recruit them.
This kind of recruitment is commonly utilized by the combative parties, whether the local government or the separatist party, with the intent that the conducted recruitment would not be considered to cause intimidation or violence in any form to the children to be recruited.
International law rejects all forms of recruitment of child soldiers, whether the recruitment is voluntary, by force, or by coercion.
The utilization of underage children as soldiers or troops on the battlefield may be classified as one of the forms of war crimes.
The classification of the utilization of children as a form of war crime is stated in the 1998 Rome Statute of the International Criminal Court Article 8 Paragraph 2 Point b (xxvi), which states that: “Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” In addition, the 1998 Rome Statute of the International Criminal Court also 17 Readings I: ‘International Conflict Studies, Department of Peace and Conflict Research’ (2002) Uppsala University, Sweden.
p. 18-22 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 262 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. contains a statement of regulations regarding the utilization of children in noninternational armed conflict, as found in Article 8 Paragraph 2 Point e (vii), which states: “Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities” Article 8 Paragraph 2 Point e (vii) states that it is prohibited for children under the age of 15 years to be involved as well as to be recruited as members of armed troops by the combatant parties in a noninternational or internal conflict of a state.
If in reality violations were committed of the article, the actions of the party considered to be violating party will be classified as a war crime.
Based on a report from the BBC news office, a case of child recruitment occurred with the forced recruitment method occurred in the Democratic Republic of Congo, when a 13 year-old child was forced by government armed troops to become one of their members.
In front of the child, armed troops of the government shot down an older sibling of the child for rejecting the recruitment to become a member of armed troops of the government.
The incident then left the child feeling frightened and led to the child becoming a member of the armed troops of the government at the age of only 13 18 .
Another example of child soldier recruitment with the coercive or abusive recruitment method occurred in the territory of Afghanistan.
Two generations in Afghanistan live in an environment with a culture of Kalashnikov (a kind of Russian18 DR Congo 'awash' with child soldiers http://news.bbc.co.uk, accessed March 27, 2020.
19 Sonja C. Grover, Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged with Grave Conflict-related International Crimes, (Springer, Heidelberg, 2012), p.1 made AK47 rifle).
They live and develop amongst environments of schools and homes through a method that is very much connected to military equipment (tanks and weapons).
Even several informal schools (madrasah) there became centers of indoctrination and recruitment of young warriors.
The children of schooling age have already been taught methods of war, and yet they should learn about and receive beneficial knowledge in school; instead, they learn about knowledge they should not know at their age, as the knowledge of war.
They use different kinds of weaponry, and they are immediately recruited as fighters to be put on the front line of warfare.
Legal Protection toward Children Who Are Recruited as Child Soldiers Based on International Law The prohibition of the recruitment of children into armed military has fundamentally been regulated in international law, 19 among others being regulated in international humanitarian law and international human rights law that essentially become the foundation of all international law.
The prohibition against using children (under 15) in military operation or hostilities also fundamental protection for older children as well.20 Human rights are a kind of special demands that are strongly promoted by individuals or groups in society overall.
21 Regulations that establish the limits of age of children who are not allowed to become participants in armed conflict are stated in Additional Protocol I of 1977, Convention on 20 Ibid, no 18, p.39 21 Chairul Bariah, Perlindungan Anak Menurut Konvensi Anak-Anak, Legal Protection According to the Child Convention, (USU Repository, Medan, 2006), p. 7. http://news.bbc.co.uk/ Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 263 the Rights of the Child of 1989, and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000.
The material of legal protection of the rights of children in the Convention on the Rights of the Child may be grouped into four categories of child rights22: a.
Survival rights, as the rights found in Articles 6 and 24 of the Convention on the Rights of the Child, which are the rights of children in the convention that cover the rights to preserve and maintain life (the rights of life) and to attain the highest degree of health and healthcare (the right to the highest attainable standards of health and medicine).
b.
Protection rights, which are the rights of children in the convention that cover the rights to protection from discrimination, violence, and abandonment for children who do not possess families, as children who are refugees and victims of armed conflicts.
c. Development rights), which are the rights of children in the convention that cover all forms of education (formal and non-formal) and the right to achieve a proper standard of living for the physical, mental, spiritual, moral, and social development of children.
d. Participation rights, which are the rights of children in the convention that cover the rights of children to be able to state their opinions for anything that affects them (the rights of a child to express her/his views in all matters affecting that child).
Article 4 Paragraph (3) of Additional Protocol II of the Geneva Convention on the 22 UNICEF, Guide to the Convention on the Rights of the Child (CRC), UNICEF, Jakarta, p. 4.
Protection of Victims of Non-International Armed Conflicts states that: “Children shall be provided with the care and aid they require, and in particular: a) They shall receive an education, including religious and moral education, in keeping with the wishes of parents, or in the absence of their parents, of those responsible for their care; b) All appropriate steps shall be taken to facilitate the reunion of families temporarily separated; c) Children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities; d) The special protection provided by this Article to children who have not attained the age of fifteen years shall remain applicable to them if they take a direct part in hostilities despite the provisions of sub-paragraph (c) and are captured; e) Measures shall be taken, if necessary, and whenever possible with the consent of their parents or persons who by law or custom are primarily responsible for their care, to remove children temporarily from the area in which hostilities are taking place to a safer area within the country and ensure that they are accompanied by persons responsible for their safety and wellbeing.” As well, Article 77 Paragraphs (2) and (3) of Additional Protocol I to the Geneva Convention of 1977 on the Protection of Victims in International Armed Conflict states that: a) Article 77 Paragraph 2 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 264 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. “The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces.
In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.” b) Article 77 Paragraph 3 “If, in exceptional cases, despite the provisions of paragraph 2, children who have not attained the age of fifteen years take a direct part in hostilities and fall into the power of an adverse Party, they shall continue to benefit from the special protection accorded by this Article, whether or not they are prisoners of war.” From the two regulations above, it is stated that the age limit of children who cannot be recruited and utilized in armed conflict is 15 years of age.
It also implies that armed group or state armed force have responsibility for not recruit children.23 This is different from the regulations in the Convention on the Rights of the Child of 1989, specifically in Articles 1, 2, and 3 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict of 2000, which state that people who have not reached the age of 18 years cannot participate directly in warfare.
Protection for children, as part of the group of people who are required to be protected, also apply to regions that are 23 Janet Mcknight, ‘Child Soldiers in Africa: A Global Approch to Human Rights Protection, Enforcement and Post-Conflict Reintegration’, occupied by the armed groups of one of the parties in the conflict, when an armed conflict.
There are obligations that are regulated in The Fourth Geneva Convention for the ruling power during periods of occupation, specifically the obligation to protect children who are under 18 years of age to prevent their participation in armed forces by the rule of the currently ruling power.
The protection for these rights of children are regulated in Article 51 of the Fourth Geneva Convention, which states that: “The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces.
No pressure or propaganda which aims at securing voluntary enlistment is permitted.” “The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country.” In addition to the prohibition of utilization of civilians, particularly children who are under 18 years of age, for occupations that are considered improper as well as their recruitment into the armed forces of the currently ruling party in an area of occupation, The Fourth Geneva Convention also protects children who are under 18 years of age from the heaviest form of sanctions, as capital punishment.
Article 68 of the Fourth Geneva Convention forbids (2010) 18(2), African Journal of International and Comparative Law, p.117 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 265 the imposition of capital punishment to someone who is under the age of 18 years if they are considered to violate the stipulations that are created by the rule of the currently ruling party.
Article 68 states that: “The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that, since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.
In any case, the death penalty may not be pronounced against a protected person who was under eighteen years of age at the time of the offence.” Clearly, the Fourth Geneva Convention states that children are a part of civilians who are required to be protected and not be permitted to participate in armed conflict, and there needs to be respect for the human rights of children.
Special treatment for children is intended to consider children naturally vulnerable to the risks they may face from armed conflict situations; this special protection also leads to the age limit for soldier recruitment into the armed forces of the ruling party in an occupied area as well as the renouncement of capital punishment for people under the age of 18 years.
The relationship between international humanitarian law and international human rights law, according to the integrity school of thought, is that international humanitarian law applies only for certain groups and in certain situations, while international human rights law applies for every person in every place at every time.
This means that international humanitarian law applies 24 Muhammad Joni, above n 5, p. 29. during wartime conditions, while international human rights law applies in conditions of peace24.
Based on the stipulations above, it can be concluded that the age limit of children for non-recruitment as members of armed groups and non-participation in armed conflict is 15 years.
This is based on the fact that international humanitarian law is the lex specialis of international human rights law during times of armed conflict, and thus the regulations that apply while armed conflicts occur are those of the Geneva Convention of 1949 with its Additional Protocol.
In addition to being regulated in the stipulations of the Additional Protocol to the Geneva Convention, legal protection of children who are recruited as child soldiers is also regulated in: a. ILO (International Labour Organization) Convention No.
182 Article 3 (a) ILO Convention No.
182: “All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;…” Child soldiers in the convention of the ILO is formulated as one of the worst forms that child labor may take shape.
25 This convention had been adopted by all members of the ILO and is binding for the party states that have signed and ratified it to take any immediate action in the best possible manner to issue prohibitions and eliminate all forms of the worst child labor.
Then, the convention defines children as every person under the 25 Julie McBride, The War Crimes of Child Soldier Recruitment, (T.M.S Asser Press, The Hague, 2014), p.25 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 266 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. age of 18 years and as a part of the definition of the worst forms of child labor.
b.
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict In 2000, the UN General Assembly announced that the members had adopted the Optional Protocol to the Convention on the Rights of the Child.
This protocol comprises stipulations that must be executed and are required to be complied with by the parties that are in conflict when an armed conflict, different from the Convention on the Rights of the Child, which is required to be complied with even if armed conflict does not occur.
This protocol raises the age standard for children who are utilized as child soldiers, which was previously established as 15 years, to 18 years.
Articles 1 and 2 of this protocol state that: a) Article 1 “States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.” b) Article 2 “States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.” From the articles stated above, it is explained that state parties may conduct recruitment of children on a voluntary basis to join as a member of the national armed troops from an age of 16 years.
States that conduct enlistment of children to become soldiers under the age of 18 years are required to consider patterns of safeguarding and protection, which includes permission given by parents or guardians of the children in question, and to be able to show proof of the actual age of the children.
Then, the state of concern is obligated to inform everything about the lives of armed troops who live in army barracks, as well as to inform about their eventual rights and obligations if the children become willing to join armed troops.
This protocol also establishes obligations for non-government armed groups.
This is mentioned in Article 4, which states that: “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” The Convention on the Rights of the Child and the Optional Protocol to the Convention of the Rights of the Child on the Involvement of Children in Armed Conflict do not regulate regarding underage children who have handled weapons, because based on reasoning, it can be understood that if there are no regulating laws, then the converse applies to what has happened in reality.
This also becomes the case for regulations that regard that underage children cannot become combatants, but in reality the situation occurs and there are no regulations – whether constitutional or international – that regard them, and thus what applies is the converse, which is that the status of the underage children has become combatants.
c. Rome Statute of the International Criminal Court The Rome Statute of the International Criminal Court was ratified and adopted by its state parties in July 1998.
This statute defines the prohibition of the utilization of children under the age of 15 years to take part directly in armed conflicts, and the states or armed groups that commit the violation are classified to have committed war crimes.
The courts can take individual action toward Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 267 parties who have committed the act.
However, all this can only apply for, and be conducted toward, states that have ratified the statute.
In this statute, Article 7 Paragraph 1 Point (g) states that: “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” The article clearly states that international law through the Rome Statute of the International Criminal Court also forbids the utilization of children as sex slaves, and if this is violated, then the act will also be classified as a war crime and a crime against humanity.
One of the primary principles of international humanitarian law is the division of residents in a state territory that is experiencing war or is being involved in armed conflict into two categories, as combatants and civilians, and this principle is called the Distinction Principle.
Therefore, the principle is intended to be able recognize the parties involved in armed conflict to find out who may become objects of violence and who are required to be protected because they are not involved in the conflict.
As civilians who do not take part in armed conflict, children obtain protection related to personal respect, family rights, wealth, and religious practice, as expressed in Article 27 of the Fourth Geneva Convention.
Toward children, it is not permitted to commit acts that are forbidden in Articles 27 to 34 of the Fourth Geneva Convention, which comprise: a.
Committing physical and spiritual coercion to obtain details; b.
Committing acts that cause spiritual suffering; c. Imposing collective punishments; d. Committing intimidation, terrorism, and theft; e. Committing acts of retaliation (reprisal); f. Making them hostages; and g. Committing acts that may cause physical suffering or enmity toward protected people.
As people who are vulnerable toward attacks, children are entitled to special protection if an armed conflict occurs.
Special protection toward children as regulated in international law, specifically in the Fourth Geneva Convention and the Additional Protocol to the Geneva Convention of 1977, cover: a.
Treatment of newborn babies, who are positioned as ill people; b.
Rights of children for care and aid; c. Occupation of children under the age of 15 years in safe areas and zones, and hospitals; d. The reunion of families who are separated by international or noninternational armed conflicts; e. The temporary transfer of children on the grounds of their safety, particularly from siege and of those present in areas under siege; f. Prohibition in cases of occupation by armed forces to compel protected people, particularly those under the age of 18 years, to work; g. Protection of culture and education of children; h. Prohibition to impose capital punishment to children under the age of 18 years if they commit violations; i.
Protection of rights of children who are accused, arrested, or exiled; j.
Protection of families, unchallenged by the status of children; k. Prohibition to recruit children under the age of 15 years into armed forces; and Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 268 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. l. Protection of orphans or children who are separated from their families.
Substantially, norms of international humanitarian law that regulates the protection toward children in armed conflict is found in the Geneva Convention relative to the Protection of Civilian Persons in Time of War and the Additional Protocol of the Geneva Convention of 1977.
The legal protection afforded to children is more directed on the consequences of armed conflict that will afflict or affect them, as well as prohibitions and prevention that are required to be conducted by the parties of the conflict in relation to the recruitment of underage children to become combatants.
International human rights law, as the law regime that may be applied in any condition, specifically regulates the protection of children in armed conflict within the Convention on the Rights of the Child and the Optional Protocol on the Involvement of Children in Armed Conflict.
However, in the region of Africa, where the utilization of underage children as combatants is well-known, the regulation of the protection of children in armed conflict is found within the African Charter on the Rights and Welfare of the Child of 199026.
Within the Convention on the Rights of the Child of 1989, there are four principles of protection toward children: a. Non-discriminative protection; b.
Best interests of the child; c. The right to life, survival, and development for a child; and d. Respect for the views of the child.
The four primary matters of the Convention on the Rights of the Child is affirmed to ensure the occurrence of respect 26 Ibid., p. 2. and protection toward children rights by states and the global community.
As an international treaty, the Convention on the Rights of the Child is ratified by almost all states in the world, but the ratification is not the final goal of the convention.
Its execution in law, policies, habits, and everyday practices is the ultimate goal of the intent to create the Convention on the Rights of the Child27.
Law enforcement of violations toward humanitarian law becomes something that is very important to prevent repeated violations.
As well, for violations committed by war participants toward the rights of children, firm sanctions must be imposed.
The 31 rights of children in the Convention on the Rights of the Child in relation to wartime conditions cover: a.
The right to obtain special protection during an armed conflict; b.
The right to obtain special protection in times of conflict; c. The right to obtain special protection in emergency situations; d. The right to obtain special protection as refugees; e. The right to obtain personal protection; f. The right to obtain protection from torture; g. The right to obtain protection from abuse and inhumane punishments and treatments; and h. The right to obtain protection from arbitrary arrest or detention.
Protection needs to be given by considering the nature of children who are vulnerable and need to be protected, and as such, it becomes necessary to improve the quality of protection toward children form their involvement in armed conflict.
27 Muhammad Joni, above n 5, p. 32.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 269 Therefore, an age limit for the recruitment of troops to become members of armed groups was established, which was 15 years based on Article 38 of the Convention on the Rights of the Child.
However, the age limit was then increased to 18 years through the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.
This was performed with the consideration that children who are 18 years old possess greater capacity for logical thinking and thus are able to differentiate good from bad, as well as to determine their own futures.
The General Assembly of the UN in 2000 adopted the Convention on the Rights of the Child.
Through special stipulations for the protection of children in situations of armed conflict, the Convention on the Rights of the Child states, through Article 38: 1.
“States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.” 2.
“States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.” 3.
“States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces.
In recruiting among those 28 Article 38 of the Convention on the Rights of the Child: (1) States parties are required to have and ensure respect of international humanitarian law in an occurring armed conflict, particularly regarding children; (2) States parties are required to take necessary action to make sure that people who are not yet 15 years old are not directly involved in combat; (3) States parties are required to prevent recruitment of people who are not yet 15 years old for the aim of armed conflict.
If in a recruitment there are people who are 15 years persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.” 4.
“In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.”28 Article 38 of the Convention on the Rights of the Child affirms that all states party to the convention are required to ensure and respect the rights of children, in particular children who live in an environment currently experiencing armed conflict.
States parties are also obligated to be able to protect the interests of existing children, and to be able to establish age limits in the recruitment of children as candidate soldiers for armed groups, whether for those of the government that are considered legal or those of the opposition, which are usually insurgent armed groups whose presence are considered illegal.
Moreover, it also stated that state is prohibited to recruit child under fifteen as soldier or combatant29.
As with the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, old but there are also people older than 15 years, states parties are required to prioritize older people; (4) Based on stipulations of international humanitarian law for protection of civilians when an armed conflict occurs, states parties are required to take action to make sure that children who become victims of an armed conflict are protected and cared for.
29 J A Robinson, ‘The Right of Child Victims of Armed Conflict to Reintegration and Recovery’, (2012) 15, Potchefstroom Electronic Law Journal, p.54 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 270 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. the African Charter on the Rights and Welfare of the Child 1990 that becomes the guideline for the protection of children rights in Africa also regulate the protection of children in armed conflicts.
Article 22 of the African Charter affirms the following: a.
States parties are required to take all effective measures to ensure that there will not be any children who take part or become involved directly in the struggle of conflicting parties.
b.
States parties are required to hold back, particularly in terms of child recruitment.
Article 2 of this Charter defines that children are every person under the age of 18 years.
c. In accordance with the obligations based on international humanitarian law to protect civilians in situations of armed conflict, states parties are required to take all measures that can ensure protection and care for children who are affected by armed conflict that occurs in the environment where they live.
Protection and care in this case also includes the recovery of children who become physical or psychological victims.
Next, for the parties that peruse child soldiers, a state may be imposed sanctions.
One of the forms of the sanctions may be compensatory payment based on Article 91 of Additional Protocol I of 1977, rule 149 of customary international humanitarian law, and collective responsibility.
In addition to the state, commanders who make use of child soldiers cannot be removed from 30 Haryomataram, Pengantar Hukum Humaniter [Introduction to Humanitarian Law], (PT.
Raja Grafindo Persada, Jakarta, 2007), p. 75.
31 Michael E. Kurth, ‘The Lubanga Case of International Criminal Court: A critical Analysis of the Trial Chamber’s Findings on Isuues of Active Use, Age, and Gravity’, (2013) Goetingen Journal of International Law, P. 433 responsibility based on commander responsibility as regulated in Article 28 of the Rome Statute30.
Moreover under the Lubanga Case, child under fifteen years old could not be enlist as a soldier.31 The prohibition against using children under the age of 15 to participate actively in hostilities is not dependent on the individuals concerned having been earlier conscripted or enlisted into the relevant armed force or group.32 The trial chamber conclude that child under fifteen could not and unable to give consent to be part of armed group.
Consequently, even if the child voluntary joins the armed force, it still wrong to accept them to be part of the armed force.
Also in the Ntaganda case, “conscripting and enlisting child under 15 years old to use them as soldier who taking actively in hostilities is undoubtedly very serious crimes”33.
The ICC also stated that “the impact to child soldier under 15 is significant”34.
IV.
CONCLUSION AND SUGGESTION Many factors cause the recruitment of children as child soldiers in times of conflict, but what is the most dominant is that children are involved because of the interests of adults (those who are in conflict), not on the basis of the interests or desires of the children.
Active involvement of children in armed conflict is not justified by any form of law.
Children have the right to safe and comfortable living for their proper development.
The various international legal instruments that regulate regarding the 32 Prosecutor v. Thomas Lubanga Dylo, ICC Trial Chamber I, No.
: ICC-01/04-01/06, 14 March 2012, para 604-605 33 The Prosecutor v. Bosco Ntaganda, ICC Trial Chamber IV, Sentencing Judgment, No: ICC01/04-02/06, 7 November 2019, para.
179 34 ibid., para 184 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. | 271 prevention, protection, and even enforcement for violators of different international legal instruments regarding the recruitment of children as child soldiers have actually not been able to decrease the number of children who become victims in armed conflict and are particularly directly involved as child soldiers.
The reason for this is that normatively, there are still some problems related to the uniformity of definition for the age of children, as well as the classic problem of the binding power of all international legal instruments related to the issue, regarding whether they do or do not give rise to compulsory obligation.
However, child under age of 15 absolutely could not be recruit as child soldier involuntary or voluntary.
It needs to be understood that children possess fundamental rights that must be fulfilled by the state as a duty barrier for the human rights of children, both during times of peace and armed conflicts.
Therefore, legal protection for children who are recruited as child soldiers in times of armed conflict, seen from the perspective of human rights, becomes obligatory.
This is in reference to the principles of human rights that have become basic norms (ius cogens) to which all states must comply.
If a state does not grant protection to children and even allows them to be directly involved in armed conflict, international legal sanctions may then be imposed.
V. ACKNOWLEDGEMENT We would like to thank all members of the international law department of the Faculty of Law, Universitas Brawijaya for all support in the research process and the preparation of this paper.
REFERENCE Books Bariah, Chairul, Perlindungan Anak Menurut Konvensi Anak-Anak, Legal Protection According to the Child Convention, (USU Repository, Medan, 2006) Haryomataram, Pengantar Hukum Humaniter [Introduction to Humanitarian Law], (PT.
Raja Grafindo Persada, Jakarta, 2007) Joni, Muhammad, Aspek Hukum Perlindungan Anak Dalam Perspektif Konvensi Hak Anak [Aspects of Child Protection Law in the Perspective of the Convention on the Rights of the Child], (P.T Citra Aditya Bakti, Bandung, 1999) McBride, Julie, The War Crimes of Child Soldier Recruitment, (T.M.S Asser Press, The Hague, 2014).
Melzer, Nils, International Humanitarian Law: A Comprehensive Introduction, (ICRC, Geneva, 2019) Grover, Sonja C. , Child Soldier Victims of Genocidal Forcible Transfer: Exonerating Child Soldiers Charged with Grave Conflict-related International Crimes, (Springer, Heidelberg, 2012) UNICEF, Guide to the Convention on the Rights of the Child (CRC), UNICEF, Jakarta.
Journals and Reports Cuni, Enarda and Juelda Lamce, ‘The Right to Protect Children under International Law: The Case of Child Soldiers’, (2013) 2(8), Academic Journal of Interdisiplinary Studies.
Drumbl, Mark A.,The ‘Effects of The Lubanga Case on Understanding and Preventing Child Soldering’ (2012) 1 Yearbook of International Humanitarian Law.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 272 | Suryokumoro, Ikaningtyas, Muafi Quo Vadis Legal Protection for Children Recruited.. Graham, George, and Kirollos, Mariam, (Report writer), ‘Stop The War on Children’, (2019), VierCprint+mediafabrik, Germany Haer, Roos, ‘The Study of Child Soldering: Issues and Consequences for DDR Implementation’ (2016) Third World Quartely Mcknight, Janet, ‘Child Soldiers in Africa: A Global Approch to Human Rights Protection, Enforcement and PostConflict Reintegration’, (2010) 18(2), African Journal of International and Comparative Law.
Kurth, Michael E., ‘The Lubanga Case of International Criminal Court: A critical Analysis of the Trial Chamber’s Findings on Isuues of Active Use, Age, and Gravity’, (2013) Goetingen Journal of International Law Robinson, J A , ‘The Right of Child Victims of Armed Conflict to Reintegration and Recovery’, (2012) 15, Potchefstroom Electronic Law Journal.
Rashid, Sulaf Abdullah Hama, ‘International Protection for Victim of Sexual Violance During Armed Conflict’, (2020) 7 Jurnal of Critical Review.
Mungoven, Rory.
‘Global Report on Child Soldiers Part 1’.,(2018), Child Soldiers Global Report Readings I: ‘International Conflict Studies, Department of Peace and Conflict Research’ (2002) Uppsala University, Sweden Ve savasin, Çocuklar and Etkileri, Saglik, ‘Children and Health effects of War: Being A War Child’, (2017) 39 (4) Cumhuriyet Medical Journal.
Regulations Additional Protocol I of Geneva Convention 1977 Convention on the Rights of the Child 1989 Geneva Convention 1949 ILO Convention Optional Protocol to The Convention on The Rights of the Child on the involvement of Children in Armed Conflict entry into force 2002.
Rome Statute Lubanga Dylo, ICC Trial Chamber I, Judgement Pursuant to Article 74 of the Statute, No.
: ICC-01/04-01/06, 14 March 2012, para 604-605 The Prosecutor v. Bosco Ntaganda, ICC Trial Chamber IV, Sentencing Judgment, No: ICC-01/04-02/06, 7 November 2019, para.
179 Internet Benekdita Miranti, UNICEF: 2010-2019 Jadi Dekade Mematikan Bagi Anak Daerah Konflik [UNICEF: 20102019 Becomes the Most Deadly Decade for Children in Areas of Conflict], https://www.liputan6.com/ global/read/4145033/unicef-20102019-jadi-dekade-mematikan-bagianak-daerah-konflik, accessed on April 10, 2020.
BBC News Indonesia, Serangan terhadap anak di wilayah perang sangat mengejutkan [Attacks on children in war areas are very surprising], https://www.bbc.com/indonesia/maja lah-42501881, accessed on April 10, 2020.
Why children join, http://www.childsoldiers.org/childsoldiers/whychildren-join, accessed March 20, 2020.
DR Congo 'awash' with child soldiers http://news.bbc.co.uk, accessed March 27, 2020. https://www.liputan6.com/%20global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.liputan6.com/%20global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.liputan6.com/%20global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.liputan6.com/%20global/read/4145033/unicef-2010-2019-jadi-dekade-mematikan-bagi-anak-daerah-konflik https://www.bbc.com/indonesia/majalah-42501881 https://www.bbc.com/indonesia/majalah-42501881 http://www.child-soldiers.org/childsoldiers/why-children-join http://www.child-soldiers.org/childsoldiers/why-children-join http://www.child-soldiers.org/childsoldiers/why-children-join http://news.bbc.co.uk/
Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 96 Contemporary Comments THE FREEDOM OF RELIGION WITHIN A SYSTEM OF BASIC RIGHTS ACCORDING TO THE GERMAN BASIC LAW AND THE INDONESIAN CONSTITUTION* Christoph Enders1 ∗1 I.
Constitutional Order with Basic Rights under Eternal Principles The “Basic Rights” as laid down in the German constitution, the Basic Law of 1949, draw a conclusion from the universal idea of Human Rights: This idea is a crop of the belief, that every human being is endowed with dignity and therefore has a “right to have rights”.
These Rights are universal, eternal, perhaps of divine origin, but can not be sued in a state court.
The fundamental native rights of the human person therefore have to be written down and guaranteed in a constitution drafted and imposed by men – in the case of Germany: the so called Basic Law (see Art.
1 secs 1-3 GG).
It is, as is the 1945 Constitution of the Republic of Indonesia (UUD 1945), which also ∗ In addition to this, also with regard to the decision of the German Federal Constitutional Court of January 27th 2015 (BVerfG – 1 BvR 471, 1181/10) and to the judgement of the Constitutional Court of the Republic of Indonesia (MKRI) of April 19th 2010 (Nr.
140/PPUguarantees Fundamental Rights, an expression of the people´s free selfdetermination and constituent power (in other words: an expression of the sovereignty of the people) – as state unanimously the preambles of both constitutions as well as the relevant folowing provisions (of Art.
1 sec.
2 UUD 1945 and Art.
20 sec.
2 of German Basic Law).
If we compare the 1945 Constitution of Indonesia with the German Basic Law there are further similarities: Both constitutions refer to the people´s will of being part of an international community which is devoted to the United Nations principle of promoting freedom, peace and justice in the world (see Preamble UUD 1945; Art.
1 sec.
2 GG).
So it is true for the two states of Indonesia and of Germany that VII/2009).
The author has to thank Wolfgang Brehm, Jakarta, who translated the decision of the MKRI Nr.
140/PUU-VII/2009 of April 19th 2010 into German.
1 Faculty of Law, Leipzig University, Germany Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 97 their national constitution is not the only source of law the state authority has to observe.
Both states are integrated in the legal system of international law, including e.g.
treaties on human rights such as the ICCPR; Germany moreover is part of the European Union and has to take into account the European Charter of Basic Rights, when enforcing European law in Germany.
However, even then the constitution is, and remains, in some respect the “paramount law” (as the US Supreme Court stated in Marbury vs. Madison 1803), the supreme norm in the hierarchy of laws, which is setting the basic legal standards.
This can be said of Indonesia as well as of Germany.
Even if we can`t go into details here: There must be limits to the influence of external legal orders – at least because both constitutions claim to be built upon and to have founded the state on an unassailable, unalterable basis of implemented eternal principles.
The 1945 Constitution of Indonesia is built on the five pillars of “Pancasila” as defined in its Preamble.
Pancasila represents the quintessence of a 2 S. Butt/T.
Lindsey, The Constitution of Indonesia, 2012, p 14 quoting Art.
2, Law 10 of 2004 on Law-making.
3 MKRI Nr.
140/PUU-VII/2009 Par.
3.34.9; 3.34.23. legitimate legal order and the `source of all sources of law´2 in Indonesia.
These pillars or principles are Humanity, the Unity of Indonesia, a representative and deliberative Democracy, Social Justice, however in the very first place: the belief in the One and Only (Almighty) God.
One might say the constitution thereby acknowledges “Theism” as Indonesia’s state philosophy3 and as the “fundamental basis of national life”4, that may never, and in no way, be changed or overthrown5.
German Basic Law in a similar way declares certain constitutional principles for absolutely unalterable: The provision of Article 79 paragraph 3 of the Basic Law, the so called Eternity guarantee, stipulates that amendments to the Basic Law affecting the principles laid down in Article 1 and Article 20 of the Basic Law – i.e.
democracy, the rule of law, the principles of the social state, of the republic, of the federal state, as well as the substance of elementary fundamental rights – shall be inadmissible.
That means: under no circumstances, not even by an amendment of the constitution, could 4 S. Butt/T.
Lindsey, The Constitution of Indonesia, 2012, p 23.
5 MKRI Nr.
140/PUU-VII/2009 Par.
3.72.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 98 Germany give up these principles – as this would be unconstitutional6.
However, apart from an obvious correlation, closer comparison between the two constitutional texts shows a significant difference: The founding Fathers (and Mothers) of the German Basic Law have been “conscious of their responsibility before God” (see the Preamble) and the German state does not have a distancing, hostile attitude towards religion and religious societies “in the sense of a strict separation of state and church”.
On the opposite the state is called upon to safeguard religious freedom in many ways and to “(encourage) freedom of faith equally for all beliefs”7.
However as a secular institution the state of the Basic Law stays neutral in regard to religious or philosophical creeds (so called religious and ideological neutrality required of the state)8.
Religion is – as it is mostly in 6 It is in compliance with the Basic Law though to impose a totally new Constitution, Art.
146 BL.
7 See Federal Constitutional Court (FCC) 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (339, Par.
110).
8 See FCC 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (339, Par.
110).
9 Christoph Enders, Religion as a Private Matter, in: Enders/Afifah Kusumadara (ed.
), United in Diversity, 2012, p. 9.
10 Art.
2.1 of the German Basic Law says: "Every person shall have the right to free development of his personality insofar as he does not violate western countries – a private matter, left to any individual’s “pursuit of happiness”9.
It doesn´t come as a surprise, that in Germany the individual right to the free development of one´s personality (the general freedom of action, the right to do whatever one wants to do) is limited by all the law in compliance with the constitution (the “constitutional order”), by the rights of others and even by the moral law (Art.
2 Par.
1 BL) – but not by religious values10.
Not so in Indonesia: As Pancasila is the supreme source of law (setting the standards for all law), which includes as its first principle the belief in an almighty God, it qualifies religious values as a genuine part of the constitution, creating equally individual rights and obligations; obligations, which generate limitations of individual freedom11.
The Judgement of the Constitutional Court from the 19th the rights of others or offend against the constitutional order or the moral law”.
Of course in Germany there is a close relationship between the rules of conduct handed down by the Christian (Catholic and Protestant) Church – as e.g.
the rules given in the “Sermon of the Mount” in the Bible´s New Testament – and the rules of the “moral law” generally accepted in the society as a whole.
Nevertheless those moral rules nowadays have a standing of their own and are no longer legitimated by their religious provenience.
11 In contrary to the possible limitations stated in Art.
2.1 of the Basic Law Art.
28J.2 of the 1945 Constitution of Indonesia stipulates that laws Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 99 of April 2010 makes it very clear: The Indonesian “rule of law” has to be interpreted from a specific, not entirely secular perspective12.
“State implementation of the Pancasila” then is indeed all but “rhetoric”13.
II.
Unlimited Criticism?
Opinions defaming religions and religious associations This difference between the Indonesian and the German constitutional perspective may be shown in examining cases that concern conflicts between religious groups and their opponents or critics that behave, according to the self-reception of the religious group, indecently.
A typical area of tension and of such conflicts affecting Religion and religious sensations is the public debate over “Islamization”.
In Germany the fear of obvious or hidden “Islamization” is omnipresent and manifests itself in public protest and demonstrations (e.g.
against the influence of Salafist circles).
may impose restrictions to the exercise of individual freedom “… in order to comply with just demands in accordance with considerations for morality, religious values (!
), security and public order in a democratic society”.
MKRI Nr.
140/PUU-VII/2009 Par.
3.34.8.
12 MKRI Nr.
140/PUU-VII/2009 Par.
3.34.10, 11.
13Different from the assertion of S. Butt/T.
Lindsey, The Constitution of Indonesia, 2012, p To articulate their critical standpoint the protesters often used to show the infamous Mohammed caricatures (drawn by the Danish illustrator Kurt Westergaard).
Of course, the constitution does not guarantee the freedom of demonstrations that are not peaceful, but violent (see Art.
8 GG)14.
They are against the law and may be prohibited.
Showing caricatures is, however, not the kind of violent behaviour outlawed by the constitution of the Basic Law.
However, is it offensive to show such caricatures?
The purpose of assemblies is to express opinions of the people assembled.
If the opinions are offending other persons, they must not be expressed even in an assembly and the assembly therefore may be prohibited.
Showing Mohammed caricatures indeed must be considered offensive – although only in terms of religion and religious sensations.
German courts therefore ruled15, that showing the Mohammed caricatures is 14: “state implementation of the Pancasila has frequently been not much more than rhetoric”.
14 Art.
8.1 BL: „All Germans have the right to assemble peacefully (!)
and unarmed without prior notification or permission”.
15 Higher Administrative Court North of RhineWestphalia, April 30, 2012 (5 B 546/12); Higher Administrative Court of Berlin-Brandenburg, August 17, 2012 (1 S 117/12).
See Christoph Enders, “Freedom of Expression and Freedom of Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 100 not necessarily offending other persons, as we have to make a distinction between the individuals and their religion that is being criticized.
Showing caricatures of religious symbols or persons that are kept holy by a religious group might then be offending the religion and the religious belief of the group – but the religion or the religious belief or the religious group are not protected as such and the intention to protect them is not as such justified when it comes to limiting other people´s freedom.
Defaming a religion or a religious group therefore is only prohibited and sanctioned by the criminal law, if the defaming action is disturbing public peace (see § 166 StGB – Criminal Code16).
Showing the Mohammed caricatures in general is not unlawful.
The Indonesian Constitutional Court was right, when it stressed the difference between a western and the Assembly in the German Constitution”, in: Afifah Kusumadara/Christoph Enders (ed.
), United in Diversity – Citizenship and Education, 2013, p. 1 (6).
16 Section 166 of the German Penal Code (“Defamation of religions, religious and ideological associations”) says: “(1) Whosoever publicly or through dissemination of written materials (section 11.3) defames the religion or ideology of others in a manner that is capable of disturbing the public peace, shall be liable to imprisonment of not more than three years or a fine.
(2) Whosoever publicly or through dissemination of written materials (section 11.3) defames a church or other religious or ideological association within Germany, or their institutions or customs in a manner that is capable of Indonesian constitutional perspective and stated that in western countries defaming a religion or a religious group might be – under certain circumstances – allowed17.
III.
Strong Constitutional Protection of the Religious Freedom – and its Limitations 1.
Constitution´s Unconditional Guarantee of Freedom of Faith and Religion On the other hand: The freedom of faith and the freedom to profess a religious (or ideological) belief are very strongly protected by the German Basic Law (Art.
4 secs.
1 and 2 GG)18.
When examining the wording of these provisions we note that there is no explicit allowance for the legislative to interfere with these freedoms by enactment of a legal statute19.
That disturbing the public peace, shall incur the same penalty.” 17 MKRI Nr.
140/PUU-VII/2009, Par.
3.34.10, 11.
However also see the text at footnote 23.
Interpreting religious rules as adhered to by a religious association or group in a specific way that differs from the majority´s standpoint and even outspoken criticism does not mean defaming a religion or a religious belief.
18 Art.
4.1,2 BL: “(1) Freedom of faith and of conscience, and freedom to profess a religious or philosophical creed, shall be inviolable.
(2) The undisturbed practice of religion shall be guaranteed.” 19 Different from the regulation by the 1945 Constitution of Indonesia, which states Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 101 means that these freedoms are guaranteed unconditionally.
Restrictions not only require a sufficiently definite statutory basis but must be contained in the constitution itself.
“This includes the fundamental rights of third parties and community values of constitutional status …”20 The limitation in question here is a constitution-immanent limitation, a limitation to fundamental rights inherent to the constitution.
In addition these values of constitutional status are to be protected in a manner that is only interfering with the freedom of faith and religion as far as necessary.
Interference has to be proportional, because burden of proof that exercising a guaranteed freedom causes damage for the community (the rights of its members or the values acknowledged by constitution) lies with the state authority.
The constitutional principle of proportionality therefore stipulates, that each law that interferes with a constitutionally guaranteed individual freedom, must be proportional: it must be suitable and necessary to reach its legitimate aim and last but not least it must be appropriate.
Disproportionate interferences with limitations to the freedom of religion (Art.
29 sec.
2) in Art.
28J, see footnote 10. guaranteed freedoms of the individual are unconstitutional, because they unreasonably restrict the freedom of the individual.
2.
The German “Headscarf Cases” of 2015 These elements of the Constitution´s “unconditional protection” of the freedom of faith and religion describe the legal framework the Federal Constitutional Court had to take into account when deciding the “Headscarf Cases” in 2015: Two female Muslim teachers (of German nationality) would not be allowed to wear a headscarf (or: a woollen hat worn as replacement) at public school.
Both argued that they would wear the headscarf for religious reasons, because they considered the rule to cover themselves in the public to be binding due to their Islamic religious belief.
The school objected and imposed sanctions on the women, applying a law that prohibited wearing clothes with a religious connotation at public school in order to prevent any interference with the pupils` negative freedom of faith and to profess a belief.
20 See FCC 24 September 2003 – 2 BvR 1436/02, Volume 108, 282 (297, par.
38).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 102 The Constitutional Court however ruled that “wearing clothes with a religious connotation does not per se constitute an interference with the pupil´s negative freedom of faith and freedom to profess a belief (Art.
4 secs 1 and 2 GG).
As long as members of the teaching staff do not verbally promote their position or their faith and do not try to influence the pupils apart from their outer appearance, pupils are only confronted with the positive freedom of faith as exercised by educational staff …”21 Before we come to analyse the main argument of this ruling, the question arises, who decides that the behaviour of a person qualifies as exercise of his or her religious belief and therefore is protected by the Constitution.
Not every Muslim woman is wearing a headscarf.
So we might doubt, that the headscarf is worn due to an absolute binding rule, a rule that is perceived as imperative.
Here the ruling of the German Constitutional Court differs from the argument given in the Decision of the Indonesian Constitutional Court of April 19th 2010 concerning the Blasphemy Law.
The 21 See FCC 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (337, Par.
105).
Indonesian Court pointed out that the authentic interpretation of religious rules and duties – as far as outer appearance or conduct is concerned (“forum externum”) – is the responsibility of the officially recognised religious community and their official representatives (Ulama)22.
This perspective causes difficulties for differing doctrines of minority cults and individuals.
In contrast to this view the German Federal Constitutional Court notes that “one has to take into account the self-perception both (!)
of the relevant religious community and of the individual concerned.
However, the state authorities (not the individual!)
may analyse and decide whether it has been made plausible, with sufficient substantiation, that the conduct can actually be attributed to the scope of application of Art.
4 GG”.
On the basis of these arguments German courts e.g.
qualified the “Church of the flying Spaghetti Monster” as a joke, that did not deserve being acknowledged as a religious association, and whose “rules” could not benefit from the protection that Freedom of Religion is awarded by the constitution.
22 MKRI Nr.
140/PUU-VII/2009, Par.
3.53.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 103 In the Headscarf Case, that the German Constitutional Court had to decide, it did not matter, as the court stated, “that the exact content of the female dress code is quite disputed among Islamic scholars and that some schools of Islam do not have such a compulsory rule.
It is sufficient that this interpretation exists in different schools of Islam and can be traced back to two verses in the Quran, in particular”.
The two Muslim women in this sense had “plausibly demonstrated that, in their case – and in accordance with the selfperception of some Islamic groups –, covering themselves in public constitutes an imperative religious duty”23.
What is the main reason that the strict prohibition of expressing one´s religious belief by wearing the headscarf unreasonably restricts the freedom of faith, so that the limitation is disproportionate and unconstitutional?
Shouldn´t the female Muslim teacher show consideration for the possible uneasiness of pupils and their parents and shouldn´t she therefore refrain from following the rule to cover her head and 23 See FCC 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (332, Par.
96).
24 See FCC 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (336, Par.
take off her headscarf at public school?
It is crucial here that pursuant to the (neutral and) pluralistic approach of the Basic Law´s constitutional order, there is no individual right to not be confronted with “cultic acts, religious symbols and professions of other faiths”.
In the words of the Constitutional Court: “in a society that affords space to differing religious convictions, he or she has no right to be spared cultic acts, religious symbols and professions of other faiths”.24 Consequently there is no specific duty of consideration for the religious sensations of other people, may they belong to the minority or the majority group.
And this exactly makes a strict prohibition of the expression of religious beliefs, to prevent “a mere abstract danger to the peace at school or to the neutrality of the state” disproportionate and unconstitutional – because the religious pluralist society is just mirrored in public school25.
3.
A Loophole: “Peace at School” and Public Peace In the end, the German Constitutional Court has to calm down 104; 343, Par.
116); FCC 24 September 2003 – 2 BvR 1436/02, Volume 108, p. 282 (301 f.).
25 See FCC 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (337, Par.
105).
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 104 critics, who are afraid that the state now has been deprived of any means that would allow him to guarantee peace at school and to exercise its educational mandate (Art.
7 sec.
1 GG) in any case, also in case of necessity.
And we can see how the argumentations of the two courts, the German Federal Constitutional Court and the Indonesian Constitutional at last/eventually come closer to one another: A mere abstract danger, says the Federal Constitutional Court, to the peace at school does not necessitate, and therefore will not justify, a strict prohibition of the expression of religious beliefs.
If there is a sufficiently specific danger to the peace at school or to the neutrality of the state however (more or less: for the public order), a prohibition of exercising freedom of faith may be justified – no matter who is responsible for this danger26.
So if pupils or parents would feel disturbed and offended by a Muslim teacher wearing a headscarf and would give loud and radical expression to this uneasiness, this could and probably would cause a 26 We notice a similar reasoning in France, where – after the terror strike of July 14th 2016 – the use of Burkini bathing suites had been banned at some beaches by local mayors to protect public order.
The ban imposed by a community at the Cote d´Azur has been annulled by the Conseil d´Etat (State Council) on August 26th 2016, because a mere abstract danger does not justify specific danger for peace at school.
It then – obviously a loophole to keep up in any case peace at school as well as in the public – “would be reasonable to expect the educational staff to refrain from following the rule to cover their heads” – even if they (the Muslim teachers) perceive that rule as imperative27.
This argument reminds us of the reasons given by the Indonesian Constitutional Court to uphold the Blasphemy Law in 201028: The state is responsible to protect public safety and public order and sometimes has to force the minorities to keep quiet, even if it is not them who imminently cause the social trouble or political unrest.
Even the revolutionary French “Declaration of the Rights of Man and of the Citizen” (from 1789) was in this way concerned about the public order and therefore stated in its Article 10: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law”.
This seems to be a universal rule of such an interference with individual freedom.
Only the protection against a specific danger to the public order may justify the prohibition of an outer conduct.
27 See FCC 27 January 2015 – 1 BvR 471/10, 1 BvR 1181/10, Volume 138, p. 296 (341, Par.
113).
28 MKRI Nr.
140/PUU-VII/2009, Par.
3.52, 3.61.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 105 maintaining political authority, valid in Germany as in Indonesia as all over the world.
Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 106 THE AUTHORITY OF VILLAGE GOVERNMENT IN AFFIRMING BORDER MANAGEMENT (CASE STUDY OF GALANG ISLAND DISPUTE) Rina Yulianti1 Iwan Permadi2 ABSTRACT Border Disputes related to territorial management between local Governments dominate the ongoing cases within the Ministry of Internal Affairs in Indonesia.
This study aims to propose a model of a policy of border Disputes resolution using non-doctrinal legal research (socio-legal research).
This research limited itself by looking at Galang Island, the which is disputed between the city of Gresik and Surabaya.
To gain Appropriate analyzes, in depth interviews and secondary of data was conducted and collected both in Gresik and Surabaya.
Furthermore, this research finds that the reason underpinned such Disputes lays on the weaknesses of village government in the territorial management proofing formally they have been doing.
It is submitted that in forming and affirming border delimitation, Indonesian Act Number 6 year 2014 on Village jo Ministry of Internal Affairs Regulation number 114 year 2014 can used as legal base.
Keywords: Authority, Village Government, affirming, Border 12 I.
INTRODUCTION Indonesian Act No.
22 Year 1999 on Local Government Autonomy marks the beginning of an era in Indonesia, where local government was given broader authority and responsibility.
The newest revision of the Act is Indonesian Act No.
23 Year 2014.
This Act moreadopted principles, to which include democratic, equalization, fairness, 1 Lecturer of Law Faculty, Trunojoyo University Faculty Of Law, email: abundarina@gmail.com justice, specialization and the potential diversity of each local government within Indonesia.
Legal implication of the enforcement of Indonesian Act No.
23 Year 2014 is broader authority of local government to manage natural resources within Reviews their territory, both in land and ocean.
Thus Spake border delimitation is crucial.
Because this is such a border delimitation administration Affects not 2 Lecturer of Law Faculty, Brawijaya University Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 107 only population issue, but also encourage Disputes resources management.
General Allocation Fund (DAU / General Allocation Fund) as well as profit sharing is affected by how broad local government's terrotiry is.
Tus, this aspect is considered as stsrategic factor of border delimitation.
For the purpose of this research, it should be Noted that local government include village government.
In fact the braoder the autonomy given by the local government, on border delimitation Increased Disputes.
One of intereseting Disputes, roomates also the focus of this study was Disputes on Galang Island located between Gresik and Surabaya.
Tus, it is submitted that the legal Tus reconstruction on border Disputes between local Governments is needed Based on the above background, research questions is as follows: "To what extend the authority of village government in Determining border delimitation as a means to resolve border resolution Disputes between Gresik and Surabaya?"
II.
RESEARCH METHOD The type of study used in this research is socio legal research with empirical study and look at how the law works in society.
This research is conducted in East-Java, especially in disputed areas, to which include Surabaya and Gresik.
Data used consists of primary and secondary data.
Primary Data include filed study, interview and observation gained form local society living around the disputed areas.
In addition to this, Also information gained from local government officers from villages level up to distric level as well as the relevant parties in the border involve; Disputes.
Secondary whereas the data is gained through documentary study and the decision made by the local authority related to the border dispute resolution.
III.
RESULT AND DISCUSSION Reasons and Implication of Border Dispute in Galang Island The object of this study is Galang Island of 14 acres, having different history based on each of the local government versions.
According to Karang KiringVillage, Galang Island was part of Java Island and due to abrasion, Galang Island was separated from Java.
Whereas According to Romokalisari Village, Galang Island was found by university student in Surabaya Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 108 along with local authority while conducting land surveys.
It is not surprising that each of parties has disputed Reviews their own technical, legal and historical claim on their argumentations.
Each party "claim to have rights" on the existence of Galang Island, which leads to a legal dispute.
The following are argumentations of each local government: a. Karang Kiring's argumentation: Aslimun, the Head of Karang KiringVillage Explains that historicaly the existence of Galang Island was a part of Java and separated due to abrasion.
Along the way, there has been a land of certification given by the National Land Agency (BPN) to 7 villagers until it was owned by three business entity.3 b.
The argument of Land Ownership Holder at Galang Island PT Gantari Sandya Partner (GSM) juridicaly Considered as the only legal ownership of land certification issued by BPN through Gresik Land 3interviews with Karang Kiring Head of Village On May 15, 2015.
4http://www.publiknasional.com/index.php?opti on=com_content&view=article&id=1464:urukpantai-pt-gantari-sandya-mitra-diprotresOffices, over the Galang Island.
PT GSM's ownership rights was based on merging many land certificate and now known as belongs to Tri Hanggo with certificate number 72.4 c. Argumentation of Surabaya Government Legal Department of Surabaya Government re-affirming that Galang Island is included within Surabaya territory based on legal documents collected by the Department of Land and Building Surabaya.5 d. Arguments Regional Office of the National Land Agency and Spatial East Java The BPN through the Office of East Java testified as follows: In 1978, the status of the land that is now standing Gantari Sandya factory owned by PT Mitra belonged 7 Karang Kiring figures in the name of Yahya, Mas'ud, Oyek, Kasbu, Daji, Wahyudin and Amali Umpung who cultivate land or now known coast with Galang Island, " In 1988 the land owned by 7 persons sold to 3 brothers namely Dorowati, Punta Surya and Surya nelayan&catid=36:jawa-timur, accessed on 8 Juni 2015 5Interviews with Mr. Maskur, Legal Department Staff of Surabaya Government, on June 9, 2015.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 109 Puntoro.
In the same year, land ownership is merged into one with a certificate issued by the Office of Agricultural Province (BPN and Spatial Planning) of the number m44 into M71, M45 to 72, M46 to 72 are now passed on to the Tri Hanggo, and on the land is established factory PT Gantari Sandya Partners.
Thus, according to the records office of the Office of BPN / Spatial East Java ownership of the land is lawful PT GSM.6 e. Arguments East Java DPRD Commission A (period 20092014) As we went to the East Java Provincial Parliament, and met by the deputy chairman of the period 20142019, Mr Kusnadi, SH., M.
Hum., Galang Island issue has been handled by the Commission A and the Special Committee (Committee) East Java DPRD the period 2009-2014, and at that moment Mr Kusnadi still served as a committee member in charge of government and law.
Here conveyed by Mr. vice chairman of what was done by the people's representatives in response to the case between the government of 6Interview with Analysis and dispute Resolution Officer Indonesian Land Authority East Java Province on 8 June 2015 Surabaya and Gresik District Government, as follows: Galang Island attention to the dispute between the city government of Surabaya and Gresik regency, beginning with Mr. Sabron Djamil activities Pasaribu Chairman of Commission A Java Parliament (2009-2014) and followed by other members of a commission with the inspection to Galang Island.
A commission at the time indicated there were irregularities in the issuance of a certificate on the ownership of Pulau Galang that seem to protect the owner of the certificate, as is evident from the entry Galang Island, only controlled by the owner of warehousing, but there is no enforcement of the relevant institutions.
A commission has even come to consult the National Land Agency Galang Island, and the National Land Agency pledged to help revocation certificates owned by the third person, if found irregularities at the time of publication.
Special Committee Java DPRD ever discuss this dispute argues, BPN Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 110 and local government have violated procedures Gresik new island ownership, no decision has been facilitated by the authorized institutions sold and ended up in the hands of investors.
Then all the buying and selling was null and void, the certificate should be revoked.
On the administrative control of the islands should have been charged to the Provincial Government of East Java as an arm of the central government, and employers should not be arbitrarily reclaiming the islands.
Finally the Special Committee recommends that the Parliament of East Java East Java Governor filed a revocation of certificates of property rights on Galang Island.7 f. East Java Government's argument Through Mr. Supriyanto, SH., MH.
Ka.Biro Public Administration and Governance, and PJ.
Regent of Blitar, delivered to the problems that Galang Island in the fighting by the Surabaya and Gresik, is as follows:"East Java Governor, Soekarwo, in October 2013 sent a letter to the Minister of the Interior 7Interview with Kusnadi, SH., M.Hum former Acommission member of Indonesian Board of Assembly 0n 1 June 2015 (Home Affairs) concerning a dispute between local government Galang Island Gresik and Surabaya City Government.
The letter in order to strengthen Galang Island status as a conservation area managed by the Provincial Government of East Java.
Np confirmation letter.
590/227 dated June 18, 2014 on Galang Island of Home Affairs, stated that the status management Galang Island submitted to the Provincial Government of East Java, while related matters Surabaya City Government property or otherwise Gresik regency 'status quo' and assigned to the Governor of East Java to facilitate and maintain conservation for environmental sustainability”.8 The argument of some parties as mentioned above becomes a source of a struggle over control Galang Island, and it can be concluded that the source of conflict due to: 1.
The issuance of the certificate of ownership 7 villagers of Karang Kiring Galang Island by land office in Gresik which eventually merged into a certificate issued 8Interview with General Department East Jave Province on 26 June 2015.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 111 by the Regional Office of BPN and Spatial East Java.
2.
Reclamation conducted by PT.
Gantari Sandya Partner GSM) has changed the regional boundaries and eliminate the livelihood of fishermen.
3.
Ownership galang island by PT.
GSM development goals conflict with the central warehousing function space utilization, because in accordance with the mandate of the regional spatial plan (RTRW) jatim 2009-2029.
The island's mangrove areas and the conservation of fauna.
In essence, the conflict created by competition for access to the authority (power) and economic resources / wealth of the actors concerned.9 Boundary disputes can cause horizontal conflicts and tend to be anarchic and destructive action among community members.
Research boundary conflict between Tebo and Bungo in this study due to factors both 9Syamsul Hadi, et.al., 2007, Disintegrasi Pasca Orde Baru: Negara, Konflik lokal dan Dinamika Internasional, Yayasan Obor Indonesia, Jakarta, p.42 10 Nurbadri, 2008, Konflik Batas Wilayah diera Otonomi Daerah dan Upaya Penyelesaiannya judicial and non-judicial.
Juridical factors, among others ambiguities border arrangements and lack of socialization.10 At this research area is the city of Surabaya and Gresik, the research team found a few things that the impact of the border conflict, whether they are positive or negative.
As for the impact that we can describe as follows: a.
Negative impact i.
There was stagnation in outlining the problems of seizing ownership Galang Island in the village of Karang Kiring Government, District Kebomas, Gresik.
Reef Village Government Kiring through his village head, Mr. Aslimun explaining that the village in terms of not having the authority to describe the problems Galang Island because it is handled directly by the central government and the (Study kasus Konflik Batas Wilayah antara Kabupaten Tebo dengan Kabupaten Bungo, Jurnal Masalah-Masalah Hukum, Fakultas Hukum Universitas Diponegoro, Vol.37 No.4, p. 266-272 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 112 Province.
In this situation the village has proved a weakness formal borders, as only rely on the Map Krawangan and book Kretek village that in fact never reform despite drawing the map has changed because of the nature.
ii.
The lack of evidence of formal boundaries at village level resulting in weak protection against delimitation based on local wisdom.
iii.
Reclamation conducted by PT GSM causing fishermen around the region decreased even loss of income due to damage to the environment that affect the marine habitat.
b.
Positive impact : i.
Village Head Reef Kiring mention the presence of Galang Island dispute these positive impacts for prudence in running the government administration main village land administration.
ii.
Affirmation of village boundaries is very important to arrive at the level of village government, for the planning of mapping by the village needed to prevent disputes, especially concerning the renewal of coastal areas.
Set a limit on the area that the implications for the region as a management authority in the field is definitely not easy.
Administration of the regional government is already running and growing ever since the birth of the Republic of the Indonesia (NKRI) and limits of juridical been set by the law establishing the respective regions, the facts determine the points physical limits by law the establishment of the area itself often causes problems between the regions concerned because it is not easy to agree on the points specified limits.
In fact, border conflict areas in East Java government is not a new phenomenon.
In 2012, the Regional Development Planning Board (Bappeda) of East Java, have recorded at least four Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 113 border conflicts that occurred.
Recorded 3 border conflicts in East Java which one of them occurred on the border of East Java and Central Java, namely: The battle over the crater between Banyuwangi regency and Bondowoso regency; conflict between Rembang in Central Java and Tuban in East Java.
This conflict fight quartz sand mine excavation; conflict between Blitar and Kediri Regency with regard to Kelud.11 Statement misunderstanding was believed as the underpinned reason of the conflict.12 Rules and norms relevant to the conflict as the norm entitled to assign the results received by certain parties to also determine the aspirations of what they are entitled.
When aspiration is considered incompatible with the purpose of other parties then the result can lead to conflict.13 Indonesia has a high potential for regional conflict and increased after the 11Ira Permata Sari, 2014, Konflik Perbatasan Pemerintah Daerah (studi kasus: perebutan gunung kelud antara pemerintah daerah Kabupaten Blitar dengan Kabupaten Kediri), Jurnal Ilmu Pemerintahan UB, 08 Januari 2014, p.3 12Nida Zidny Paradhisa, 2012, Konflik Kepentingan Daerah: Studi Kasus Sengketa Perebutan Gunung Kelud antara Pemerintah Kabupaten Kediri dan Pemerintah Kabupaten Blitar, Jurnal Politik Muda Universitas regulation of regional autonomy.
Before the era of regional autonomy, in Indonesia there are only 27 provinces and 277 districts / municipalities.
After regional autonomy, that number swelled to 34 provinces and 511 districts / cities even more with the accelerated rate of expansion of the countless outstanding and, as expected, creating spaces of potential new problems.
The division of a region into a number of new autonomous regions result in changes to the boundaries of the area region both administrative and geospatial (spatial), which is the essence of the emergence of serious problems.
Those problems are conflicts over land boundaries.14 In practice, the process of conflict settlement boundaries cannot always be carried out smoothly, there is a tendency even number of disputes / conflicts boundaries between regions increases.
From the practical point of view, identified some of the causes of Airlangga, Vol 2 No.1, Januari-Maret 2012, p. 136-146.
13Dean G. Pruit & Jeffrey Z Rubin, 2004, Teori Konflik Sosial (terjemahan), Pustaka Pelajar, Yogyakarta, Social Conflict: Escalation, Stalemate and Settlement, Mc.
Graw-Hill In, p. 32 14Djoko Harmantyo, 2007.
Pemekaran Daerah dan Konflik keruangan Kebijakan otonomi daerah dan Implementasinya di Indonesia, Makara, sains, vol.
11, No.
1, p. 1622 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 114 conflicts related to boundaries of this region, among others: 1.
Juridical aspect, namely the lack of clarity in the area boundary Formation of the Regional Law.
2.
Economic aspect, namely Scramble Resources (SDA, Commercial Region / Transmigration, Plantation).
3.
Culture aspect, namely the issue of the separation of ethnic or subethnic.
4.
Politics and Demographics aspect, namely seizure of voters and the vote for the members of the Legislative / Executive.
5.
Social aspect, namely the emergence of social envy, a history of past conflicts, the issue of indigenous peoples and migrants.
6.
Government, namely the distance to the center of government, discrimination in services, the desire to join the neighboring areas.15 15Jembris Mou, Konflik Wilaya Antara Kabupaten Halmahera Utara dengan Kabupaten Halmahera Barat, Jurnal Politico Vol.2 No.6 Tahun 2015, p.3 16Brian Taylor Summer dalam Aditya Batara G & Beny Sukadis, (Editor), 2007, Reformasi Geographical and historical factors are two aspects of the other aspects that are often a reason for territorial claims.
Geography (geography) is a classic claim based on natural boundaries, whereas history (history) is the determination of a claim based on history (the first possession) or duration (length of ownership).16 Thus, necessary legal instrument to solve the problems of this region boundaries is needed.
Decentralization policies needed to be a resolution of the border conflict, by incorporating aspects strong locality as the "legal basis" argument will undoubtedly form the rules were very understanding wishes of the people involved in the conflict.
Establishing authority in the village and Affirming Limits Areas Management Reflecting the wide range of areas such as boundary disputes Blitar and Kediri, Surabaya and Gresik, things that need to be addressed further relevant authority is directly affected as a result of Manajemen Perbatasan di Negara-Negara Transisi Demokrasi, DCAF & LESPERSSI, Jakarta, p. 52.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 115 the seizure of the village of the region.
The policies issued has not been explicitly consider local knowledge as well as the evidence possessed by the community or village in dispute.
This condition is also weakened by the village itself which are less likely to have evidence of a strong and resolute in the face of the law.
The village does not have a legal product at their levels to strengthening borders, because the regulations on boundaries exist only at the lowest level in conjunction with the establishment of a local district.
So far, the government argues that the settlement boundary of the village is not the important thing and is not even becoming part of the development priorities.
Regulation of the Minister of the Land Planning (hereinafter called Regulation) governing boundary demarcation areas include provincial and district boundaries, even though the village is a region that is in direct contact with the delimitation.
If the village area is legally fixed, this automatically cause the certainty of both provincial and district boundaries.
The village only mentioned in general borders in a variety of settings that require entering the village profile, no special arrangements are periodically revised to update whether there are expansion of territory, while atural phenomena may change a territory geographically, especially areas prone to natural disasters.
The data related to the area between the villagers who owned books C village which is an excerpt of tax payments, books and maps krawangan clove, all of which were never carried out reforms if there is a change related to natural changes.
Changes in nature that occur in the geographical conditions of rural areas should be followed by the recording of even mapping activities that can be done independently by the village.
Although the demarcation area only became part of the district and provincial administrations, at the level of village administration should also be given to affirm the policy in managing its territory.
Constitutionally speaking government authority to the village, it can refer to the position of the village (or any other name), in Article 18B paragraph (2) of the 1945 Constitution which regulate: "The State shall recognise and respect their traditional communities along with their traditional customary rights as long as these remain Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 116 in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be further regulated by law".
This constitutional provision means that: a. Constitutionaly, there are differences between autonomy local government institutions from those of community b.
Matters managed by the local government unit shows the dispersion of power, while, as long as there, matters managed by the village of recognition.
c. There are also assistance task given by the District, Provincial and Central Government.
Territorial management at the village level is aimed to protect and affirm the limit and thus should be part of constitutionally recognized rights if upon such region a local wisdom exist.
Ownership conflict of Galang Islang which is contented between the Gresik and Surabaya according to Kadesh Karang Kiring, Mr. Aslimun, 17Interview with Village Chief Karang Kiring on 27 Agustus 2015 one reason is the loss of recognition historically local knowledge possessed by Karang Kiring, as an example of the mastery of the area which includes the existence of the port in The village has actually been around since the reign of Majapahit, but the recognition of the right to development is lost, as does the presence of Galang Island are historically used to blend with the village of Karang Kiring.17 Another disadvantage according to Kadesh Reef Village Kiring is never update them to the changes that occur geographically due to natural phenomena, the village does not have a map that periodically made to anticipate change.
The difficulties experienced by the village of Karang Kiring in terms of proving the management of the region, especially with regard to the use of marine space.
Karang Kiring have land and the area immediately adjacent to the sea.
Phenomena and natural phenomena that occur at sea causing changes in the region, such as erosion.
These circumstances make it difficult for villagers to make a claim against the utilization of space, although hereditary Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 117 community already utilize this marine resource, but often they were beaten by the investor-financier stronger access to the Government.18 In the case of seizure of Galang Island, not only questioned the authority of the ownership between the district and the city, but the control by employers against this Galang Island also cause horizontal conflicts associated with the interests of fishing communities in the village of Karang Kiring.
Employers in this case PT GSM concerned to increase the economic value of the resources in the agrarian Galang Island has conducted reclamation.
Reclamation activities conducted by PT GSM resulted in environmental damage and cause a reduction in the fishing village of Karang Kiring results and this threatens their livelihoods.
Boundary conflicts can be regarded as problems in the use of space, especially in terms of allocation of natural resources there.
Local residents in need of natural resources as a source of life for the continuation of their lives.
While investors who have the purpose of obtaining maximum profits tend to do 18Ibid whatever it takes to master the allocation of these resources.
Minister Regulation No.
76 Year 2012 on Guidelines of Region Emphasis (hereinafter referred to as Regulation 76/2012) specifies that the border of the provinces or districts under Article 1 paragraph (3), (4) and (5) are: 1.
Limit the area of land is a limiting administrative area between regions is a series of coordinate points that are on the earth's surface can be natural signs such as igi /the ridges /mountains (watershed), the median stream and / or elements of artificial field poured in the form of maps.
2.
Limit the area of the sea is the limiting authority in marine resource management for the area in question is a series of coordinate points measured from the coastline.
3.
Limits for certain regions in the field is a set of geographical coordinates of points that refer to national georeferencing system and establish administrative area boundary line between regions.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 118 The assertion border under Article 1 paragraph (6) Regulation 76/2012 : "The assertion is an activity area boundary determination coordinate points of the border to do with the method kartometrik and / or surveys in the field, which is manifested in a boundary map with a list of coordinates of the boundary points of the area."
Stages affirmation limit set in Article 5 of Regulation 76/2012, among others: a. document preparation; b. Tracking the limit; c. measurement and positioning limits; and d. mapmaking limits; These stages are more focused on the technical work mapping, but for this assertion involving the parties will agree on the claims over the territory so as to have a high potential for conflict.
The agreement requires the parties social peace, calm and mutual respect, and usually local wisdom on this process is condensed in rural communities that uphold the principles of mutual cooperation and consensus.
Thus the assertion of this limit becomes more efficient when done based on local wisdom directly adjacent to the main village and local community involvement.
Conflict limit even involve not only between the two areas of the province or district / city, even at the level of indigenous peoples across subdistricts are also experiencing the same thing.
As in the community and society Pingai Muaro Nagari Nagari Saningbakar Solok regency, the following: "In anthropological disputes that occur in Minangkabau society is an expression of the inherent contradictions and incompatibility of a culture that has been patterned based on opposite interests, which arise from the structure of society itself.
Boundary disputes customary villages between villagers 'Muaro Pingai the District uphold Betel and villagers' Saningbakar the District X Koto Singkarak is solved by means of deliberation of the traditional leaders of the two villages were solved by Muspika both districts, and subsequent settlement Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 119 submitted to the District Government Solok.
"19 The assertion boundary area management at the village level as well as the Village People in the mirror at persolaan among people Minangkau thus becomes essential, it does require an agreement framed in a formal setting at the level of the village or the Village People.
The enactment of Act No.
6 of 2014 on Village (hereinafter referred to as the Village Act) and its implementing regulations in Government Regulation No.
43 of 2014 (hereinafter abbreviated as PP 43/2014) became the legal basis of the argument in the form of regulations at the village level affirmation borders.
Powers stipulated in the Act allow the village to provide protection for the village over its territory, it will certainly minimize conflicts / disputes the border.
Article 18 of the Law Village gives provisions that: "The authority of the village include the authority in the field of implementation of village government, the implementation of Rural Development, Rural community development, and community 19Zusmelia MS, 2011, Peneyelesaian Sengketa Batas Ulayat Nagari antara Masyarakat Nagari Muaro Pingai dan Masyarakat Nagari Saningbakar Kabupaten Solok, Jurnal Hukum empowerment village based community initiatives, the right of origin, and customs of the village".
The fourth field is the authority given to the village is expected to make a strong village, developed, independent and democratic.
In accordance with Article 19 of Law Village fundamental changes to the authority of the village administration currently include: a.
The authority of origin based rights; b. Village-scale local authority; c. The authority assigned by the Government, Provincial Government, or the Regional Government of Regency / City; and d. Other authorities assigned by the Government, Provincial Government, or the Government District / City in accordance with the provisions of the legislation.
Article 18 and Article 19 of the Law on the Village has been set and determine what kind of authority at the village level, among other authorities in Republica, Vol.10 No.2, Fakultas Hukum Universitas Lancang Kuning.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 120 the care and regulated by the Village and authority in the care of just by the village but was assigned by the government both at central and local levels.
Article 6 of the Regulation of the Minister of Internal Affairs ear 114 numbers 2014 on Guidelines for Rural Development (hereinafter referred to as Regulation 114/2014) provides that in carrying out the construction of the village, the village government should refer to RPJMDesa (Rural Medium Term Development Plan) which includes Vision Mission Village Head and direction rural development policy.
Article 6 provides guidance on the village to hold the administration in villages based powers who owned the village.
Direction of rural development guidelines in the areas of governance based on Article 6 paragraph (2) letter a Regulation 114/2014 is the "Establishment and Assertions Village Limits".
This provision provides protection against the village on its territory, thus it should be after the birth village Village Act prioritizes the direction of its development policy to make the determination and demarcation village first.
Determination and confirmation of village boundaries is done not only as a resolution to the conflict, but become important when the village is also required to prepare and establish the Spatial Plan Village integrated into rural areas, as regulated in Article 83 of Law Village, with the following conditions : (1) Development of Rural Areas is a mix of inter-village development in one (1) District / City.
(2) Development of Rural Areas implemented in an effort to speed up and improve the quality of service, development, and empowerment of villagers in Rural Areas through participatory development approach.
(3) Development of Rural Areas include: a. use and utilization of the Village area in the establishment of spatial development in accordance with the Regency / City; b. services are being made to improve the welfare of rural communities; c. infrastructure development, improvement of the rural economy, and the Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 121 development of appropriate technologies; and d. The village community empowerment to improve access to services and economic activities.
(4) The design of the construction of Rural Areas discussed jointly by the Government, Provincial Government, District Government / City and Village Government.
(5) Rural Area development plan referred to in paragraph (4) shall be determined by the Regent / Mayor in accordance with the Medium Term Development Plan.
The obligation to carry out development of rural areas following further stipulated in Article 123 Paragraph (2) (b) of Government Regulation No.
43 Year 2014 concerning the Implementation Regulations Act Rural (hereinafter abbreviated as PP 43/2014), as follows: "Development of rural areas consist of the preparation of 20Ahmad SJA, dkk, 2009, Menuju Demokratisasi Pemetaan (Refleksi Gerakan Pemetaan spatial planning in a participatory rural areas".
Authority related to development of rural areas should have been preceded with certainty village in providing a guarantee of protection against the territory.
For the establishment and affirmation of village boundaries become important primarily to avoid or resolve conflict zone management.
To support the strengthening of legally to guarantee legal certainty for the region, both at the level of the village and the village should have done the mapping is done in a participatory manner.
Participatory mapping will certainly adjust to the real conditions in the region.20 The participatory mapping (hereinafter called PM) has two components, which include mapping and participatory nature.
The following will explain the meaning of those two components.
Determinantion of territorial demarcation and delimitation through participatory mapping is necessary to achieve legal certainty, whereas: Partisipatif di Indonesia), JKPP (Jaringan Kerja Pemetaan Partisipatif), Bogor, p. 4 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 122 1.
Participatory mapping upon the village territory will assure local community’s rights and its assets.
2.
Participatory mapping upon district territory which is envisaged within “Decision of City Major” will also assuring the certainty of territorial borders.
Participatory action of Village Government in determining its territorial borders is crucial to avoid possible conflict between local region and between community, government and business entity.
IV.
CONCLUSION Borders conflict over the Galang Island has caused both vertical as well as horizontal conflict, that is between the fishermen and private entity given the right to manage the island.
The lack of formal evidence at the village level leads to the weakness of legal protection of local wisdom.
The certainty in borders delimitation is important to be conducted until village level by planning a participatory mapping based on local wisdom accommodating possible natural changes of such territory.
The authority of Village Government in determining territorial delimitation should be recognized constitutionally as stated within Indonesian Act No.
6/ Year 2014 and Permendagri 114 Year 2014.
REFERENCES Ahmad SJA, dkk, 2009, Menuju Demokratisasi Pemetaan (Refleksi Gerakan Pemetaan Partisipatif di Indonesia), JKPP (Jaringan Kerja Pemetaan Partisipatif), Bogor.
Brian Taylor Summer dalam Aditya Batara G & Beny Sukadis, (Editor), 2007, Reformasi Manajemen Perbatasan di Negara-Negara Transisi Demokrasi, DCAF & LESPERSSI, Jakarta.
Dean G. Pruit & Jeffrey Z Rubin, 2004, Teori Konflik Sosial (terjemahan), Pustaka Pelajar, Yogyakarta, Social Conflict: Escalation, Stalemate and Settlement, Mc.
Graw-Hill In.
Djoko Harmantyo, 2007.
Pemekaran Daerah dan Konflik keruangan Kebijakan otonomi daerah dan Implementasinya di Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 123 Indonesia, Makara, sains, vol.
11, No.
1.
Ira Permata Sari, 2014, Konflik Perbatasan Pemerintah Daerah (studi kasus: perebutan gunung kelud antara pemerintah daerah Kabupaten Blitar dengan Kabupaten Kediri), Jurnal Ilmu Pemerintahan UB Edisi 08 Januari 2014.
Jembris Mou, 2015, Konflik Wilaya Antara Kabupaten Halmahera Utara dengan Kabupaten Halmahera Barat, Jurnal Politico Vol.2 No.6 Tahun 2015 Nida Zidny Paradhisa, 2012, Konflik Kepentingan Daerah: Studi Kasus Sengketa Perebutan Gunung Kelud antara Pemerintah Kabupaten Kediri dan Pemerintah Kabupaten Blitar, Jurnal Politik Muda Universitas Airlangga, Vol 2 No.1, Januari-Maret 2012 Nurbadri, 2008, Konflik Batas Wilayah diera Otonomi Daerah dan Upaya Penyelesaiannya (Study kasus Konflik Batas Wilayah antara Kabupaten Tebo dengan Kabupaten Bungo, Jurnal Masalah-Masalah Hukum, Fakultas Hukum Universitas Diponegoro, Vol.37 No.4.
Syamsul Hadi, et.al., 2007, Disintegrasi Pasca Orde Baru: Negara, Konflik lokal dan Dinamika Internasional, Yayasan Obor Indonesia, Jakarta.
Zusmelia MS, 2011, Peneyelesaian Sengketa Batas Ulayat Nagari antara Masyarakat Nagari Muaro Pingai dan Masyarakat Nagari Saningbakar Kabupaten Solok, Jurnla Hukum Respublica, Vol.10 No.2, Fakultas Hukum Universitas Lancang Kuning.
http://www.publiknasional.com/index.p hp?option=com_content&view= article&id=1464:uruk-pantai-ptgantari-sandya-mitra-diprotresnelayan&catid=36:jawa-timur, diakses pada 27 Mei 2015 Undang-Undang Dasar 1945 Undang-Undang Nomor 6 Tahun 2014 tentang Desa Undang-Undang Nomor 23 Tahun 2014 tentang Pemerintahan Daerah Peraturan Pemerintah Nomor 43 Tahun 2014 Tentang Peraturan Pelaksanaan UU Nomor 6 Tahun 2014 Tentang Desa Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 124 Peraturan Menteri Dalam Negeri Nomor 114 Tahun 2014 tentang Pedoman Pelaksanaan Pembangunan Desa
Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 200 THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT, HUMAN RIGHTS AND GOOD GOVERNANCE Subir Kumar Roy1 Assistant Professor, Law Department, Bankura University, Bankura, West Bengal ABSTRACT Sustainable development leads the society towards a new orientation and hammers on our cognitive faculty to see the perspectives of development in a new form which requires the radical change in social economic and political perspectives and thus gives birth of sustainable governance.
Environmental governance is a precise term indicates towards the activities of various institutions and structure of authority related to protection of natural environment.
Environmental governance and the sustainable governance are not same.
The former aims to involve government, individuals, industries, civil societies, Internationals and non-governmental institutes in policy formulations and decision making process in environmental performances to face the challenges of the globalised world and to curb pollutant.
On the other hand governance for sustainability is value based and advocates for the preservation of integrity of ecology of the Earth.
The approach of Sustainable governance is very specific and target oriented i.e.
save the planate, promote human development and achieve universal prosperity and peace.
But still we have not been able to achieve the above targets despite of having a number of conventions, treaties, and covenants etc.
Furthermore the theme of ‘green economy’ of Rio+20 is a contested concept and the critiques apprehend that it may downplay the concept of sustainable development.
Under the above backdrop this paper intends to scan the global initiative towards ensuring sustainable governance and will also make analysis that whether still the focus of the UN is pointed on sustainable governance or wandering in jugglery of brown and green economy.
Keywords: development, sustainable development, environmental governance, sustainable governance, human right, green economy 1 I.
INTRODUCTION The term development has many facets and have been used by the economists, politician and others frequently in the 20th century and often equated with the terms like 1 Assistant Professor, Law Department, Bankura University, Bankura, West Bengal modernization, industrialisation, westernization, urbanisation etc.
though no one is sure about the origin of the term but the concept got impetus with the evolution of capitalism over feudalism.
Generally development is used as a Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 201 yardstick to get rid over the profound social problems especially poverty, unemployment and to ensure amenities, social security etc into the life of the people.
It empowers people to maximize their capacities, resources and opportunities.
“Development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from,”2 DRD recognises that human being is the central subject of the development process and right to development is an inalienable human right.
There exists a rock solid relationship in between development and economics.
Development has often been reckoned in terms of economic growth.
This is an age old concept that the policies which led to growth are happens to be pro development and good.
The underlying object behind this idea is to generate wealth rapidly for ensuring prosperity as it widens the ‘realm of 2 UN Declaration on Right to Development, 1986 possibilities.” But this pattern of development always tends towards negative development as it does not take care towards the depletion of the natural resources.
It never computes the costs needed to mend the ecosystem affected by the so called development to generate wealth.
So development neither should allow unplanned and inequitable development nor should affect the equilibrium what exist in between the different components of the nature.
What right the present generation, irrespective of their caste, class, creed, sex etc.
has over the natural resources, the future generation should also have the similar right and the mechanism through what it is sought to achieve, is sustainable development.
Sustainable development (SD) lies in between the two extremes of ‘no growth’ and ‘unlimited growth’, which ensures optimization of utilization and equitable distribution of natural resources.
The sustainable development conceived of as integrating three subjects, which are environmental law, human rights law and economic law.
The effective coordination of these three can only effectuate the concept of Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 202 sustainable development.
It provides a new understanding about the quality of life which is no longer remain confined within the gamut of material wealth or tangible prosperity rather flourished in true sense in the situation where interaction happens among the environmental, the social and economic dimension of the society.
Sustainable development advocates for three dimensional values i.e.
the economic, social and environmental.
So SD leads the society towards a new orientation and hammers on our cognitive faculty to see the perspective of development in a new form which requires the radical change in social economic and political perspectives and thus gives the birth of the concept of sustainable governance.
II.
RESULT AND DISCUSSION Sustainable Development: A Step Towards Balanced Development The word sustainable is derived from the Latin word ‘sustinere’ which denotes a sense of support in both physical and emotional terms and more precisely connotes maintainable or endurable.
Concise Oxford Dictionary defines ‘sustainable’ as able to be sustained and ‘sustain’ as keep going over time or continuously.
It has the continuity dimension.
The word ‘sustainable’ is generally used as prefix or suffix (mainly prefix) as it is used in the title of the present article and restrain from any unsustainable pattern of activities such as erosion of Forest, inequitable economic growth, materialistic prosperity without considering the environmental perspectives, indiscriminate and ruthless exploitation of natural resources etc.
On the other hand the term ‘sustainable development’ indicates towards holistic and balanced approach towards development.
SD is a kind of mechanism which aims at ensuring economic development only by fulfilling the requirements of protection of environment.
Sustainability refers to the synthesis among ‘triple bottom line’ namely environmental, social and financial.
A demand for good life requires a livable physical environment, economic opportunity and a just social order.
It has intertwined the ecological issues with social justice and economics.
It is no longer purely confined in environmental consideration rather it has become the pragmatic yardsticks of development both in terms of process and outcome and gives emphasis that if a Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 203 development has to be sustainable it must meet certain requirements such as clean water and sanitation, adequate shelter, energy, health care, food security, protection of bio-diversity, green economy etc.
Sustainability deals with the balanced development.
The term sustainable development become a familiar topic in 1990’s, more comprehensively after the introduction of Brundtland Report and got impetus after the introduction of United Nations Conference on Environment and Development which clarifies that the aim of SD is to establish the linkage among environmental protection, economic development and social inclusiveness.
The very philosophy of sustainability suggests that human survival is closely associated with the ecological integrity of the earth.
SD can be defined as the core element of law and governance.
Here it is worthwhile to quote some observation from the separate opinion of VicePresident Christopher Gregory WEERAMANTRY in GabcikovoNagymaros project case i.e.
Hungary v/s 3 Judgment, ICJ, Reports 1997, P-7 Above case was related to the differences that had arisen in between the Czech and Slovak Federal Republic and the Republic of Hungary Slovakia case3 related to SD, “Sustainable development is thus not merely a principle of modern international law.
It is one of the most ancient of ideas in the human heritage.
Fortified by the rich insights that can be gained from millennia of human experience, it has an important part to play in the service of international law.” Vice President WEERAMANTRY had viewed SD as a reconciling agent in between development and protection of environment and observed, “The problem of steering a course between the needs of development and the necessity to protect the environment is a problem alike of the law of development and of the law of the environment.
Both these vital and developing areas of law require, and indeed assume, the existence of a principle which harmonizes both needs.
To hold that no such principle exists in the law is to hold that current law recognizes the juxtaposition of two principles which could operate in collision with each other, without regarding the implementation and termination of treaty on the construction and operation of the GabsikovoNagymaros barrage system signed in Budapest on 16th September, 1977.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 204 providing the necessary basis of principle for their reconciliation.
The untenability of the supposition that the law sanctions such a state of normative anarchy suffices to condemn a hypothesis that leads to so unsatisfactory a result.
Each principle cannot be given free rein, regardless of the other.
The law necessarily contains within itself the principle of reconciliation.
That principle is the principle of sustainable development.4” In the above case5 it has been observed by the ICJ that the court is mindful that in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitation inherent in the very mechanism of reparation of this type of damage.
The ICJ opined, ‘throughout the ages, mankind has for economic and other reasons, constantly interfered with nature.
In the past this was often done without consideration of the effects upon the environment owing to new scientific insights and to a growing awareness of the risk for mankind for the present and future 4 ibid 5 ibid generationsof pursuit of such intervention at an unconsidered and unabated pace, new norms and standards have been developed set forth in a great number of instruments during the last two decades.
Such new norms have to be taken into considerations and such new standards given proper weight not only when state contemplate new activities begun in the past.
This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.’6 The purpose of sustainable development is to improve the quality of human life while living within the carrying capacity of the earth’s ecosystem.
It claims equity within the present generation.
The poorer section of the society are the worst sufferer of the environmental hazards and compelled to lead unhygienic way of life which the society often termed as the consequence of bad fate.
As per the first principle of Rio Declaration 1992 human beings are the center of concern for the sustainable development.
They are entitled to have a worthy and healthy life but in harmony with nature.
6 ibid Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 205 Barbier (1989) refers SD as optional level of interaction between three systems, the biological, the economic and the social.
SD while measuring the maximum net benefits of economic development, also computes the costs of service and quality of natural resources in the sense that a material benefit is always gained at the cost of the exploitation of natural resources which definitely carries huge costs.
Behind all material prosperity exploitation of natural resources is obvious and natural too and for that reason at what costs of resources that happiness has been achieved needed to be counted otherwise the prosperity of the moment will be converted into the destruction of ever.
It is the high time to consider and recognise that environmental improvement are equivalent to economic development.
SD advocates for a system which can ensure protection of human needs, economic growth and growth of natural capital and thus explores a new outlook and dimension of Economics.
Development informs material prosperity by exploring and exploiting natural resources but sustainable development takes care of social, ecological and economic factors of biotic and abiotic resources along with the assessment of advantage and disadvantage of alternative methods.
When we say about the conservation of resources it suggests about the management of resources with prudence so as to ensure greatest sustainable benefit to present generation but without compromising with the needs and aspirations of future generation.
So the term conservation is always used in ‘positive’ sense which gives emphasis on better and careful utilization of resources and also restoration and enhancement of natural resources.
SD is integration of conservation and development which reminds us that,’ we have not inherited the earth from our parents; we have borrowed it for our children.’ SD is also viewed as an interaction among three systems, the biological and resource system, the economic system and the social system.
It is a positive development of economy after taking into consideration the ecological imperatives against economic growth.
SD is not against of economic growth as in no way they are contrary to each other rather it simply places a stipulation that economic growth should not be antagonistic to our ecology.
Our economic initiatives should not be devoid of environmental issues and Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 206 concerns.
Material prosperity has been achieved at the cost of the exploitation of natural resources, so now it is the high time to plan and manage our economic activities in such a way so that it will both economically and environmentally viable and sustainable.
So SD is a kind of technique associated directly with the values of our life which tells us to bring changes in our behavioral pattern, conduct, outlook and also to bring transformation in our though process.
All our activities, be it is economic, social or cultural must be directed towards the achievement of sustainable way of life.
Still we perceived development as production of materialistic wealth overlooking our greatest wealth i.e.
natural resources on which our very existence and survival depends.
Due to our defective consumption pattern we are slowly destroying the habitat.
SD advocates for a positive socio-economic development without undermining the ecological imperatives and that development must be for all so that growing disparity in between haves and have-nots may be minimized.
It gives emphasis upon equitable access of natural resources.
SD is a concept needed to be applied in every sphere of life and cannot be achieved in an isolated way.
Our socio-economic and political structure is needed to be restructured to create space for SD.
SD is also closely associated with our culture.
Policy of a nation should be equipped with environmental benign measures to restrain the eco-destructive steps.
Sustainable processes are deeply associated with the values of our life.
Economic growth without considering the ecological imperatives invites negative development.
Some critics often termed the development caused through industrial revolution as negative because the menace of pollution has taken such a gigantic shape whereby the very existence of the human being is at stake and if immediate measures for protection of environment will not be taken in nearby future the whole human race may extinct.
Certainly we should not welcome that development which will become ultimately a threat to our existence and the whole race in at peril.
SD never throws the message to retreat towards forest or to enter into the stage of primitive society because we will not be able to accommodate ourselves with that very situation and thus that will invite a new dimension of pollution.
It is true that Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 207 we cannot survive without exploiting the natural resources but that is needed to be done with prudent, which is the core message of SD.
Pollution of course is a resultant of industrialisation, motorisation, mechanisation but this is also a grim reality that the menace of pollution can only be curbed by further advancement of science and technology.
A democratic society allows the people to explore their potentialities and creativeness and which is only possible where there exist quality environment.
A democratic society honours the values of the people with which they want to live with.
Furthermore, the cardinal duty of a democratic government is to ensure the well being of the people as well as to offer them quality life.
The pre-requisite stipulation of quality life involves with the other things the demand of having clean air, clean water, fresh food and peace of mind which cannot be achieved without restraining pollution.
So sustainability refer a value based sociopolitical system along with a well neaten economic structure which can minimize the economic disparity and also ensures each fulfill their needs as per their requirements.
In this respect the term ‘justice’ and ‘sustainability’ may claim the same status as both are based on certain ethical issues, values and principles.
Unsustainable pattern of development and treatment of natural resources invite miseries into the life of the people in long run and from that perspective it is unjust too.
However some scholars believe that instead of having parity in between justice and SD the disparity among the two is more prominent and thus they prefer to highlight the contradiction and inconsistency of each other.
In favour of their logic they claim that justice demands that the immediate need of human being should be given utmost favour than right to environment.
Right to food, right to have livelihood, right to development, eradication of poverty etc.
should get importance over right to have pollution free environment.
These scholars are neither against the protection of environment nor do ignorant about the immediate danger of growing pollution in our planet but they simply intend to give priority to basic needs of people such as food over long term environmental concerns.
They believe that protection of environment is for people and not from people.
The issue is no doubt touchy but without having any substance.
There lies no inner contradiction among basic needs of the Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 208 people and Right to pollution free environment when we will perceive the whole matter from right centric approach.
The question of priority arises whenever we will consider the things from need based point and needless to mention need centric approach is now overruled by right centric approach.
Right to have food or to carry on livelihood or eradication of poverty is very much complementary of right to have quality environment.
Poverty is the biggest source of pollution and if we have to curb the gigantic menace of pollution we have to ensure right to development too.
Right to life cannot be ensured without ensuring clean, descent, hygienic and pollution free environment.
SD exposes the complementary chemistry of right to development and right to proper environment and ultimately leads us towards a dignified life.
So sustainability has a wide dimension which covers the different aspect of the life of the people.
However due to this vastness it is often criticized as vague idea, which is essentially a wrong perception comes from ignorant.
SD is not hinderance to economic growth rather it ensures a qualitative and durable long term benefit to the mankind by clarifying the fact about the costs incurred due to degradation of environment or costs associated with the exploitation of natural resources and tells us to incorporate the same while computing the GDP and GNP.
It is based on a firm principle that natural resources and environmental services cannot be undervalued and should be provided with proper or just prices.
Ecological depletion often causes economic depression and reverse is also often become true.
Many a times defective market strategies and wrong policies cause ecological and environmental damage.
When we cut a tree for timber, market seldom cares about its role in soil protection, microclimate control, protection of habitat, control of runoff while fixing its price.
The above illustration indicates the defective market policy.
SD links the right to development and the right to secure healthy and ecologically sound environment.
Today SD is not only holding the key position in International Environmental Law rather also possessing important position in International Trade Law and Human Rights Law.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 209 Sustainable Governance And Global Environmental Challenges Governance refers to activities backed by comprehensive shared targets, achieved or caused to be achieved through interactions among formal and informal institutions and actors within society.
It is often linked with participatory developments or described as social relationship within a political entity.
Good governance ensures and promotes participations of all the actors in the society in achieving equity, transparency, greater accountability, pluralism , vibrating rule of law with a true democratic spirit, which may only curb corruption, violence and poverty etc.
effectively.
Environmental governance is a precise term indicates towards the activities of various institutions and structure of authority related to protection of natural environment.
Environmental governance and the sustainable governance are not same.
The focal point of environmental governance is the way society deals with the problem of environment.
It aims to involve government, individuals industries, civil societies, Internationals and non-governmental institutes in policy formulations and decision making process in environmental performances to face the challenges of the globalised world and to curb the pollutant.
On the other hand governance for sustainability is value based and advocates for the preservation and maintenance of integrity of ecology of the Earth.
While environmental governance intends to formulate the mechanism to ensure protection of environment, the approach of Sustainable governance is very specific and target oriented i.e.
save the planate, promote human development and achieve universal prosperity and peace.
Environmental governance includes both eco-centric approach and anthropocentric approach whereas sustainability interlinked four key concepts – population, resource, environment and development.
Sustainable governance can be used as an effective tool to face the global challenges as still a large chunk of population of the world is fighting with the hunger, poverty, basic amenities of life i.e.
food, cloths, shelter, water, health facilities, sanitations coupled with the horrible environmental degradation.
A considerable number of populations are compelled to become the marginalized group as they fail to explore their potentialities due to the lack of educational, socio cultural and political Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 210 opportunities.
The menace of poverty is not only responsible for causing health problems or mal-nutrition to the poorer section of the society but their very life style what they compelled to adopt also causes depletion of natural resources, contamination of water, spread of deadly diseases and misuse of energy.
Unplanned, irrational and discriminatory policies of the Governments affect the distributive justice and as a consequence a large chunk of people become marginalized group due to the lack of liquidity.
Social inequality is a determining factor behind the environment injustice.
Major industrial operations are being carried on in the areas, inhabited by the lower income groups and as a matter of fact the poor people are not only compelled to compromise with pollution at the cost of their life rather it also lays birth to the problem of migrants.
Eradication of poverty and hunger are a greatest global challenge and are sine-qua-non for sustainable development.
Poverty and hunger never allow the people to live with dignity and causes impediments into the way of sustained, inclusive and sustainable growth.
The countries within the globe and among the citizens within the country are facing extreme disparity in the matter of generation of wealth and opportunities.
The global issues like the gender inequality, unemployment, rising health disorders, scarcity of foods, loss of biodiversity, scarcity of clean air and fresh water, lack of sanitation facilities, depletion of natural resources, environmental degradation, global warming, climate change etc.
are a matter of serious concern and great challenges to sustainable development.
Growing unrest and intolerance among the people of different part of the globe along with the issues like terrorism, armaments including rising experiments of development of nuclear devices for war is not only causing the serious humanitarian problem rather also posing a serious threat to environment.
Now a day the problem of global warming become a serious threat to life and if it will not be checked then the life of many species including human being may be at peril.
Increasing temperature is rapidly changing the climate and as a consequence the sea level is rising and thereby affecting the coastal areas and low-lying coastal countries.
Here it is pertaining to mention about the resolution of the General Assembly on ‘Transforming Our World: Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 211 The 2030 Agenda for Sustainable Development’ fixes 17 sustainable goals to achieve sustainable pattern of consumption and production and sustainable management of natural resources in order to ensure sustainable development7.
These seventeen sustainable goals are to end poverty and hunger, achieve food security, ensure healthy lives, provide equitable quality education, gender equality, sustainable management of water and sanitation, sustainable energy, sustainable economic growth, build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation, reduce inequality, Make cities and human settlements inclusive, safe, resilient and sustainable, ensure sustainable consumption and production, urgent action to combat climate change, sustainable use of water-bodies, Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, save land degradation and control biodiversity loss, promote peace and justice and to promote global partnership for sustainable development.
7 See https://sustainabledevelopment.un.org/post2015/ transformingourworld (accessed March, 02, 2015) The goals chalked out by the above 2030 Agenda for Sustainable Development8 clarifies about the main environmental challenges before the world.
So to achieve sustainable development, the world polity is required to address the global challenges as sets up by the Transforming Our World: The 2030 Agenda for Sustainable Development9` Sustainable Development And Human Right; Complimentary Or Contradictory Both the right to environment and human rights intends to achieve the highest quality of sustainable life for humanity.
Keeping the above proposition in mind general Assembly by setting the agenda ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ resolved to end poverty and hunger in all its forms and dimensions, and to ensure that all human beings can fulfill their potential in dignity and equality and in a healthy environment10 Furthermore, it proclaims to inform prosperous life for all by ensuring economic, Social and technological progress in harmony with 8 ibid 9 ibid 10 Preamble of Transforming Our World: The 2030 Agenda for Sustainable Development Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 212 nature11.
And for that end it is determined to protect the planet from degradation by initiating the scheme of sustainable consumption and production, sustainably managing its natural resources and taking urgent action on climate change in order to support the needs of present and future generation12.
It is axiomatic that development or prosperity of all is impossible without taking care of human right because human rights are such rights without which the very existence of the human life will be at peril.
We know due to this factor human rights are considered as inalienable rights or natural rights as it enables the human being to explore their potentiality to fullest extent.
For the proper development of our personality we require a human environment which will not only ensure the respect towards the dignity of the life of individual along with the notion of liberty equality, justice etc.
rather also gives the guarantee of quality of life.
Earlier we interpreted the term development from the sense of our limited knowledge and we confined it within the concept of materialistic prosperity or materialistic gain.
With this kind of immature 11 ibid understanding we welcome and intensified industrial revolution which no doubt accelerated production and bring hospitality and amenities to life but at the same time invited a gigantic menace like the environmental pollution as its by product whereby the very existence of the human being is in danger.
We fail to foresee the negative development behind the economic prosperity informed by the industrial revolution and that is why the environmental pollution has reached in such an appalling and alarming stage and if it will continue without changing our attitude and approach towards the chemistry of nature or the eco-system then the days are not far when the whole human race may extinct.
So without having the pollution free environment we cannot enjoy the quality life.
Clean air, pure (drinking) water, proper sanitation and sewage system, adequate shelter, energy, health care, hygienic life style, sufficient and nutritious diet are prerequisite of quality life and to attain this quality life we require a mechanism which can reconcile and integrate among development, protection of environment and human rights and to many SD is the 12 ibid Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 213 potent weapon to make a balance among economic, social and environmental goals of the globe.
Sustainability is ‘a higherorder social goal or fundamental property of natural or human system13 Bosselmann conceived SD as a fundamental principle to guide human conduct with respect to natural systems14.
The scope of sustainability has many dimensions under which it performs the liability of maintaining the integrity of biophysical systems to offering better services to more people, to provide freedom from hunger and deprivation, as well as choice, opportunity, and access to decision making which are aspects of equity within and across generations (Kemp et al: 2005)15.
So sustainability clarifies about the interrelation what exist among environmental, economic and social systems.
The approach of SD is always to give emphasis on human development by incorporating eco centric notion towards environment and 13 B.J.
Richardson,B.J.
and Wood, S. ‘Environmental Law for Sustainability’ in Environmental Law for Sustainability (Hart Publishing: Oxford, 2006), p.13 quoted in Bosselmann, Klaus, Engel, Ron and Taylor, Prue.
(2008).
Governance for Sustainability – Issues, Challenges, Successes.
IUCN, Gland, Switzerland.
P-7 14 Bosselmann, Klaus, Engel, Ron and Taylor, Prue.
(2008).
Governance for Sustainability – from the Human Development Report, 2009 we know human development is about enlarging human choices which focuses richness of human life rather than simply the richness of economics.
Right to life which is the cornerstone of human rights not only advocates for the civil, political, economical, social, or cultural autonomy but also advocates about the environmental autonomy whereby the people can breathe full oxygen, drink clean water and get fresh and hygienic food.
Without having the guarantee of above human being neither can be able to live with dignity or respect nor can be able to lead a healthy life.
As per the Human Development Report 201516 human development is jolted by the multiple factors like epidemics, by emerging health risks, by economic and financial crisis and by food and energy insecurities.
As per the above report17 noncommunicable or chronic diseases become global health risk, killing 38 million people each year and among Issues, Challenges, Successes.
IUCN, Gland, Switzerland.
P-7 15 Ibid 16 See http://www.in.undp.org/content/dam/india/docs/ GHDR2015/GHDR-2015-English.pdf (Accessed 8th March, 2016) 17 Ibid Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 214 them three quarters (28 million) from low and middle income.
As per the statistics of the said report18 almost 30 percent of the world people are obese and more than three-fifths of them are from developing countries.
The Human Development Report 201519 further states that the world communities are becoming more vulnerable to the effects of climate change, including the loss of biodiversity and millions are affected by natural disaster.
More than 660 million people use an unimproved source of drinking water, 2.4 billion people use an unimproved sanitation facility and nearly a billion people resort to open defecation20.
Worldwide 795 million people suffer from chronic hunger, 11 children under age, 5 die every minute and 33 mothers die every hour.
About 37 million people live with HIV and 11 millions with tuberculosis21.
This horrible picture of human development 18 Ibid 19 Ibid 20 Human Development Report 2015, supra note 16 21 Ibid 22 The United Nation Conference on the Human Environment, 1972 proclaims in para-2 that: The protection and improvement of the human environment is a major issue which affects the well-being of peoples and economic development throughout the world; it is the urgent desire of the peoples of the whole world and the duty of all Governments.
See clarifies that how right to environment and human rights are closely associated with each other.
Poor environment badly affect the human rights and deprivation of human right makes the environment vulnerable for human existence.
The United Nation Conference on the Human Environment, 1972 popularly known as Stockholm Declaration, 1972 highlighted the liaison in between human rights and right to environment by proclaiming in para-2 that well being of people and economic development is directly related with the protection and human environment22.
It further proclaims in para-4 that underdevelopment is the causation of most of the environmental problems in developing countries23.
The above paragraph not only highlights the need for development for all round development of the potentiality of human being but also for the protection http://www.unep.org/documents accessed, 8th March, 2016 23 The United Nation Conference on the Human Environment, 1972 proclaims in para-4 that: In the developing countries most of the environmental problems are caused by underdevelopment.
Millions continue to live far below the minimum levels required for a decent human existence, deprived of adequate food and clothing, shelter and education, health and sanitation.
Therefore, the developing countries must direct their efforts to development, bearing in mind their priorities and the need to safeguard and improve the environment… ibid Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 215 of environment.
Though the term SD has not been popularized through Stockholm Declaration but of course it introduced the concept of SD successfully though the above general observations.
Principle-124 of the above summit established the blow out of proportion that quality environment permits a life of dignity and well-being.
Similarly the Rio Declaration on Environment and Development, 1992 admitted in its Principal-125 that human beings are at the center of concerns for SD and they are entitled to a healthy and productive life in harmony with nature.
Principle 3 of Rio declaration mandates that development should be initiated in such a way so as to equitably meet the needs of present and future generations which is the basic requirement of sustainable development and principle 4 clarifies that environmental protection should be considered as integral part of the developmental process otherwise it would be impossible to achieve sustainable development26.
Rio 24 “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations…” ibid 25 The United Nations Conference on Environment and Development, 1992, see Declaration also highlighted the proposition that sustainable development is a means to attend the higher quality of life and that is why principle-8 of it gave emphasis on elimination and reduction of unsustainable patterns of production27.
Similarly Johannesburg Declaration on Sustainable Development, 2002 vowed the future generation to provide them the world free of the indignity and indecency occasioned by poverty, environmental degradation and pattern of unsustainable development28.
Accordingly Johannesburg Summit considered economic development, social development and environmental protection as the foundation of sustainable development.
Johannesburg summit committed to fulfill the basic requirements of human beings as such clean water, sanitation, adequate shelter, energy, health care, food security and the http://www.unep.org/documents.multiling , accessed 9th March, 2016 26 Ibid 27 Ibid 28 Para 3 of Johannesburg Declaration on Sustainable Development, 2002, see http://www.unmillenniumproject.org/documents /131302_wssd_report_reissued.pdf Accessed 9th March, 2016 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 216 protection of biodiversity29.
It has also detected the major threats to SD which include chronic hunger; malnutrition; foreign occupation; armed conflict; illicit drug problems; organized crime; corruption; natural disasters; illicit arms trafficking; trafficking in persons; terrorism; intolerance and incitement to racial, ethnic, religious and other hatreds; xenophobia; and endemic, communicable and chronic diseases, in particular HIV/AIDS, malaria and tuberculosis and committed to fight against all the above menace30.
It has also given stress on effective, democratic and accountable international and multilateral institutions to achieve sustainable development31.
So the above stand and commitments of Johannesburg Summits not only exposes the proximity in between the right to environment and human right it also mandates for the need of good governance which should be effective, democratic, accountable, transparent, sensitive, stable and responsive one to achieve the sustainable goals.
29 Para-18, Ibid 30 Para 19, ibid 31 Para31 The General Assembly in it’s “The future we want –Outcome document” popularly known as the outcome of Rio+20 summit32 renew its commitment to SD but at the same time remarkably shifted the notion of SD from anthropocentric approach to eco-centric approach i.e.
first time Rio+20 gave emphasis on ‘Green Economy’33.
It affirms that democracy, good governance and the rule of law at the national as well as international level coupled by an enabling environment are sine-qua-none for SD34.
Rio+ 20 also gave emphasis upon the relationship in between the human right and the SD and considered poverty, hunger, unequal distributive system, gender discrimination, energy crisis, growing health problems etc.
as greatest impediments into the path of SD.
It is axiomatic that SD and human rights do not confront rather supplement or complement to each other.
Sometimes from different quarter the attempt is made to portray the contradiction in between the SD and human rights but this inner conflict in 32 See https://sustainabledevelopment.un.org/ Accessed 9th march, 2016 33 Para 12 of ‘our common vision’, ibid 34 Para 10 of ‘our common vision’, ibid Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 217 between the two becomes prominent when we compare the two with need based approach which is absolutely wrong perception within it.
Human rights and SD are totally devoid of having any such contradiction when we compare the two with right centric approach.
Both the human rights and an enabling environment are required to lead a meaningful as well as dignified and quality life.
III.
CONCLUSION In spite of having the plethora of environmental laws both in national and international levels we are witnessing the severe scarcity of enabling environment as in many parts of the globe the quality of environment is alarmingly decreasing.
Along with the crisis of quality environment the world is also witnessing the problem of poverty, hunger, gender discrimination, Inequality, growing intolerance, political unrest in different parts of the globe.
The very idea behind the SD is to protect and conserve the environment in such a way which in turn can be used for development of economy and a positive and strong economy will 35 Mark Whitehead, Spaces of SustainabilityGeographical perspectives on the sustainable society Taylor & Francis e-Library, 2006 be used for eradication of poverty and social injustice and the above process will ultimately help in the field of environmental management35.
But the above approach of SD has been criticized by the propounders of green thinking mainly the deep ecologist like Arne Naess propounded that SD cares for environment to inform well being of human being and consider the environment as a tool for procuring social and economic benefit and thus the edifice of SD stands on anthropocentric approach.
On the other hand deep ecologist who advocates about the green economy always supports the ecocentric approach i.e.
to take care of the nature for nature’s sake and not to judge the environment in terms of the well being of the human being.
Eco-centric approach gives stress on giving priority to fulfill the ecological demand.
Now in context of the above if we scan the outcome document of Rio+20 i.e.
‘Future We Want’ it appears a kind of confusing document whereby in one aspect it vows to carry on the legacy of Stockholm Declaration Earth Summit, Agenda 21, Johannesburg summit and in Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 218 other way it is claiming the motto and goal of Future We Want’ is the incorporation of green economy.
To many scholars and economists the concept of green economy is a kind of bleak matter and nobody knows how far it is possible to conceptualise it in reality.
Of course the green thinking was there in almost all the summits on sustainable development before the Rio+20 but none of them advocates incorporating any particular kind of economy.
No doubt SD indicates towards particular mode of economy but sufficient flexibility, options and alternatives remains there which give autonomy to the states to carry on the planning related to their economic affairs.
As we know SD only demands some kind of integration among the economic, environment and social issues.
According to the Achim Steiner, United Nation’s Under Secretary General and Executive Director, Inclusive Green Economy suggests, such an economy is low carbon, efficient and clean in production, but also inclusive in consumption and outcomes, based on sharing, circularity, collaboration, solidarity, resilience opportunity and interdependence.
As per the study of UNEP a green economy is one whose growth in income and employment is driven by public and private investments that reduce carbon emission and pollution, enhance energy and resource efficiency and prevent the ;loss of biodiversity and ecosystem services.
No doubt, green economy is needed for enabling environment but the developing countries mainly G77 along with China are opposing the above approach as they are seeing the politics of the developed country behind Green Economy, as a measure to dominate the economy of them in a new fashion and mode.
According to the developing country including India the concept of green economy is bias towards environment and it should be confined within the SD and poverty eradication programme.
The developing countries are reluctant to accept the concept of green economy as they are apprehending that in the name of such economy the developed country may affect their developmental activities.
Many critics say that one of the prerequisite conditions of the success of SD is to grow cooperation in between developed and developing countries and technological as well as monetary assistance by the developed countries to developing countries for carrying on the modern scientific research and also for Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 219 development of science and technology to combat with the pollution.
But due to the recent world wide recession the developed countries have taken the austerity measures regarding fund transfer to developing countries for the purposes as mentioned above.
Critics say that due to financial crunch the developed countries by using the platform of Rio+ 20 intended to shift the lens of the globe from sustainable development to green economy.
Still the people around the globe are still in dark about what matters are included or excluded from green economy.
So, some kind of ignorance about green economy is still persisting and it shows lack of governance too on the part of UN.
Good governance will never allow to raise any such bleak situation as it involve the people of different sectors along with the governmental mechanism, different organisations etc.
in decision making process and thereafter place a matter with legal certainty so that it can be enforced with proper legal mechanism and with consensus what was lacking in Rio+20 declaration.
To implement and strengthen the concept of SD the UN and its various agencies should take effective participation in making global and responsive citizen, should involve in the academic discourse with the students and academicians of the different part of the glove.
Intensifying mass awareness programme and should promote research activities for advancement of science and technology to ensure SD.
The above steps will surely lead towards Good governance.
REFERENCES B.J.
Richardson,B.J.
and Wood, S. ‘Environmental Law for Sustainability’ in Environmental Law for Sustainability (Hart Publishing: Oxford, 2006) Mark Whitehead, Spaces of SustainabilityGeographical perspectives on the sustainable society Taylor & Francis eLibrary, 2006 Bosselmann, Klaus, Engel, Ron and Taylor, Prue.
(2008).
Governance for Sustainability – Issues, Challenges, Successes.
IUCN, Gland, Switzerland Macrory (2010) Regulation, Enforcement and Governance in Environmental Law (Hart Publishing Paperback) Holder and Lee, Environmental Protection, Law and Policy Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 220 (Cambridge University Press, 2007) Ball and Bell on Environmental Law (OUP 7th ed.)
Birnie patricia , Boyle Alan and Redgwell Catherine , International Law and the Environment , 3rd edition , Oxford University Press.
Stranks Jeremy, The A-z of the Environment, Viva Books Publictio
36 | DOI: http:// doi.org/10.21776/ub.blj.2021.008.01.03 Land Procurement for Upstream Oil and Gas Business Activities in Indonesia Subadi Faculty of Law, Merdeka University of Madiun Email: subadi@unmer-madiun.ac.id Submitted : 2020-10-30 | Accepted : 2021-04-26 Abstract: This paper aims to provide an understanding and insight regarding land procurement for oil and gas exploration activities and the development of regulations or legal and policy breakthroughs that have so far not been or very little exposed.
Land procurement has always been a serious obstacle or obstacle to oil and gas exploration activities in Indonesia.
Land procurement for oil and gas exploration using a business to business (B to B) mechanism makes it very difficult for SKK Migas and the contractor.
In recent years, the government has made legal breakthroughs to simplify and accelerate the land procurement mechanism for exploration activities.
This study uses a normative juridical method supported by in-depth interviews with legal experts, land acquisition committees, and landowners and has produced conclusions: First, the business to business (B to B) mechanism often faces obstacles and obstacles, such as; 1) refusal from the landowner; 2) inconsistency with the spatial layout; 3) there is a land dispute with other parties; 4) it is difficult for oil and gas contractors to process land certification.
Second, discretion is considered as a legal breakthrough or new policy that is ideal in helping to smooth and accelerate the process of oil and gas production in Indonesia.
Keywords: land procurement; upstream business; oil and gas; Indonesia.
I.
INTRODUCTION The oil and gas crisis in Indonesia continues to be a national problem that cannot be easily resolved.
Since the middle 1990s, oil production has continued to decline,1 it also happened on gas production too, making it difficult to achieve the target of simply meeting domestic needs.
This forces Indonesia to make a very difficult choice to continue importing oil and gas.
1 Mirza Karim, Karen Mills and Intan Ajrina Qadrya, ‘Indonesia and OPEC’, (2016) 9, Journal of World Energy Law and Business, p.171-172 Indonesia was forced to quit the OPEC membership, which had long raised the name of the Indonesian nation as a respected country in the forum of oil and gas producing countries.
Sixty percent of oil and gas resource business activities are carried out on land and, of course, require land.
So far, land acquisition for upstrea2 oil and gas business activities has been obtained through the 2 Article 1, Number 7 of Law Number 22 Year 2001 on Oil and Gas, Upstream Business Activities are mailto:subadi@unmer-madiun.ac.id Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 37 business to business (B to B) mechanism, which makes it difficult for the Special Task Force for Upstream Oil and Gas Business Activities (SKK Migas) and the Oil and Gas Cooperation Contract Contractor (KKKS) to manage land certification.
As a result, the oil and gas business seems to run in place.
Land procurement should be carried out by means of an easy, fast, effective and efficient mechanism, but in reality it is much more difficult 3 , convoluted and requires a long time.
Therefore, it has a negative impact on disrupting the target production time which has a direct impact on the course of oil and gas production.
Land procurement has always been a serious obstacle, and is often the scapegoat 4 , delaying oil and gas production from the agreed agreement or contract and has an impact on cost recovery.
For example, what happened in the Cepu Block, Bojonegoro, the production target was set in May 2014 with an average of 20,00030,000 barrels per day, but it turned out that until October 2014, it had not been able to produce.
This is because the land acquisition process has encountered problems in the field.
The land has been controlled by speculators, while landowners are difficult to find.5 The issuance of Law Number 2 of 2012 concerning Land Acquisition for Development for Public Interest (Law No.
2 of 2012), apparently does not include upstream oil and gas business activities as the public interest, even though oil and gas is very important, except Article 10 letter e, business activities that are based on Exploration and Exploitation business activities.
3 Heri, Sumanto, ‘Pengelolaan Migas di Blok Cepu Kabupaten Bojonegoro, Jawa Timur Pasca Putusan Mahkamah Konstitusi (Oil and Gas Management in the Cepu Block, Bojonegoro Regency, East Java after the Constitutional Court Ruling) Nomor 002/PUU-1/2003’, (2011) I(1 Edisi Juni) Jurnal Kontitusi FKK.
FH.
Unmer Madiun – MK RI.
ISSN.
1829-7729, p. 16.
4 Yuni Purwati and Sigit Sapto Nugroho, 2016, namely: oil, gas and geothermal infrastructure.6 Meanwhile, small-scale land acquisition mechanisms cannot solve problems on a large scale.
Land acquisition cannot be carried out easily, quickly, effectively, or efficiently.
In 2018, SKK Migas made major changes, namely the elimination of 12 Governance Guidelines (PTK) regulations which are expected to have an impact on shortening the bureaucratic process of land acquisition, monitoring health management, work safety, and environmental protection (K3LL), monitoring and evaluating the reliability of facilities.
Upstream oil and gas operations.
The question remains whether this write-off will have a significant impact on the land acquisition mechanism for upstream oil and gas activities.
Based on the background description, the problems that will be answered in this study are as follows: 1) How is the development of land acquisition arrangements for upstream oil and gas business activities?
2) What is the possibility of using discretion in land acquisition for upstream oil and gas business activities?
II.
LEGAL METHODS AND MATERIALS This research has a starting point from normative legal research, namely the rule of law (statutory regulations, jurisproduction, customary law or other unwritten law), and legal principles7 related to land acquisition Pengadaan Tanah Untuk Kegiatan Hulu Minyak dan Gas Bumi di Indonesia (Land Acquisition for Upstream Oil and Gas Activities in Indonesia), Competitive Grants Research Report (Unpublished), LPPM Unmer, Madiun, p. 54.
5 Ibid 6 Article 10 letter e of Law Number 22 Year 2001 on Oil and Gas.
7 Bagir Manan, ‘Penelitian Hukum’ (Legal Research), (1999) Jurnal Hukum (Legal Journal), Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 38 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia issues for upstream oil and gas activities.
Besides the literature study, this research was also conducted with in-depth-interviews with legal experts and parties who live the issue of land acquisition for upstream oil and gas activities in the Cepu Block, Bojonegoro, Blora, Gresik, Tuban, and surrounding areas, such as the land acquisition committee, landowner, practitioners, and investors.
The data results from library research.
Data or information obtained from in-depth interviews, then analyzed qualitatively so that qualitative juridical research results are obtained.
III.
RESULT AND DISCUSSION Development of Land Procurement Arrangements for Upstream Oil and Gas Activities Land procurement has always been a severe obstacle in the upstream oil and gas business activities in Indonesia, which has been going on for a long time.
Land procurement for upstream businesses has never been regulated in Presidential Regulation No.
55 of 1993, Presidential Regulation No.
36 of 2005, Presidential Regulation No.
65 of 2006.
After the promulgation of Law Number 2 of 2001 concerning Oil and Natural Gas (Law No.2 of 2001), Article 34 explains: In the event that a Business Entity or Permanent Establishment is going to use parcels of private land or State land in its Operational Area, the Business Entity or Permanent Establishment concerned must first make a settlement with the right holder or land user on State land, in Puslitbangkum Unpad, Bandung, Perdana; January, p. 4; 8 Article 34 of Law Number 2 Year 2001 on Oil and Natural Gas.
accordance with the provisions of the applicable laws and regulations.
The settlement as referred to in paragraph (1) shall be carried out by deliberation and consensus by means of sale and purchase, exchange, appropriate compensation, recognition or other forms of compensation to the right holder or user of land on state land.8 Furthermore, Article 35 (2) explains that, Holders of land rights are obliged to permit Business Entities or Permanent Establishments to carry out Exploration and Exploitation on the land concerned, if settlement or settlement guarantees are made previously approved by the land rights holder or land user on state land as referred to in the Article 34.9 Based on the provisions of the Article, it can be concluded that land procurement for upstream businesses has been regulated, as follows: 1) Plots of land that are used directly for oil and gas business activities, as well as areas for security are granted "Use Rights".
2) If the Cooperation Contract Contractor (KKKS) is a Business Entity that is established under Indonesian law, the land has the status; a.
Right of ownership, the acquisition of rights must be done by giving compensation; b. Cultivation rights, a release of rights must be carried out by providing compensation; c. Building rights, sale and purchase can be made to then convert it into Right to Use; 9 Article 35 of Law Number 2 of 2001 on Oil and Natural Gas.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 39 d. Land that has not been certified / customary land, the PSC contractor can waive the rights by giving compensation, and then apply for Use Rights over land that has been relinquished.
The development in the field of this provision turns out to be very difficult to implement and this is what is known as the business to business (B to B) mechanism.
This system is very convoluted, consumes time and effort, is ineffective and inefficient and results in high production costs (high cost).
Therefore, it makes difficulty for SKK Migas and Kontrators.
SKK Migas and Kontrator, often experience obstacles, namely: 1) Refusal from land owners because the compensation was deemed too low.
2) Inconsistencies with spatial layout.
3) There is a land dispute with another party.
4) Oil and gas contractors have difficulty processing land certificates, owners are difficult to find.
Apart from these obstacles, SKK Migas and Kontrator also often encounter other obstacles in the field, including; 1.
Landowners do not want to release or refuse land acquisition for several reasons, such as a) The land is their only possession both as a place to live and a livelihood; b) Land is a matter of dignity and cannot be replaced by any gang; c) Inadequate compensation.
2.
The owner asks a very high price negotiating, and haggling takes time; 3.
The land has been controlled by land speculators, and it is not uncommon for people to be involved in SKK Migas or Pertamina.
Subsequent developments when the drafting of Law Number 2 of 2012 concerning Land Procurement for Development in the Public Interest (Law No.2 of 2012), many parties hoped that land acquisition for upstream oil and gas businesses, which included exploration, exploitation, transmission activities, and/or distribution falls within the criteria of public interest.
However, after being passed Law no.
2 of 2012, which is expected to provide a solution to the difficulties experienced by SKK Migas and Contractors in land procurement for upstream activities in order to accelerate and smoothen oil and gas production, it turns out that there is not a single article regulating the problem of land procurement for upstream oil and gas businesses included in the criteria of public interest.
Law No.
2 of 2012 states that all state institutions requiring land are included in the party that can carry out land procurement.
However, it turns out that upstream activities, exploration carried out by SKK Migas, have not / are not listed as categories of procurement for the public interest.
The law does not regulate upstream and downstream oil and gas activities as public interest criteria, whereas oil and gas are essential commodities.
According to the law, what is meant by the public interest is the interest of the nation, state, and society, which must be realized by the government and used as much as possible for the prosperity of the people.
Furthermore, development for the public interest carried out by the Government and / or Regional Government, and there must be a limit to be used as much as possible for the prosperity of the people.
Land for public interest includes 18 (eighteen) activities.
In other words, the scope of land has been expanded compared to the provisions in the previous Presidential Regulation (Perpres).
Land for Public Interest, as referred to in Article 4 paragraph Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 40 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia (1), is used for the development 10 : (a) national defense and security; (b) public roads, toll roads, tunnels, railway lines, train stations, and railway operating facilities; (c) reservoirs, dams, weirs, irrigation, drinking water channels, sewerage and sanitation, and other irrigation structures; (d) ports, airports and terminals; (e) oil, gas and geothermal infrastructure (author's italics); (f) electricity generation, transmission, substation, network and distribution; (g) Government telecommunications and informatics networks; (h) waste disposal and processing sites; (i) Government/Regional Government hospitals; (j) public safety facilities; (k) Government/Regional Government public burial places; (l) social facilities, public facilities, and public green open spaces; (m) nature reserves and cultural reserves; (n) government/regional/village government offices; (o) arrangement of urban slum settlements and/or land consolidation, as well as housing for low-income people with rental status; (p) government / regional government educational infrastructure or schools; (q) Government / Regional Government sports infrastructure; and (r) public markets and public parking lots.
Based on Article 10 letter e, Law no.
2 of 2012, it is clear that what belongs to the public interest in upstream activities or oil and gas projects is limited to "oil, gas and geothermal infrastructure"11, whereas in the General Elucidation of Article 10 letter e of the law, it is stated "it is clear ".
In other words, land acquisition other than “oil and gas infrastructure” cannot be categorized as 10 Article 10, Law Number 2 of 2012 on Land Acquisition for Development for Public Interest.
11 Oil, gas and geothermal infrastructure is defined as infrastructure related to upstream oil and gas and natural gas business activities which include exploration, exploitation, transmission and / or distribution activities.
land for public interest and cannot use the land acquisition mechanism for development for the public interest.
Land acquisition for upstream activities still uses the business to business (B to B) mechanism or scheme or other possible mechanisms by providing fair compensation, prioritizing the welfare and dignity of land owners.
Especially for land acquisition for small scale 12 for upstream oil and gas activities, it can refer to the provisions of Presidential Regulation Number 148 of 2015 in conjunction with Work Procedure Regulation Number 027 / PTK / XII / 2007 and Decree of SKK Migas Number KEP0244 / SKKO000 / 2014 / SO.
Of the 2 (two) major methods of land acquisition within the Upstream Oil and Gas KKS Contractor, the small-scale land acquisition method is one of the mechanisms often used by PSC Contractors in carrying out land acquisition.
This is because in its use, the small-scale land acquisition method has several advantages compared to other land acquisition methods.
The time efficiency factor and the cost of land procurement are essential reasons why the small-scale land procurement method is the method of choice for PSC Contractors today.
So that in terms of the effectiveness of the provisions of land regulations in upstream oil and gas business activities, the provisions of the small-scale land procurement mechanism are deemed more effective to be implemented by the KKS Contractor.13 12 What is meant by small scale is land acquisition of less than 5 hectares.
13 Hasry Perdana Putra dan Nurhasan Ismail, Proses Pengadaan Tanah pada Kegiatan Pertambangan Hulu Minyak dan Gas Bumi di Indonesia (The Process of Land Acquisition in Upstream Oil and Gas Mining Activities in Indonesia), Tesis, (2017) (Universitas Gajah Mada, Jakarta).
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 41 The issuance of Decree Number 0076 of 2014 concerning Small Scale Land Acquisition Mechanisms for Upstream Oil and Gas Business Activities is an implementation of Law Number 2 of 2012 and Presidential Regulation Number 71 of 2012 in conjunction with Presidential Regulation Number 40 of 2014.
SKK Migas has made significant changes to the Work Procedure Guidelines Number: PTK-005/SKKMA0000/2018/S0 and Number: PTK-032/ KKMA0000 018/S0 (Revision-01), but it does not concern significant scale land acquisition but only for small scale procurement.
In the Guidelines, it is explained that; Provisions for Small Scale Land Acquisition for Oil and Gas Exploration and Exploitation needs by the KKKS refer to the SKK Migas Head Decree Number 0244 of 2014 concerning Small Scale Land Acquisition and its amendments.14 Land procurement governance for upstream oil and gas business activities following the issuance of the Decree of the Head of SKK Migas Number 76 of 2014, land procurement can be accounted for, both from pragmatic needs in operations and legal administration, so that the security of state assets can be carried out.
After carrying out land procurement, the KKS contractor is obliged to safeguard the land assets that have been controlled through registration and issuance of Business Use Rights (HGU) certificates.
This is necessary because the land that has been acquired is recorded as state property which must be registered in the form of a Business Use Rights (HGU).
Security is carried out not only for the physical land, but also for documents related to land procurement.15 The Decree regulates the small-scale land procurement process which also regulates the duties of representatives of SKK Migas, SKK Migas Pusat Jakarta, and cooperation contract contractors (KKS contractors), as well as permit applications.
Based on the decree, the licensing process, which seemed to be separate from the land procurement process, has now become an integral part of the land procurement process.
The land procurement mechanism on a small scale for upstream business activities is described in the chart as follows:16 http://etd.repository.ugm.ac.id/penelitian/detail/11 0502, Diakses, tanggal 28 Oktober 2020.
14 Work Procedure Guidelines Number: PTK032/SKKMA0000/2018/S0 (Revision-01) Concerning Representative Operations, number 7.
1.
Small Scale Land Acquisition.
15 Didi Setiadi, Sosialisasi Pengadaan Tanah Skala Kecil (Socialization of Small Scale Land Acquisition), SKK Migas, (2014), https://humasskkmigas.wordpress.com/2014/07/0 7/sosialisasi-pengadaan-tanah-skala-kecil/ accessed 27 November 2020.
16 Ibid.
The Land Procurement Representative SKK Migas Planning Preparation Execution Pre Survey Suurvey Socialization Licensing APT RPPT Power of Attorney Discussion Transfer Of Rights Compensation SKK Migas Jakarta Kontractor KKS Migas Land Procurement Mechanism Chart http://etd.repository.ugm.ac.id/penelitian/detail/110502 http://etd.repository.ugm.ac.id/penelitian/detail/110502 https://humasskkmigas.wordpress.com/2014/07/07/sosialisasi-pengadaan-tanah-skala-kecil/ https://humasskkmigas.wordpress.com/2014/07/07/sosialisasi-pengadaan-tanah-skala-kecil/ Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 42 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia The chart shows that the stages of small-scale land acquisition activities are regulated in the decree, it looks quite simple and can be explained, as follows17: a.
Planning Stage (1) Pre Survey Pre-survey activities are the initial activities that must be carried out in the land procurement process.
This process is carried out by SKK Migas representatives and KKS contractors to see the condition of the land, such as growing crops, buildings, and others, and to get information about land prices, such as NJOP land prices from the sub-district / village head/village head.
Since the issuance of this decree, SKK Migas representatives, especially representatives of North Sumatra (Sumbagut), have coordinated directly with KKS contractors and carried out socialization, both to KKS contractors in the North Sumatra region as well as to KKS contractors who have plans or need land for drilling and development facilities and others.
(2) After the pre-survey was carried out, the KKS contractor submitted an APT to the Legal and Formality Consideration Division.
This APT estimate of the price of land to be acquired, of course, based on information obtained during the presurvey, such as NJOP, land prices from the sub-district / village head/village head Survey.
17 Muhammad Rochaddy Lubis, 2020, Transformation of the Licensing Process at Representatives (2), Public Relations Staff, Representatives of SKK Migas for the North Sumatra Region, accessed on 19 December 2020.
If the APT has been approved, SKK Migas representatives and the KKS contractor will carry out a resurvey involving government agencies such as the sub-district head, village head and village head, and landowners.
So, the difference with the pre-survey is only the parties that carry it out.
(3) Socialization Socialization is carried out by SKK Migas representatives together with KKS contractors to entitled parties by involving government agencies.
(4) Application for Permission As previously explained, the permit and land procurement processes were separate activities, even though they were for the same needs.
With the existence of this decree, the permit application is one of a series of activities in the process of land procurement.
b.
Preparation phase Land procurement implementation plan after the (APT) is approved.
The highest leader of the KKS contractor submits a Land Acquisition Plan (RPPT) to the deputy in charge of land affairs.
Power of Attorney SKK Migas issues power of attorney to the KKS contractor so that the KKS contractor acts for and on behalf of SKK Migas in carrying out the settlement of land procurement.
c. Implementation Stage Settlement of land procurement after the KKS contractor obtains a power of attorney in which the KKS contractor acts https://humasskkmigas.wordpress.com/2015/01/0 6/transformasi-proses-perizinan-di-perwakilan2/#more-1041 https://humasskkmigas.wordpress.com/2015/01/06/transformasi-proses-perizinan-di-perwakilan-2/#more-1041 https://humasskkmigas.wordpress.com/2015/01/06/transformasi-proses-perizinan-di-perwakilan-2/#more-1041 https://humasskkmigas.wordpress.com/2015/01/06/transformasi-proses-perizinan-di-perwakilan-2/#more-1041 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 43 for, and on behalf of SKK Migas in completing land procurement, the KKS contractor can carry out deliberations, transfer of rights, and provide compensation to owners or parties entitled to coordinate with SKK Migas Representatives.
Based on this mechanism, it illustrates that in the future, the role of SKK Migas Representatives is getting bigger in supporting and securing the exploration and exploitation activities of KKS contractors according to schedule, so that targets such as production can be achieved.
SKK Migas representatives are also enthusiastically carrying out the mandate given by SKK Migas Jakarta as explained above that since Decree No.
0076 Tahun 2014, published in April 2014.
Use of Discretion for Land Procurement for Upstream Oil and Gas Business Activities The long experience experienced by SKK Migas in land procurement through a business-to-business (B to B) mechanism or scheme is challenging and faces many obstacles and problems.
Based on such a framework of thinking, the use of discretion becomes a necessity and a legal breakthrough that makes sense and is ideal for overcoming difficulties and obstacles in land procurement for upstream oil and gas business activities.
Land procurement for upstream oil and gas business activities is a fundamental and vital need.
It should be able to run with a simple, easy, effective, and efficient mechanism but must still prioritize the principles of justice, the welfare of landowners, and uphold dignity.
The Ministry of Agrarian Affairs and Spatial Planning / National Land Agency (ATR / BPN) has initiated and made legal breakthroughs, namely using the authority or discretion given by Law Number 2 of 2012 concerning Land Acquisition for Development for Public Interest (Law No.2 In 2012).
Minister of ATR / Head of BPN Sofyan Djalil has been involved in the Special Task Force for Upstream Oil and Gas Business Activities (SKK.
Migas) inland procurement for upstream oil and gas sector activities.
All land acquisition for upstream oil and gas activities is included in the public interest and involves SKK Migas.
The future question is, is it possible to use discretion in the upstream oil and gas business activities?
To answer this question, it must be studied theoretically and juridically.
The simple concept of discretion is the freedom to act by the government in response to the development of demands in social life related to the function of the government as the organizer of the public interest in a country.
With a reasonably simple concept, it must be able to guarantee that it is able to minimize human rights violations in land acquisition as has happened in the past.
This freedom of action in the government was born because of the limited situation of legal arrangements as a basis for action for the government in certain situations, among others; unclear rules or regulations, regulatory emptiness, or contradiction in regulation.
On the other hand, government activities in the context of running the state are continuous or continuous or may not stop.
Observing this simple concept, discretion is the power that contains a particular meaning; namely, the exception is the usual situation where demands regarding the actions that the government has to take are already covered by the legal arrangement.
In everyday situations, the power that applies to the government is bound to power or authority, meaning that in this situation, the Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 44 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia legality principle of the rule of law will always be the commander.18 Some legal experts put forward theoretical views or concepts about discretion, including: a. S. Prajudi Atmosudirjoy defines discretion (English), discretionair (France), freies ermessen (Germany) as follows; freedom of action or taking decisions from the competent and authorized state administration officials according to their own opinion.
Furthermore, it is explained that discretion is needed as a complement to the legality principle, which is the legal principle which states that "every legal action which states that every act or act of state administration must be based on statutory provisions".
However, it is not possible for the law to regulate all kinds of positional cases in the practice of everyday life.19 b. Indroharto mentions discretionary authority as facultative authority, which is an authority that does not oblige state administrative bodies or officials to exercise their authority, but provides options even in certain matters as stipulated in its basic regulations.20 18 Subadi dan Tiara Oliviarizky Toersina, Perkembangan Konsep atau Pemikiran Teoritik tentang Diskresi Berbasis Percepatan Investasi di Daerah (The Development of Concept or Theoretical Thought on Discretion Based on Accelerated Investment in Regions), (2018) 30 (1) Mimbar Hukum, p. 20.
19 Ibid.
See also S. Prajudi Atmosudirjo, 1994, Hukum Administrasi Negara (State Administrative Law), Ghalia Indonesia, Jakarta, p. 82.
20 Ibid.
See also Indroharto, 1993, Usaha Memahami Undang-Undang Tentang Peradilan Tata Usaha Negara (Efforts to Understand the Law on State Administrative Courts), (Pustaka Sinar Harapan, Jakarta), p. 99-101.
21 Ibid.
See also Sjachran Basah, 1997, Eksistensi dan Tolok Ukur Badan Peradilan Administrasi di Indonesia (Existence and Benchmarks of c. Sjachran Basah explained that freies ermessen is the freedom to act on one's own initiative, however, in its implementation, state administrative actions must be in accordance with the law, as stipulated in a constitutional state based on Pancasila.21 d. Diana Halim Koentjo defines freies ermessen as the freedom to act in the state administration or the government (executive) to solve problems that arise in a compelling emergency, where there are no resolution regulations for the problem.22 e. Esmi Warassih said that in the context of implementing public policy, bureaucrats can determine their own policies to suit the situation in which they are in, especially in implementing a public policy.23 The existence of discretion, it is hoped that the existing conditions can achieve a maximum result or goal.
Starting from these concepts, theoretical thoughts an /or legal doctrines, it can be concluded that in essence discretion is freedom of action or freedom to make decisions from government administrative bodies or officials in their own opinion as a complement to the legality principle when the applicable law is unable to resolve.
24 Administrative Courts in Indonesia), Alumni, Bandung, p. 3.
22 Ibid; Diana Halim Koentjoro, 2004, Hukum Administrasi Negara (State Administrative Law), Ghalia Indonesia, Bogor, p. 41.
23 Ibid.
Esmi Warassih Puji Rahayu, 2005, Pranata Hukum Sebuah Telaah Sosiologis (Legal Institution of a Sociological Study), Suryandaru Utama, Semarang, p. 138-139.
24 Subadi, Diskresi Berbasis Percepatan Investasi Daerah (The Role of Legislation in the Development of National Law), (Dialektika, Yogyakarta, 2018), p. 120.
The use of discretion can be carried out with the following limits / benchmarks: 1) Discretion in the form of policy regulations must not conflict or deviate or conflict with the rules on it.
In the sense that it must be in accordance with the hierarchy of statutory Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 45 certain problems that arise suddenly, which are caused because the regulations do not exist or because the existing regulations governing something that is not clear or unclear.25 Still within the framework of such a concept or viewpoint, it can also be concluded that what is needed is freedom or discretion in state administration consisting of free discretion and bound discretion.
In free discretion, the law only determines boundaries and state administration is free to make any decisions as long as it does not exceed / violate these boundaries, whereas in bound discretion, the law stipulates several alternative decisions and state administration is free to choose an alternative decision.
regulated by law.
Especially in relation to the principle of legality (legaliteitsbeginsel) it is known in criminal law and Islamic law, but the legality principle referred to in this paper is the context of administrative law, namely het beginsel van wetmatigheid van bestuur or the principle of legality in government.
The principle of legality is considered the most important basis of the rule of law (al seen van belangrijkste fundamentenvan de rechtsstaat) and implies that the government can only take action based on the authority given and limited by law, "het bestuur kan allen op basis van door de wet toegekende en afgebakende bovoegdheden handelen”.
Although the legality principle is considered the most important principle of a rule of law, basing every governmental action in the regulations; 2) The discretion used must not violate the human rights and obligations of citizens in the sense that it is not used arbitrarily; 3) The discretion used is still within the scope of its basic rules; 4) Discretion is used in a compelling or urgent situation for the sake of public welfare / interest; 5) The discretion used must be based on general principles good governance.
25 Subadi dan Tiara Oliviarizky Toersina, above n 17., p. 21. public sector on the principle of legality or written law is not without problems.
This is because, according to Bagir Manan, there are natural defects and artificial defects from statutory regulations as a form of written law.26.
The government has equipped itself with both attributive and delegative powers within the framework of carrying out government tasks.
With the development of society, there are often certain circumstances that are urgent in nature that make government administrative officials / bodies unable to use their authority, especially binding authority (gebonden bovegheid) in carrying out legal and factual actions normally.27 Marcus Lukman explained that important urgent issues, at least contain the following elements: a.
The problems that arise must be related to the public interest, namely the interests of the nation and the state, the interests of the wider community, the interests of the common people, as well as development activities.
b.
The emergence of these problems suddenly, is outside the predetermined plan.
c. To solve this problem, the laws and regulations have not regulated or only regulated in general, so that the state administration has the freedom to resolve it on its own initiative.
d. The procedure cannot be completed according to normal administration or if 26 Ibid.
Bagir Manan dan Kuntana Magnar, 1987, Peranan Peraturan Perundang-undangan dalam Pembinaan Hukum Nasional (The Role of Legislation in National Law Development), Armico, Bandung,, Armico, Bandung, p. 45.
27 Julista Mustama, Diskresi dan Tanggungjawab Administrasi Pemerintahan (Discretion and Responsibility for Government Administration), https://ejournal.unpatti.ac.id, diakses pada 11 Mei 2020. https://ejournal.unpatti.ac.id/ Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 46 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia it is completed according to normal administrative procedure it is less efficient and effective.28 Starting from this discretionary authority means that some of the power held by the legislature is transferred to the government or state administration as an executive body.
So, the rule of law of the legislature is replaced by the supremacy of the executive, because the state administration resolves problems without having to wait for changes to laws from the legislative field.
This is because in principle, government administrative bodies / officials should not refuse to provide services to the community on the grounds that the law does not exist or the law exists but is unclear, as long as it is within their authority.
Laws and regulations have a limited reach, just taking the moment of hospitalization from the political, economic, social, cultural and defense elements that were most influential at the time of formation.
Therefore, laws and regulations will lag behind when compared to changes in society that are getting faster or accelerated.
29 In addition, another thing that often creates problems in the application of the legality principle is the structure of public legal norms that will be used as the basis for government action.
In contrast to the structure of criminal or civil law norms, the structure of public law norms, especially administrative law, is chain and tiered.
This 28 Marcus Lukman, Eksistensi Peraturan Kebijaksanaan dalam bidang Perencanaan dan Pelaksanaan Rencana Pembangunan di Daerah serta Dampaknya Terhadap Pembangunan Materi Hukum Tertulis Nasional (Existence of Policy Regulations in the field of Planning and Implementation of Regional Development Plans and their Impact on the Development of National Written Legal Materials), Disertasi, Universitas Padjajaran, Bandung, (1996), p. 203.
See also Subadi, Diskresi Berbasis Percepatan Investasi Daerah, (Dialektika, Yogyakarta, 2018), p. 63. means that norms for a government affair are not only contained in a regional law or regulation but scattered in various statutory regulations.
Thus, an official who will take certain legal actions is required to review all relevant laws and regulations.
This is a limitation in itself.
The existence of discretion is functioned to overcome the limitations of officials in understanding all related laws and regulations in the field of administrative law.
In this case, freies ermessen or discretion, namely the independence of the government to be able to act on its own initiative in solving social problems is needed.30 In other words, ermessen freies is a means of providing mobile space for state administrative officials or agencies to take action without being fully bound by the law.31 It should be noted that this freies ermessen or discretion, if set forth in written form, will turn into policy regulations, namely general regulations issued by government agencies regarding the implementation of governmental authority over citizens or other government agencies that are made without strict legal bases in the Law.
The foundation and formal laws both directly and indirectly.
According to Anna Erliyana, the use of freies ermessen by State administrative bodies / officials is intended to solve urgent and sudden problems that are cumulative in 29 Until now, oil and gas are still very vital needs, while the amount of production continues to decline, one of the causes is the land acquisition mechanism which is known to be very difficult and complicated.
It is quite logical and reasonable, if the Ministry of Agrarian Affairs is forced to seek legal breakthroughs for land acquisition to accelerate upstream oil and gas activities.
30 E. Utrecht, 1988, Pengantar Hukum Administrasi Negara Indonesia (Introduction to Indonesian State Administrative Law), Pustaka Tinta Mas, Surabaya, p. 30.
31 Marcus Lukman, above n 27, p. 205.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 47 nature.32 In this case, there is a possibility that issues that are important but not urgent to be resolved are also possible, there is also a possibility that issues that are urgent but not too important to be resolved may arise.
A new issue can qualify as an important issue if the issue concerns the public interest, while the criteria for public interest must be determined by a statutory regulation.33 Based on the foregoing, it can be concluded that the use of discretionary authority by government administrative bodies / officials can only be carried out in certain cases where the prevailing laws and regulations do not regulate it or because the existing regulations governing something is unclear and this is done in an emergency.
/ urgent in the public interest that has been determined in a statutory regulation.
Theoretically, Marcus Lukman states that the benchmarks for important urgent issues must contain at least the following elements: a) The problems that arise must be related to the public interest, namely: the interests of the nation and the state, the interests of the wider community, the interests of the common people or the interests of development.
b) The emergence of the problem suddenly, outside the predetermined plan.
c) To solve these problems, the laws and regulations have not regulated it or only regulate it in general, so that the state administration has the freedom to solve it on its own initiative.
d) The procedure cannot be completed according to normal administration, or if it is completed according to normal 32 Anna Erliyana, 2005, Hukum Administrasi Negara (State Administrative Law), Badan Penerbit Fakultas Hukum Universitas Indonesia, Jakarta, p. 138.
33 Ibid.
administrative procedure it is less efficient and efficient.
e) If the problem is not resolved quickly, it will cause harm to the public interest.34 Based on the foregoing, a limitation can be given that discretion by government officials is an act of state administration law, if an action is carried out by a government official in certain cases where the prevailing laws and regulations have not regulated it, or existing regulations that govern the action/act is unclear so freedom of judgment is needed from government officials and the action/act can only be carried out in the sense of a compelling / urgent situation for the sake of the public interest which has been stipulated in a statutory regulation, with limits / benchmarks.
as follows: a) Discretion in the form of policy rules must not conflict or deviate or conflict with the above rules.
In the sense that it must comply with the hierarchy of statutory regulations; b) The discretion used must not violate the human rights and obligations of citizens in the sense that it is not used arbitrarily; c) The discretion used is still within the scope of its basic rules; d) Discretion is used in a compelling / urgent situation for the sake of public welfare / interest; e) The discretion used must be based on the general principles of good governance.35 Based on the aforementioned explanations, theoretically the use of discretion for land acquisition for upstream oil and gas activities, it seems clearer.
Furthermore, juridically discretion has been regulated in Law Number 30 of 2014 34 Lukman, Marcus, Eksistensi …(1996), above n 27., p. 203.
See Also Subadi, Diskresi….
(2018), above n 17, p. 63.
35 Ibid.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 48 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia concerning Government Administration (Law No.
30 of 2014), in particular Article 22 explains, that: (1) Discretion can only be exercised by authorized Government Officials.
(2) Every use of a Government Official's Discretion aims to: a.
Smooth governance; b.
Fill in the legal void; c. provide legal certainty; and d. overcoming government stagnation in certain circumstances for the benefit and public interest.36 Law No.
30 of 2014, has defined discretion by stating that government officials and / or other legal entities that use discretion in making decisions are obliged to consider discretionary objectives, laws and regulations that serve as the basis for discretion and general principles of good governance.37 Furthermore, what is the procedure for using discretion?
Answering this question, then based on the provisions of Article 26, it is explained that: (1) Officials using the Discretion as referred to in Article 25 paragraph (1) and paragraph (2) must describe the purpose, objective, substance, and administrative and financial impact.
(2) Officials using Discretion as referred to in paragraph (1) are required to submit a written application for approval to the Supervisor of the Official.
(3) Within 5 (five) working days after receipt of the application documents, the Supervisory Officer shall determine approval, correction instructions, or rejection.
36 Article 22, Law Number 30 of 2014 on Government Administration.
37 Article 24, Law Number 30 of 2014 on Government Administration.
(4) If the Supervisory Officer as intended in paragraph (3) refuses, the Supervisor of Officer must provide reasons for rejection in writing.38 Furthermore, Article 28 paragraph (2) and paragraph (3) states that the use of discretion must be held accountable to the superior officials and the public who are harmed by the discretionary decision that has been taken and can be tested through administrative efforts or a lawsuit in the State Administrative Court.
This provision means that the draft government administration law will not only limit the use of discretion by government administrative bodies / officials but also regulates the accountability of government administrative bodies / officials for the use of discretion which is not only passive in the sense of waiting for a lawsuit from the public through the State Administrative Court but also has an active character with the obligation to account for the use of discretion to their superior officials, considering that this is an obligation inherent in the authority which is the basis for the existence of discretion itself.
However, the unfortunate thing is even though in Article 28 paragraph (2) and (3) Law No.
30 of 2014 has regulated the obligation to report discretionary actions to superiors in written form by providing reasons for discretionary decisions, but if these provisions are not implemented there are no sanctions so that it can cause government administrative bodies/officials who issue discretionary decisions to argue that the decision what he made was neither a discretionary decision nor an excuse that he did not know that it was a discretionary decision.
38 Article 26, Law Number 30 of 2014 on Government Administration.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 49 Nevertheless, at least the limits on the use of discretion will be made as a binding norm; this is sufficient to avoid the use of abuse of authority (detournement de pouvoir) and arbitrary actions (willekeur) by government administrative bodies/officials, for the purpose of the main thing of normalization is to create and make State Administrative Law support legal certainty that provides legal guarantees and protection for both citizens and State administrators.
Based on the theoretical and juridical basis as described above, the Ministry of Agrarian Affairs and Spatial Planning and the Land Agency (ATR / BPN) authorizes the Special Task Force for Upstream Oil and Gas Activities (SKK Migas) for land acquisition.
This granting of authority aims to expedite and accelerate national oil and gas projects.39 The Minister of Agrarian Affairs and Spatial Planning, Sofyan Djalil, said that the upstream oil and gas sector often has difficulty obtaining land for project development.
This is an obstacle to the development of Indonesia's upstream oil and gas activities.
One of the obstacles is because new exploration is not too much, one reason is because of the obstacles to obtaining land, especially in the regions.
40 To overcome these obstacles, Minister Sofyan also provided convenience in land acquisition through discretion to SKK Migas as the regulator of Indonesia's upstream oil and gas activities.
Discretion was given because the oil and gas sector was not included in the object of Law Number 2 of 2012.
This has been agreed in the memorandum of understanding.
39 PetroNews, 2020, Majalah Ekonomi Peduli Lingkungan (Environmental Care Economy Magazine).
40 Explanation from Minister Sofyan A. Djalil, at the Ministry of Agrarian Affairs and Spatial Planning Office, (Jakarta, Monday, January 28, 2019).
Based on the reason for making it easier for SKK Migas in increasing oil and gas production, Minister Sofyan Djalil's optimism is easy to make it easy for him to formulate rules supporting discretion and problems in implementation in the field.
As a form of realization of this discretion, the Ministry of Agrarian and Spatial Planning / National Land Agency (ATR / BPN), together with the Special Task Force for Upstream Oil and Gas Business Activities (SKK Migas), have signed an agreement (MoU) related to land certification.
The MoU between the Minister of ATR / BPN and the Special Task Force for Upstream Oil and Gas Business Activities (SKK Migas) on Monday, January 28, 2020, has so far been known that other institutions have had difficulty obtaining land.
Therefore, we accelerate.
In fact, we will later describe that the interests of oil and gas are public interests that can be used based on Law Number 2 of 2012.41 On the other hand, SKK Migas, through Deputy for Business Support M. Atok Urrahman, explained that more than 60 percent (60%) of oil and gas search activities or upstream activities are carried out on land; every activity carried out on land requires land.
Therefore, the role and assistance of the Ministry of Agrarian Affairs and Spatial Planning or the National Land Agency are essential for the upstream oil and gas industry.
SKK Migas requires assistance in land acquisition for the public interest, land registration and certification, resolution of land asset problems and overlapping land, as well as spatial suitability so that upstream oil 41 https://nasional.kontan.co.id/news/kementerianagraria-teken-kerjasama-sertifikat-tanah-denganskk-migas, Accessed 8 October 2020. https://nasional.kontan.co.id/news/kementerian-agraria-teken-kerjasama-sertifikat-tanah-dengan-skk-migas https://nasional.kontan.co.id/news/kementerian-agraria-teken-kerjasama-sertifikat-tanah-dengan-skk-migas https://nasional.kontan.co.id/news/kementerian-agraria-teken-kerjasama-sertifikat-tanah-dengan-skk-migas Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 50 | Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia and gas operations can run according to the specified target.
Every year SKK Migas carries out more than 200 (two hundred) small-scale land acquisitions.
This year, SKK Migas is conducting 13 (thirteen) large-scale land acquisitions in which the land is urgently needed for drilling activities and building oil and gas production facilities.
In contrast to industry and other projects that have flexibility in determining the location of their activities, location the upstream oil and gas industry is determined by the structure and conditions below the ground, namely the oil and gas reserves themselves.
Therefore, wherever the possibility/potential of oil and gas reserves is, it must carry out a land acquisition on it.
Therefore, it is not uncommon for SKK Migas to conduct land acquisition to face obstacles and challenges, such as; 1) refusal from the landowner; 2) inconsistencies in spatial layout; 3) the existence of land and other disputes.
Therefore, we really need assistance from the Ministry of ATR to facilitate these problems.42 Based on the memorandum of understanding (MoU), assistance from the ATR / BPN can assist and ensure that land acquisition for the upstream oil and gas industry will run more easily, quickly, effectively, and efficiently.
Thus, Indonesia's oil and gas production can increase significantly.
In such a simple mindset, SKK Migas must remain committed to promoting a sense of justice and avoiding power approaches that tend to violate the basic rights of land voters.
With the latest developments after the law on the Omnibus Law and the enactment of the Employment Creation Law, it is 42 Ibid.
43 Imam Koeswahyono dan Hikmatul Ula, Institutional Policy in Land Procurement under the possible that land acquisition for upstream oil and gas activities will undergo changes.
However, the crucial issue of compensation within the implementation of the policy of land procurement regards the nonequivalence of land value, both utility value and economic value of structures and landscapes, to the monetary compensation.
The use of the legal culture approach is to provide answers and implement them to resolve issues of land procurement for public interests in the omnibus law regime to maintain justice to landowners and preserve the environment.43 The correlation of the cultural approach and activities of land procurement is that culture refers to the target of the national conscience, and the cultural approach based on the growth mindset will result in wisdom and nobility of the decisions of public officials to prioritize the people rather than interests of investment.44 I agree with this statement that the resolution of crucial problems, especially the provision of compensation for land owned by the people, must be based on the principle for the greatest prosperity of the people and prioritize local cultural wisdom.
IV.
CONCLUSION Land acquisition for upstream oil and gas activities through the business to business (B to B) mechanism often faces difficulties and many obstacles, among others; 1) refusal from the landowner; 2) inconsistencies with the spatial layout; 3) there is a land dispute with another party; 4) difficulty for oil and gas contractors to process land registration and certification.
All of these have resulted in delayed production targets which have resulted in Omnibus Law Regime, (2020) 7 (1) Brawijaya Law Journal.
p.27.
44 Ibid Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Subadi Land Procurement for Upstream Oil and Gas Business Activities in Indonesia | 51 increased production costs.
After being passed Law no.
2 of 2012, Presidential Regulation Number 71 of 2012 in conjunction with Presidential Regulation Number 40 of 2014 and Decree of the Head of SKK Migas No.
76 of 2014, land acquisition is easily accounted for, both for pragmatic operational needs and for legal administration.
The PSC contractor will immediately be able to secure land assets that have been controlled as state property which must be registered and issued a Business Use Rights (HGU) certificate.
The use of discretionary land acquisition for upstream oil and gas activities can be considered as the use of the authority granted by Law No.
2 of 2012 and Law No.
30 of 2014 concerning Government Administration.
Theoretically, it can be justified to be a creative and innovative solution to overcome the need, deadlock, legal vacuum, policies, and regulations for accelerating land acquisition and accelerating oil and gas production.
Meanwhile, juridically; a) in accordance with the objective of discretion as referred to in Article 22 paragraph (2); b) does not conflict with the provisions of laws and regulations; c) in accordance with the AUPB; d) based on objective reasons; e) does not create a conflict of interest; and f.) done in good faith.
V. ACKNOWLEDGEMENT The author is grateful to the Directorate of Research and Community Service (DRPM), Director General of Research and Development Strengthening, Ministry of Research, Technology, and Higher Education (Kemenristekdikti) for funding this research.
The Institute for Research and Community Service (LPPM) Merdeka University of Madiun has provided many facilities to support the smooth running of research.
Also, all parties who have contributed provide data and information, both primary and secondary data, to complete this research.
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kontan.co.id/news/ kementerianagraria-teken-kerjasama-sertifikattanah-dengan-skk-migas, Diakses Tanggal 8 Oktober 2020. https://www.cnbcindonesia.com/news%20/20190128120839-4-52620/percepat-proyek-skk-igas-dapat-diskresi-pembebasan-lahan https://www.cnbcindonesia.com/news%20/20190128120839-4-52620/percepat-proyek-skk-igas-dapat-diskresi-pembebasan-lahan https://www.cnbcindonesia.com/news%20/20190128120839-4-52620/percepat-proyek-skk-igas-dapat-diskresi-pembebasan-lahan https://www.cnbcindonesia.com/news%20/20190128120839-4-52620/percepat-proyek-skk-igas-dapat-diskresi-pembebasan-lahan
[47] The Passport to Regulate Foreign Jurisdiction: The Personal Data Protection Bill, 2019 on its Extraterritorial Application Vasishtan P. Hidayatullah National Law University, Raipur, India Email: vasishtan98@gmail.com DOI: http://doi.org/10.21776/ub.blj.2022.009.01.04 Submitted: 2021-09-10 | Reviewed: 2022-03-24 | Accepted: 2022-04-13 | Published: 2022-04-30 How to Cite: P, Vasishtan.
2022.
“The Passport to Regulate Foreign Jurisdiction: The Personal Data Protection Bill, 2019 on Its Extraterritorial Application”.
Brawijaya Law Journal 9(1):47-58. https://doi.org/10.21776/ub.blj.2022.009.01.04.
Abstract: The Indian Personal Data Protection Bill, 2019 (PDP Bill) was formulated from the Recommendations of the Justice Srikrishna Report.
This Bill was the first portkey for India’s exclusive data protection regime.
Notably, there is an urgent need to establish a strong legal framework for data protection in India as this would be the only safehouse for protecting every individual’s personal data, including sensitive and critical data.
The EU’s General Data Protection Regulation (GDPR) serves as a yardstick for global data protection regulation due to its architecture that places a great onus of compliance on foreign entities.
This resolute extraterritorial nature that GDPR thatches on itself has inspired several upcoming worldwide data protection regimes.
Consequently, the Joint Parliamentary Committee, which is tasked with reviewing India’s PDP Bill, has the responsibility to upgrade its stance to be tenacious and more obstinate, as well as ensure that the Bill has a strong extraterritorial foundation.
This requirement comes with a plethora of challenges under international law as questions on cross-border jurisdictions are inevitable.
This paper compares the PDP Bill with the GDPR and Brasil’s Lei Geral de Proteção de Dados (LGPD) and analyzes the key challenges emerging from the extraterritorial scope of these legislations through the lens of international law.
Its main objective is to identify the possible and plausible solutions to these extraterritorial jurisdictional issues and highlight how the fundamental construction of India’s PDP Bill can be improved to effectively address the extraterritorial concerns.
Keywords: Data Protection, PDP Bill, Extraterritorial Application, GDPR, LGPD, International Cooperation.
I.
Introduction A state assumes the responsibility of its citizens and residents’ safety within its 1 The concept of ‘jurisdiction’ in the field of protection of citizens has also developed its own independent meaning, not considered in this article, which recognises that states may have extraterritorial human rights obligations based on effective control over territory or persons.
A state jurisdiction.1 However, when there is need to safeguard the interests of its citizens who in unlawful occupation of territory may thus be subject to jurisdictional obligations under human rights law, even though it lacks jurisdictional rights as a matter of general international law.
See generally e.g., Marko https://doi.org/10.21776/ub.blj.2022.009.01.04.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 47-58 [48] reside in other jurisdictions, international law comes to play.2 International law serves as the yardstick for regulating international relations, thereby promoting global peace and prosperity and ensuring that states are able to protect the best interests of their citizens elsewhere while maintaining their sovereignty and integrity.3 This is a subject matter jurisdiction.
Jurisdiction is the legal authority a state or an international body possesses over a territory of land, air, water etc., to exercise its authority over that region.
Jurisdiction is a part of globe that is devoted and subjected to a state’s sovereignty.
4 Only a few widely ratified conventions, such as the Vienna Convention,5 provide for limited diplomatic exemptions to these scenarios.
As Oppenheim opines, “States possessing independence and territorial as well as personal supremacy can naturally extend or restrict their jurisdiction as far as they like.”6 This opinion remains valid as long as records to any trade deals across borders are well documented in pen and paper.
However, with the advent of the digital era, the pen and Milanovic, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (OUP, 2011).
2 SS ‘Lotus’ (France v Turkey) (1927) PCIJ Ser A, No 10.
3 UK vs. Norway (North Atlantic Fisheries Case), [1951] ICJ Rep.116.
4 James Crawford, Brownlie’s Principles of Public International Law, 8th edn (OUP, 2012); D. W. Bowett, “Jurisdiction: Changing Patterns of Authority Over Activities and Resources,” BYIL 53, no.1 (1982).
53 BYIL 1, 1, describing jurisdiction as ‘a manifestation of State sovereignty’ 5 Vienna Convention on Diplomatic Relations 1961, Done at Vienna on 18 April 1961.
Entered into force on 24 April 1964.
United Nations, Treaty Series, vol.
500, p. 95.
6 Oppenheim, International Law, Chapter 1, s.143.
Even Oppenheim, however, followed this by stating that ‘as members of the Family of Nations and International Persons, the States must exercise self-restraint in the exercise of this natural power paper trade deals have been replaced with other digital methods.
The pervasive cyberspace concept has decentralized the notion of borders and territories and prompted a paradigm shift regarding jurisdictions over cyberspace matters.7 The decentralization of the demarcated sovereign borders by the internet has subsequently opened doors for worldwide regulators and courts to apply the “extraterritorial effect.” Notably, the extraterritorial effect of national legislation and policies was an issue of concern even before the era of the internet.8 Privacy laws, especially those protecting the personal data of citizens and individuals, are the newest addition to the extraterritorial regulations that states promulgate to protect the interests of their subjects and exercise their sovereignty.9 This scenario raises two prima facie questions on the regulators and the courts: How aware are the states to avoid detrimental and redundant impact across their borders and can would they minimize such adverse effects?10 in the interest of one another’, and (implicitly recognising the disparity between the ‘positivist’ perspective and accepted practice) went on to treat jurisdiction as based strictly on territoriality and nationality (with the exception of piracy), arguing that even passive personality was an impermissible extension of jurisdiction.
7 Jean-Baptiste Maillart, “The Limits of Subjective Territorial Jurisdiction in the Context of Cybercrime,” ERA Forum 19 (2019).
https://doi.org/10.1007/s12027-018-0527-2.
8 The United States of America’s Helms Burton Act, regulated on the bribery or unauthorised sanctions relating to third countries, had an extraterritorial effect defacto by nature.
9 “The Internet and Extra-Territorial Effects of Laws Internet Society Concept Note,” Internetsociety.org, accessed April 11, 2021, https://www.internetsociety.org/wpcontent/uploads/2018/10/The-Internet-and-extraterritorial-application-of-laws-EN.pdf.
10 Id.
at page 3.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [49] This paper analyzes the extraterritorial aspect of India’s Personal Data Protection Bill, 2019 (“PDPB”)11 and attempts to compare it with the European Union’s General Data Protection Regulation (“EUGDPR”) 12 and Brasil’s Lei Geral de Proteção de Dados (“LGPD”)13.
As the PDPB is under scrutiny before the Joint Parliamentary Committee14 prior to its promulgation into an Act, this article may help shade more light on any gray areas in the Bill.
The overarching idea is to examine how the PDPB’s extraterritorial position will ensure personal data protection.
II.
Legal Materials and Methods The main materials used in the current study are the EU’s GDPR, Brasil’s LGPD, and India’s PDP Bill, 2019.
The research carried in this study is non-empirical and doctrinal in nature.
The main sources of information were Acts, books, commentaries, and online news and journal articles that support the research idea and questions pursued in this study.
The research mainly focused on India’s position on the extraterritorial application of its data 11 The Personal Data Protection Bill, 2019 was introduced in Lok Sabha by the Minister of Electronics and Information Technology, Mr. Ravi Shankar Prasad, on 11 December 2019.
The Bill seeks to provide for protection of personal data of individuals, and establishes a Data Protection Authority for the same.
4173LS(Pre).p65, accessed April 11, 2021.
12 The General Data Protection Regulation 2016/679 is a regulation in EU law on data protection and privacy in the European Union and the European Economic Area.
It also addresses the transfer of personal data outside the EU and EEA areas.
“General Data Protection Regulation,” accessed April 11, 2021, https://gdpr-info.eu/.
13 The General Personal Data Protection Law 13709/2018, is a statutory law on data protection and privacy in the Federative Republic of Brazil.
The law's primary aim is to unify 40 different Brazilian laws that regulate the processing of personal data.)
LGPD-english-version.pdf (lgpdbrasil.com.br), accessed April 11, 2021.
14 The PDP Bill, 2019 was referred to the Joint Parliamentary Committee by the Indian Parliament in its initial attempt to pass it in the House.
The protection regime as compared to the preceding EUGDPR.
III.
Results and Discussion The Personal Data Protection Bill, 2019 a.
Understanding the Bill The PDPB was formulated from the recommendations of the Justice Srikrishna Committee’s Report on Data Protection15 is intended to govern entities that process personal data.
These entities include the Government, companies that are incorporated in India, and foreign companies that deal with Indian citizens’’ personal data.
The type of data covered under the Bill includes personal data that contains the characteristics, traits, and attributes of identity that can identify an individual.
16 There are certain subsets of data that are categorized as sensitive personal data (“SPD”) in the PDPB, which include data pertaining to financial information, biometrics, caste, and religious and political affiliations of an individual.17 There is also JPC is headed by Ms. Meenakshi Lekhi.
Committee: Loksabha (loksabhaph.nic.in), accessed April 11, 2021.
15 The Srikrishna Report was drafted with a belief that the protection of personal data holds the key to empowerment, progress, and innovation of not only India, but also the Indians.
The report intended to adopt learnings from best practices that exist in developed democracies with considerably advanced thinking on the subject.
Committee Report on Draft Personal Data Protection Bill, 2018_0.pdf (prsindia.org), accessed April 11, 2021.
16 “The Personal Data Protection Bill, 2019” prsindia, accessed April 11, 2021, https://prsindia.org.
17 §2(36), The Personal Data Protection Bill, 2019 was introduced in Lok Sabha by the Minister of Electronics and Information Technology, Mr. Ravi Shankar Prasad, on 11 December 2019.
The Bill seeks to provide for protection of personal data of individuals, and establishes a Data Protection Authority for the same.
4173LS(Pre).p65; other factors include sex life; sexual orientation; genetic http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf https://gdpr-info.eu/ https://www.lgpdbrasil.com.br/wp-content/uploads/2019/06/LGPD-english-version.pdf https://www.lgpdbrasil.com.br/wp-content/uploads/2019/06/LGPD-english-version.pdf http://loksabhaph.nic.in/Committee/CommitteeInformation.aspx?comm_code=73&tab=1 https://prsindia.org/files/bills_acts/bills_parliament/Committee%20Report%20on%20Draft%20Personal%20Data%20Protection%20Bill,%202018_0.pdf https://prsindia.org/files/bills_acts/bills_parliament/Committee%20Report%20on%20Draft%20Personal%20Data%20Protection%20Bill,%202018_0.pdf https://prsindia.org/files/bills_acts/bills_parliament/Committee%20Report%20on%20Draft%20Personal%20Data%20Protection%20Bill,%202018_0.pdf http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf Brawijaya Law Journal: Journal of Legal Studies 9(1): 47-58 [50] another subset called as critical personal data (“CPD”).
The PDPB stipulates that the Government will define this type of data through notices.18 b.
The Extraterritoriality Provisos Available in the PDP Bill, 2019 §2(c) of the PDPB states that the applicability of the Act with respect to the processing of data shall apply to “… (c) the processing of personal data by data fiduciaries or data processors not present within the territory of India, if such processing is — (i) … any systematic activity … to data principals within the territory of India; or (ii) … which involves profiling of data principals within the territory of India…” This provision expressly confirms the extraterritorial applicability of the PDPB.
Therefore, India’s discretion to hold any data fiduciary liable in the event of these conditions is wide.
This is a welcome expansion as the previous IT Act and the SPDI Rules left a gray area in terms of their extraterritorial applicability.19 data; transgender status; intersex status; caste or tribe; or any other data categorised as sensitive personal data under §15 18 §33, The Personal Data Protection Bill, 2019 was introduced in Lok Sabha by the Minister of Electronics and Information Technology, Mr. Ravi Shankar Prasad, on 11 December 2019.
The Bill seeks to provide for protection of personal data of individuals, and establishes a Data Protection Authority for the same.
4173LS(Pre).
p65.
19 Harish Walia and Supratim Chakraborty, “Indian Data Protection Law,” iclg.com, n.d., accessed April 11, 2021, https://iclg.com/practiceareas/data-protection-laws-and-regulations/india.
20 §3(31) — "processing" in relation to personal data, means an operation or set of operations performed on personal data, and may include operations such as collection, recording, organisation, structuring, storage, adaptation, alteration, retrieval, use, §33 allows SPD to be transferred outside India but prohibits those transferring it from storing it and strictly advices that CPD only be processed in India, unless the Government authorizes otherwise or there is a health emergency.
It is also important to note that the word “transferred” does not mean “processing” under §3(31)20.
§34 provides for conditions under which the transfer under §33 can be effected; i.e., when explicit consent of the data principle 21 is present and the transfer is approved by the authority, 22 which has the responsibility to ensure that the rights of the data principal are protected, the data fiduciary 23 is liable for any non-compliance, and the protection of the data itself complies with all laws and agreements.
Under §50, the authority strictly considers compliance to §34 as a good practice under its code of practice24.
On the penal aspect, §57 penalizes the data fiduciary if it contravenes any provisions of the Act with a minimum fine of ₹15 Crores or 4% of the total worldwide turnover of the Fiduciary for the previous year.
25 This provision confirms that a data fiduciary can be a foreign company and, therefore, the PDPD has extraterritoriality over foreign companies handling Indians’ data.
Notably, alignment or combination, indexing, disclosure by transmission, dissemination or otherwise making available, restriction, erasure or destruction; 21 §3(14) — "data principal" means the natural person to whom the personal data relates.
22 §3(5) — Authority" means the Data Protection Authority of India established under sub-section (1) of §41.
23 §3(13) — "data fiduciary" means any person, including the State, a company, any juristic entity or any individual who alone or in conjunction with others determines the purpose and means of processing of personal data; 24 §50(6)(q) — Codes of Practice – The code of practice under this Act may include the following matters, namely, transfer of personal data outside India pursuant to §34; 25 §57(2) read with §57(3)(a).
— Penalties for contravening certain provisions of the Act.
http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/373_2019_LS_Eng.pdf E-ISSN: 2503-0841, P-ISSN: 2356-4512 [51] the same has not been mentioned under §3(13), which defines a data fiduciary.
It is also important to note that the Act can only be invoked on such processing of data within the territory of India.
There is no express protection on Indian citizens or residents per se.
Even if data processing occurs in India, or is carried by foreign data fiduciaries on data supposedly processed in India, the Act does not invoke any beyond this aspect.
Comparative Law on Extraterritoriality: The GDPR & LGPD The concept of extraterritoriality is a foremost safeguard that can be applied to data processing and handling.
26 Since the internet realm has decentralized borders, the only solution and wall of defense to protect an individual’s data is to allow the law to follow the data regardless of where the data fiduciary/processor is located.27 This way, an individual can carry one part of the sovereignty of their state and their best interests can be protected.
This can be effected by the extraterritorial applicability of data privacy laws.
a. Convergence of laws in Foreign Jurisdictions 26 “The Internet and Extra-Territorial Effects of Laws Internet Society Concept Note,” at 12.
27 Bruno.
R. Bioni, “A Produção Normativa a Respeito Da Privacidade Na Economia Da Informação e Do Livre Fluxo Informacional Transfronteiriço,” in Direitos e Novas Tecnologias: XXIII National Meeting of Conpedi, 1, 2014, 59–82, accessed April 12, 2021, https://brunobioni.com.br/wpcontent/uploads/2020/02/internet-sectoraloverview-xi-2-privacy-7-11.pdf.
28 “Brazil’s New Data Protection Law: LGPD Marketer’s Guide,” SaaSholic, accessed April 12, 2021, https://www.saasholic.com/ 29 Id.
GDPR and LGPD enable a free-flow of data courtesy of the laws formulated as such.
This means that both LGPD and GDPR impact personal data and allow processing without a local, physical presence of the data subjects.
28 Consequently, this helps data fiduciaries to understand the big data of the EU better.
This would create a positive impact on businesses that target big data and their relevant consumers.29 This is one aspect where India may be lacking.
Data that exists and is stored within India may be safeguarded, but it is a one-way corridor when the data belongs to an Indian residing abroad and the data fiduciary also exists outside the territory of India.
When a foreign data processor processes data of an Indian citizen who lives outside India, which was not processed inside India, the Central Government has powers to exempt the application of the PDPB.30 This may cause a great deal of loss to Indian fiduciaries processing data from outside India, which would subsequently impact the global race that countries participate in as they endeavor to process the global big data.
b. Nodal Authority The concept of SPD has always been of paramount importance even before the digital era in the European Union Nations, better than India 31 or Brasil 32 .
In terms of the 30 §37 – Power of Central Government to Exempt Certain Data Processors — The Central Government may, by notification, exempt from the application of this Act, the processing of personal data of data principals not within the territory of India, pursuant to any contract entered into with any person outside the territory of India, including any company incorporated outside the territory of India, by any data processor or any class of data processors incorporated under Indian law.
31 “The Internet and Extra-Territorial Effects of Laws Internet Society Concept Note,” at 43.
32 Comparing GDPR v. LGPD, OneTrust DataGuidance, B.Luz, Advocates.
“gdpr_lgpd_report.pdf”, Dataguidance, accessed Brawijaya Law Journal: Journal of Legal Studies 9(1): 47-58 [52] appointment of a nodal officer, the PDPB stands far superior than the other two.
The LGPD is more restrictive in nature when it comes to public health data or transfer of data to any processor or fiduciary outside the jurisdiction of the law.33 The appointment of a data protection officer (“DPO”) by a data fiduciary34, irrespective of their location, is a key improvement in the PDPB that is missing in both the GDPR and LGPD.
However, the GDPR also provides for provisions 35 to appoint a DPO, but it is restrictive in nature and it can only be applied under certain conditions of controlling data.
The significance of a DPO is seen in cases where the data fiduciary is acting outside the scope and powers prescribed to it by the local data provisions.
In the PDPB scenario, the appointment of a DPO has positive effects; i.e., it ensures that authorized personnel are held liable before a competent Indian authority in case a foreign fiduciary defaults.
The position of the EU and Brasil is better safeguarded as the reach of extraterritoriality as their regulations are longer and more expansive in nature.
However, the question of trying a defaulter before an authority in the event of a default is still a gray area.36 c. The Significant Reach of Extraterritoriality April 12, 2021, https://www.dataguidance.com/sites/default/files/ gdpr_lgpd_report.pdf.
33 Id.
34 §30(3) — The data protection officer appointed under sub-section (1) shall be based in India and shall represent the data fiduciary under this Act.
35 Section 4 – Data Protection Officer — Article 37 – Designation of a Data Protection Officer.
36 Glory Francke, “Time to Update Your Privacy Statement For GDPR,” Law 360, n.d., Comparing GDPR v. LGPD, OneTrust DataGuidance, B.Luz, Advocates.
“gdpr_lgpd_report.pdf”, Dataguidance, accessed April 12, 2021, https://www.dataguidance.com/sites/default/files/ gdpr_lgpd_report.pdf.
Perhaps the most significant contrast where the GDPR and LGPD take a superior lead over the PDPB is how the extension of the extraterritorial arms has been formulated.
Article 3 of the GDPR vests the jurisdiction to the data controller and the processors in the EU, regardless of where data processing takes place.
37 This is also present in the LGPD as it was inspired by the ideals enshrined by the GDPR.
38 However, the PDPB misses out on this important aspect.
This gives rise to a situation where if data fiduciaries were to process data of a citizen or an individual belonging to the EU Nations, even when such data subjects do not presently reside in the EU region, the fiduciaries would still be required to comply with the GDPR.39 On the contrary, if a data fiduciary is headquartered at Geneva, Switzerland, and it processes data of an Indian citizen living in Europe or even in Chennai, such data fiduciary will not be required to comply with the provisions of the PDPBThis aspect is also missing in the LGPD.
However, the LGPD provides that if a foreign data fiduciary is processing data of a Brazilian individual residing inside the Brazilian territory and the data is stored outside of Brazil, the data fiduciary will have to comply with the LGPD.40 The LGPD applies41 if the purpose 37 Article 3 – Territorial Scope — This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, regardless of whether the processing takes place in the Union or not.
38 Christian Perrone, “Privacy and Data Protection From Europe To Brazil,” n.d., https://doi.org/http://dx.doi.org/10.17768/pbl.y6.n 9-10., p82-100.
39 “Brazil’s New Data Protection Law: LGPD Marketer’s Guide,” SaaSholic, accessed April 12, 2021, https://www.saasholic.com/.
40 Ibid.
41 Article 4 of the LGPD.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [53] of an entity’s processing activity is to offer or provide goods or services to individuals located in Brazil.42 d. Monitoring External Data Fiduciaries The GDPR is applicable to entities that are not a part of the EU as well as data of individuals who are not EU citizens but are living in the EU.43 Although the LGPD can be applied on external data fiduciaries, the data subjects must be the naturalized citizens of Brasil.44 It is worth noting that the PDPB does not define who a data principal in relation to Indian citizenship is.
§2(14) only describes a data principal as a natural person on whom the data is being processed.45 Key Challenges Emerging Out of Extraterritoriality The rewards of extraterritorial jurisdiction result in certain equally challenging situations where personal data protection regulations get trapped in endless verticals of the international law and customs.
From compliance issues to the overlapping of two jurisdictions, a plethora of diplomatic problems arise while enforcing data protection regulations whose scope has a significant extraterritorial reach.
42 The LGPD also applies, irrespective of the location of an entity's headquarters, or the location of the data being processed, Comparing GDPR v. LGPD, OneTrust DataGuidance, B.Luz, Advocates.
“gdpr_lgpd_report.pdf”, Dataguidance, accessed April 12, 2021, https://www.dataguidance.com/sites/default/files/ gdpr_lgpd_report.pdf.
43 Recital 2 of the GDPR 44 Article 4 of the LGPD.
45 §2(14) "data principal" means the natural person to whom the personal data relates; 46 Supra Note Error!
Bookmark not defined.. 47 Dan Jerker B. Svantesson, “The Extraterritoriality of EU Data Privacy Law – Its Theoretical Justification and Its Practical Effect on U.S. Businesses,” Stanford Journal of International Law 50, no.
1 (2014): 53–102.
P. 58. a. Applicability of the Regulation & Limited Support from International Law Reiterating the Lotus Principle46, it states “a wide measure of discretion (…) to adopt the principles which it regards as best and most suitable,” albeit it is problematic to justify jurisdiction when the GDPR, PDPB, or LGPD decentralizes borders and territories.
However, the ideals of international customs are to enumerate laws that civilian states preach and practice47.
This is a source of law as defined by Article 38 of the ICJ 48 .
Moreover, the protection of privacy is thematically well-illustrated by the UDHR49 and ICCPR50.
Therefore, the solution lies in interpreting Article 38 first, followed by the privacy protection principles of the treaties.
To fulfill international customs, the justification of the territorial principle will suffice because it is universal and only the location of occurrence matters 51.
Since the breach of the data protection requirement for an Indian residing outside India will not invoke the effects doctrine52, as the nation where the breach occurs remains unharmed, the passive personality principle would aid the Indian victim who is affected outside the 48 Article 38 of the International Court of Justice — the legitimacy of extraterritorial claim may be assessed in light of “international conventions […] establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; (and) the general principles of law recognized by civilized nations […]”, 49 Universal Declaration of Human Rights 50 International Covenant on Civil and Political Rights 51 “Nottebohm Case (Liechtenstein v. Guatemala); Second Phase”, International Court of Justice (ICJ), 6 April 1955, accessed April 12, 2021, https://www.refworld.org/cases,ICJ,3ae6b7248.ht ml.
52 Svantesson, “The Extraterritoriality of EU Data Privacy Law – Its Theoretical Justification and Its Practical Effect on U.S. Businesses.” https://www.refworld.org/cases,ICJ,3ae6b7248.html https://www.refworld.org/cases,ICJ,3ae6b7248.html Brawijaya Law Journal: Journal of Legal Studies 9(1): 47-58 [54] territory of India.53 However, Article 3(2)54 of the GDPR and other similar provisions of the LGPD enumerate that this is largely based on the effects’ doctrine, whose process is more controversial, as it places complacence on the location over the victims.
Since GDPR applies unilaterally across the world, and more in the EU region, this expansiveness may help satisfy the international custom requirement.55 The subsequent challenge is to ensure that the PDPB adheres to the general principles of law, as recognized by civilized states.56 Since states are yet to develop an in-depth understanding of data protection laws (“DPL”), taking precedents from other DPL jurisdictions may help establish the validity of the PDPB, GDPR, and LGPD.
For instance, the 2012 Singapore PDP Act applies to entities unilaterally, regardless of whether they were established in Singapore or not.57 Further, the 1988 Australian Privacy Act58 applies to any entity that is based out of Australia, and the United States’ Foreign Corrupt Practices Act 59 extends to jurisdictions where it may not have territoriality to safeguard the best interests of 53 Id.
54 Article 3(2) — This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.
‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; 55 Ricky Leung, “Navigating the GDPR’s Extraterritorial Applicability to Processors: A Perspective from the Non-EU Cloud Service Provider” (August 2018), http://dx.doi.org/10.13140/RG.2.2.32800.43529.
56 Adèle Azzi, “The Challenges Faced by the Extraterritorial Scope of the General Data the intention of the law.
All these laws illustrate how DPL can apply anywhere under the general principles of international law.60 Every nation would want to expand its DPL’s extraterritorial scope to affirm its international sovereignty.
61 However, this desire leaves international law in a cliffhanger.
Is this practice a necessity or liability?
b.
Enforcement of Extraterritorial Jurisdiction: A Necessity or Liability?
Any Government can employ strongarm laws to domestically regulate local internet providers, intermediaries, and users.
62 However, as data sharing transcends across borders, there is a compelling need to expand the scope of invoking extraterritorial jurisdiction.
Notably, states that allow GDPR to have territory in their space may not consider PDPB’s extraterritorial jurisdiction due to the colonial history.
Therefore, India may still suffer the perception of being either a poor country or a fast developing nation that other states may not appreciate.
This is Protection Regulation,” Journal of Intellectual Property, Information Technology and ECommerce Law 9, no.
2 (2018), https://www.jipitec.eu/issues/jipitec-9-22018/4723.
57“Law in Singapore”, DLA Piper, accessed April 12, 2021, https://www.dlapiperdataprotection.com/index.ht ml?t=law&c=SG.
58 “Privacy Act 1988, Section 5B, paragraph 3(b)”, accessed April 12, 2021, https://www.legislation.gov.au/.
59 Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C.
§§ 78dd-1, et seq.
("FCPA").
60 Jack Goldsmith and Tim Wu, Who Controls the Internet?
Illusions of a Borderless World (Oxford University Press, 2006), 111.
61 Svantesson, “The Extraterritoriality of EU Data Privacy Law – Its Theoretical Justification and Its Practical Effect on U.S. Businesses.” 62 Goldsmith and Wu, Who Controls the Internet?
Illusions of a Borderless World, 159. https://www.dlapiperdataprotection.com/index.html?t=law&c=SG https://www.dlapiperdataprotection.com/index.html?t=law&c=SG https://www.legislation.gov.au/ E-ISSN: 2503-0841, P-ISSN: 2356-4512 [55] where the PDPB’s §37 63 may prove instrumental, as delisting certain foreign data fiduciaries may pave way to a more diplomatic understanding with such jurisdictions and consequently earn the faith to claim extraterritorial jurisdiction for other data fiduciaries.
However, the PDPB lacks a provision that is similar to Article 58(1)64 of the GDPR, which institutes a supervisory authority to command the functions of another jurisdiction operator.
Notably, the LGPD also lacks such a provision.
The extraterritoriality principle in DPLs only intends to achieve measures to protect the sovereignty of stakeholder states.
Unlike international criminal jurisdiction cases, there is no real claim for land or air present.
Therefore, diplomacy may be an easy yet affordable tool to establish cooperation among jurisdictions.
“The consent of the foreign state must be obtained” 65 .
Even China enumerates this principle,66 and Spain and Germany have already settled on an understanding to transfer personal data 67 .
Therefore, this is not an impossible task 63 §37 – Power of Central Government to Exempt Certain Data Processors — The Central Government may, by notification, exempt from the application of this Act, the processing of personal data of data principals not within the territory of India, pursuant to any contract entered into with any person outside the territory of India, including any company incorporated outside the territory of India, by any data processor or any class of data processors incorporated under Indian law.
64 Article 58 of the GDPR — Powers of the Supervisory Authority.
65 Christopher Kuner, Data Protection Law and International Jurisdiction on the Internet (Part 2) (International Journal of Law and Information Technology, Oxford University Press, 2010), 232.
66 Article 277 of China's Personal Information Protection Law — 67 See Commission Decision 2001/497 of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC, 2001 O.J.
(L 181/19) 68 Azzi, “The Challenges Faced by the Extraterritorial Scope of the General Data Protection Regulation.” anymore; only administrative and judicial cooperation is required.68 c. Self-Regulation and Safeguarding Data by Corporations Around the World Diplomatic relations always seek a direct means of enforcement and the success quotient relies on lots of political, socioeconomic factors.69 However, there are other factors that a corporation may consider and, as a result, the state will consider before condescending to extraterritorial agreements with the other states.70 Reputation is a key stake that corporations would hesitate to risk as a result of non-compliance.
Therefore, the overarching coverage of DPLs on privacy aspects may require corporations to comply with such regulations.71 Google testified this truth in the Google v. Spain case.72 Likewise, when Facebook attempted to function parallel but not exactly complying with the GDPR, its reputation was thrown to a borderline contempt from the public.
This forced Facebook to comply with the GDPR later.73 However, the threat to reputation may 69 Cedric Ryngaert, “The Concept of Jurisdiction in International Law,” Utrecht University, n.d., https://unijuris.sites.uu.nl/wpcontent/uploads/sites/9/2014/12/The-Concept-ofJurisdiction-in-International-Law.pdf.
70 Nicole Lindsey, “Understanding the GDPR Cost of Continuous Compliance,” CPO Magazine, 2019, accessed April 13, 2021, https://www.cpomagazine.com/dataprotection/understanding-the-gdpr-cost-ofcontinuous-compliance/.
71 “15 Unexpected Consequences of GDPR,” Forbes Technology Council, n.d., accessed April 13, 2021, https://www.forbes.com/sites/forbestechcouncil/2 018/08/15/15-unexpectedconsequencesofgdpr/#1ff037ae94ad.
72 Google v. Spain, Court of Justice of the European Union [CJEU], ILEC 060 (CJEU 2014).
73 David Ingram and Joseph Menn, “Exclusive: Facebook CEO Stops Short of Extending European Privacy Globally,” reuters.com, n.d., accessed April 13, 2021, https://www.reuters.com/article/us-facebook-ceoBrawijaya Law Journal: Journal of Legal Studies 9(1): 47-58 [56] not be grave for small-scale data fiduciaries.
74 This will further encourage corporations to self-comply with the DPL’s ecosystem.
This is a noteworthy model of claiming extraterritorial jurisdiction without the state initiating any processes.75 The selfregulations feed on a company’s fear of losing reputation.
If the self-compliance program is popularized on the internet and among users, then corporations will be forced to comply with the regulations.76 GDPR’s Chapter V regulates data transfer to third countries 77 to ensure the primary safeguards of the data of data principals of one state when they interact with entities belonging to another state.
78 On the other hand, the PDPB lacks this overarching extraterritorial concept in its basic architecture.
Regulating data transfer may effectively protect a principal’s personal data from being extradited by website cookies or even vendors/sellers from other countries.79 This contradicts the full-compliance function of Article 3.
Chapter V fills the miniscule voids left by the wide scoped Article 3.
80 Arguably, as the usage of the internet becomes prevalent, so is the threat of losing personal data.
81 Therefore, regulating data transfer may also result in personal data being leaked through unnoticeable channels to third countries82.
privacy-exclusive-idUSKCN1HA2M1.
Exclusive: Facebook CEO stops short of extending European privacy globally | Reuters.
74 Jeffrey Batt, “Reputational Risk and the GDPR: What’s at Stake and How to Handle I,” Brink News, 2018, accessed April 13, 2021, https://www.brinknews.com/reputational-riskand-the-gdpr-whats-at-stake-and-how-to-handleit/.
75 Kuner, Data Protection Law and International Jurisdiction on the Internet (Part 2).
76 Svantesson, “The Extraterritoriality of EU Data Privacy Law – Its Theoretical Justification and Its Practical Effect on U.S. Businesses.” 77 GDPR Chapter V — Transfers of personal data to third countries or international organisations.
IV.
Conclusion and Recommendations As the entire global users’ daily routine relies on the internet and digital communication channels, there is an urgent need for various international agreements to be ratified to promote peace and cordial relations among states.
Since internet and technology transcend through space and borders, the understanding and conceptualization of the jurisdictions of land, water, and space also need to be broadened and equally progressive.
The thought process of sources of international law is still the ideals formulated in the industrial era and since technology and internet have caused a paradigm shift in the way communication and interactions occur, international laws should also be updated to meet contemporary needs.
In light of all these, the extraterritorial scope of DPLs cannot be exempted.
The ideal trend should be to widen DPLs’ scope of jurisdiction to make the impending concept of jurisdictions future-proof.
States should formulate laws that safeguard their sovereignty.
The response to this stimulus should also be reflected on other states whose sovereignty would be at stake as a result of 78 Leung, “Navigating the GDPR’s Extraterritorial Applicability to Processors: A Perspective from the Non-EU Cloud Service Provider.” 79 Svantesson, “The Extraterritoriality of EU Data Privacy Law – Its Theoretical Justification and Its Practical Effect on U.S. Businesses.” 80 Svantesson.
81 Azzi, “The Challenges Faced by the Extraterritorial Scope of the General Data Protection Regulation.” 82 Indriana Pramesti and Arie Afriansyah, “Extraterritoriality of Data Protection: GDPR and Its Possible Enforcement in Indonesia,” in Advances in Economics Business and Management Research, 3rd INCLAVE 2019, Volume 130 (Atlantis Press, 2019).
https://www.reuters.com/article/us-facebook-ceo-privacy-exclusive-idUSKCN1HA2M1 https://www.reuters.com/article/us-facebook-ceo-privacy-exclusive-idUSKCN1HA2M1 https://www.reuters.com/article/us-facebook-ceo-privacy-exclusive-idUSKCN1HA2M1 E-ISSN: 2503-0841, P-ISSN: 2356-4512 [57] the former.
With the PDPB, GDPR, and LGPD having a limited jurisdictional nexus, it is difficult to formulate successful international laws.
However, the findings of the current study reveal that with the gritty construction of the GDPR, EU states have managed to defend their sovereignty as well as their subjects’ interests without compromise.
India should also ardently promote its interests through data protection tools that piece across jurisdictions through space.
The PDPB is the best tool that India has to achieve what the EU did.
Since the PDPB is before the JPC, the road may still lead to a successful future of the nation.
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202 | DOI: http://doi.org/10.21776/ub.blj.2021.008.02.03 Need for Revamping Information Technology Laws in India Ivneet Kaur Walia1, Dinesh Kumar2 1 Rajiv Gandhi National University of Law, Punjab Email: ikwalia@gmail.com 2Department of Law, Panjab University, Chandigarh Email: dinesh@pu.ac.in Submitted: 2021-02-26 | Accepted: 2021-10-05 Abstract: Homo Sapiens have a distinct characteristic of being superior to other creatures.
They owe this superiority not only because they have the power to reason and rationalize but also because they have a tendency to organize themselves as a congregation, which can work in a group at a large scale.
The human instinct to improvise on its own inventions, have today resulted in mutation of a world from the stage of abacus to the era of Robotics.
For the sake of avoiding chaos and maintaining the sovereignty, every nation strives to eradicate the fear of dominance by the selected elite and hence the need of regulations and the law.
The aim of the paper is to highlight the grey areas and limitations existent in Information Technology Laws and focusing on the emerging domains of cyberspace.
Its also aims to draw the attention by the policymakers and the legislators to understand the need for amending the Information Technology Act, 2000 for including legal provisions related to emerging issues in cyber space.
The analytical research method is used to collect the data based on a systematic review of the existing sources of information and involved qualitative research to analyze the information.
The conclusion and suggestions of this paper will definitely be helpful in either drafting or amending a comprehensive law relating to IT keeping in view the evolving technologies and their applications.
Keywords: cyberspace; data protection; information technology; internet; laws I.
INTRODUCTION The growth and development of internet is understood in terms of two major phases: “firstly, its development from a military experiment to a civilian utility and secondly, in regard to the commercialization of the network” 1 .
In the first scenario, the first phase wandered around the doctrine of 1 John Naughton, 2016, The Evolution of The Internet: from Military Experiment to General ‘mutual assured destruction’ which regulated the standoff between United States and Soviet Union.
During this time an urgent need to develop a communication system capable of surviving a thermonuclear attack was felt.
This gave birth to the concept of packet switching, followed by the establishment of Advanced Research Project Purpose Technology, Journal of Cyber Policy, Vol.1, No.
1, p.7 http://doi.org/10.21776/ub.blj.2021.008.02.03 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 203 Agency (ARPA) within the Department of Defense which advanced research in military applications.
To encourage the shared resources research amongst the ARPA funded researchers across the United States, Advanced Research Projects Agency Network (ARPANET) was set up.
By 1981, Pentagon announced that all ARPANET will be required to adopt TCP/IP, which marks the beginning of the Internet that we use today.
During the same time a decision was taken to separate the civilian and military domains of ARPANET which bought about a major transition.
In the second phase, after 1995, ushered the era of commercial Internet, the launch of mosaic (the first display graphics inline), was a leap in development of internet and web and triggered the demand for internet amongst general public.
Companies like Netscape introduced products like Browser, Netscape Navigator etc.
then the growth of these networks has been ever encompassing with https, cookies, audio-video file sharing and its sudden concerns about intellectual property violations, data protections and cybercrimes, thus calling for the regulatory framework of this spontaneous changing technology.
The world is slowly transitioning from a paper usage mode to the paperless.
The Internet and the concept of World Wide Web is drastically mutating the world we are living in.
Poverty, famine and wars are no more of greater concern today, when compared to a cyber-attack on a defence establishment or an economic infrastructure of a nation.
The usage of internet and a computer system has never acquired a dominant position to an extent as it has done during the COVID-19 times.
The complete administration, academics and governance is now communicating using the electronic and digital language.
We are no more living in the world of English and French, we now belong to the world of coding, which is now an essential subject for the students in terms of the new education policy in India.
The world is spinning at such a velocity that we are unsure of our societal matrix and its ways of functioning with the algorithms.
This pandemic somehow marks the beginning of an advanced stage of digital India in making.
Years after adapting to the changing dimensions of cyberspace, we still fear of losing our personal and sensitive data and information to an accounted giant.
When too much of matter wanders in the space, that is to say, when too much of information floats in the networks of the cyberspace, there arises a necessity to regulate it.
The regulation is to maintain the chaotic bits and bytes into a systematic order to avoid chaos and hence falls the need of enacting laws and strengthening the enforceability regime.
There is a necessity to enact or strengthen the Information Technology laws in the country as they form the backbone of social, cultural and economic neurons of the country’s biological form.
The requirement of having a strong Information Technology legal framework is also essential because the laws of the physical world cannot be applied to the violations and transgressions of the cyberspace.
Internet demands both supportive and enabling legal infrastructure.
II.
LEGAL MATERIALS AND METHODS Evaluating the necessity of regulating the virtual space because of its vulnerabilities and societal dependency, the Information Technology Act, 2000 was thus enacted by the legislature on the lines of UNCITRAL Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 204 | Walia, Kumar Need for Revamping Information Technology Laws in India Model.2 The UNCITRAL model emphasized on providing legal recognition to electronic documents and online transactions.
It also amended, the other statutes to bring them into conformity with the electronic medium and jurisdiction, for instance, the Indian Penal Code, 1860, the Indian Evidence Act, 1872, The Banker’s Book Evidence Act, 1891, The Indian Contract Act, 1872 and The Reserve Bank of India Act, 1934 etc.
Therefore, basically it was an effort to provide legal recognition to all the electronic records.
The Amendment in 2008 which was made to the Information Technology Act, 2000 further emphasized and made an effort to focus on Information Security.
The present law on Information Technology Act is selfelaborative about the lack of upgradation or dynamic approach required for digital rule making in India.
Though, the Information Technology Act, 2000 is the only regimented law in India dealing with digitalization, yet it has been substantially amended just once in 2008.
We did notice minor modifications and moderations in certain laws from time to time, but they were all done to cope with some short-term contingencies affecting the political sphere.
For instance, the last amendment to the Information Technology Act, was made by Finance Bill, 2017 which merged and blended the Cyber Appellate Tribunal with Telecom Disputes Settlement and Appellate Tribunal.
This modification was again done due to lack of proper grievance redressal body.
One does not need to undertake a serious research on analyzing the grey areas of this law, a cursory look is enough to deduce the limitations, shortcomings and flaws of the existing Information Technology 2 Bajaj, Kamlesh K, Debjani Nag, 2005, Ecommerce: The Cutting Edge of Business, Tata McGraw Hill Pub., 2nd Ed, p. 301-304; see also N.S.
Nappinai, 2010, Cyber Crime Law in India : Laws in India.
Through this paper, we attempt to make a humble effort in highlighting the areas of the Information Technology laws which require the immediate attention of the legislature, because of the intensity of risk involved for numerous stake holders.
At some places, one would visualize the need to update the already existing provision, at the other, one would see the incompleteness of the statute, where it fails to cope up with the emerging issues in cyber space and from complete different dimension one may wish for an enactment of a complete new law on the subject, because of the magnanimity of the concerns.
The authors have resorted to the use of qualitative analysis.
Informal interviews were part of the data collection techniques.
The informal interviews and open-ended questions provided flexibility in some aspects of the study.
Interactions with members of the legal fraternity gave a clear picture about the practical problems and possible solutions for better implementation and enforcement.
The qualitative analysis also involved participant observations for data collection depending upon its systematic planning, validity and reliability.
The authors have also analyzed the legal jurisprudence and drafts of other jurisdictions pertaining to laws and regulations concerning information technology and cyber space to understand the concepts and models that can be well adopted.
The paper utilized data located in the primary sources like UNCITRAL Model Law, Budapest Convention, Information Technology Act etc.
The Secondary sources in the form of published and unpublished Has Law Kept Pace with Emerging Trends?
An Empirical Study, Journal of International Commercial Law and Technology, Vol.
5, No.
1, p.22-23 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 205 reports for example crime records, reports of international organizations were also referred to.
The authors have also examined the working papers, articles and surveys dealing with varied component s of virtual space and also referred to international online databases for elaborative understanding of the concept.
III.
RESULT AND DISCUSSION Lack of definition of Cyber Crime or Information Technology Offences The basic or the foremost error in the statute lies in the fact, that the very term “Cyber Crime” or “Information Technology Offences” is neither defined in the Information Technology Act, 2000 nor in its amended version of 2008.
This shows the deficiency or lack of certainty on the part of the legislators who couldn’t conform to any globally prevalent explanation of the term, nor could determine the relevant factors or components that would define the completion of an offence committed in cyberspace.
Thus, one will have to understand the term in a general sense, by assuming that, any offence committed by using a computer system will thus be a Cyber Crime or an Information Technology offence.
Inadequate Legal Framework for Dealing with Cyber Offences It must be understood that Information Technology Law, 2000 and its amended version of 2008 do not form a Cyber Security law in itself.
The reason for this is that, even after amending and adding more cyber offences to the list of Information Technology Offences in 2008, the statute still 3 Halder, Debarati and H Jaishanker, 2017, Cyber Crimes Against Women in India, Sage Publications, vol.
xviii, p. 122 does not cover every kind of Cyber-attack, breach or violation.
Moreover, the technology is growing at a faster pace, it’s both revolutionizing and reincarnating itself with improvements in technology.
Such a constant law will not be able to deal with this scenario whereas, cyber crime is serious issue in India3.
Resultantly, the cybersecurity system is still germinating and is not fully grown to adapt to the challenges of cyber threats.
This is the main reason, why the violations and transgressions in the cyberspace go unreported.
The legal framework escapes its obligation of laying down precisely, the duties and responsibilities circumscribing the identities of the stakeholders in the digital and electronic ecosystem.
When the laws are inadequate in matter and spirit to protect the citizens of a geographically demarcated area, how can the governmental institutions and organizations be kept safe from such transnational Frankenstein4.
Jurisdictional Issue As mentioned above, the transnational character of the crime adds to the basket of the miseries.
Although, there are provisions that deal with the jurisdictional concept in the Information Technology Act, still they are found to be improper and inadequate and certainly out of question when it comes to implementation and enforceability.
There is no clarity about jurisdictional issues when it comes to offences committed in cyberspace.
There is ambiguity and uncertainty about the liability of the intermediaries, because of which our policies are still in the germination process.
The personnel who are supposedly 4 Ishveena Singh, ‘India’s Cybersecurity Laws Inadequate for IoT, Big Data, Cloud and AI’ (2020) 30 (August) Geospatial World https://www.geospatialworld.net/blogs/iot-bigdata-cloud-and-cybersecurity-laws-in-india https://www.geospatialworld.net/blogs/iot-big-data-cloud-and-cybersecurity-laws-in-india https://www.geospatialworld.net/blogs/iot-big-data-cloud-and-cybersecurity-laws-in-india Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 206 | Walia, Kumar Need for Revamping Information Technology Laws in India required to tackle such issues and concerns, themselves lack the technical knowledge and skills to comprehend upon the problem in hand.
They do not have the intricate skills to identify the area or location from where the offence is committed, and to what place is it targeted.
They are baffled at the very thought of identifying the place of cause of action or where was the offence completed, as they hardly know the law.
In such a pitiable state, how could one assess the security safeguards and procedures required to be installed for raising the bar of cyber security.
Liability of the Intermediary One must not lose faith in the legislative initiatives of a nation, else the hope would fade away.
The recent effort or an example of active rule-making could be seen in the issue pertaining to responsibility and liability of the intermediary or what we call the Internet Service Providers.
5 This initiative was a result of deaths caused due to mob violence, who were incited by messages shared on social media.
These incidents prompted the government to lessen the protection given to intermediaries and bringing them to books for not regulating the content posted online.
The Inter-Ministerial Committee chaired by Rajiv Gauba, (Home Secretary, in 2018) submitted its report to the Home Minister concerning mob-lynching incidents that happened in the country.
They identified the circulation of fake messages on the social media to be the cause of such incitement.
The Committee condemned these acts of provocation and incitement caused due to circulation of fake news and rumors and laid down certain recommendations for instance, the Committee recommended the appointment of Superintendent of Police in 5 see also, Bainbridge, David, Introduction to Information Technology Law (Trans-Atlantic Publications, 2007), p.24 each district as the nodal officer who would take legal action against the perpetrators of mob violence.
The Committee had also taken up the matter and discussed with representatives of the Google, Facebook and Twitter to take all possible measures and eradicate or filter the objectionable content.
Furthermore, the Committee is also formulating guidelines that would initiate the grievance redressal over a complaint in few hours.
The new intermediary guidelines namely Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 so formulated in the light of Section 79 of the Information Technology Act, also require the companies to respond to complaints not only on orders by court and government agencies but also on the request of general public.
This will cut down the excuse which was taken earlier by these companies, stating that they would need thirty-six hours to address the complaint as most of the companies are based in West Coast of America and there is a time difference.
It was also recommended by the Committee that all such companies will place one such grievance officer in India to avoid such delays.
The rules of 2018 as mentioned above imposes an obligation on the intermediaries to prohibit publication of certain type of content by including a provision in their terms of agreement.
The draft rules prohibit a new category of information which threatens ‘public health or safety’.
This further raises issue of violation of freedom of speech and expression but that is more of a duty on judiciary to tackle the issue in its own way.
The formulation of such guidelines along with the attentiveness and sensitivity of the government on this matter is a welcome step, but we could benefit from Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 207 this only if we know the law and safeguard it.6 Implementing the Struck Down Section of Information Technology Act, 2000 The officials of the police department are still registering cases and detaining persons under the already struck down provision of Section 66A of the Information Technology Act, 2000.
7 This Section has already been struck down by the Hon’ble Supreme Court of India in 2015 in the case of Shreya Singhal v. Union of India8.
A recent case was noted in the year 2018 in Guntur region of Andhra Pradesh, where a man was arrested on the charge of impersonating as a woman on a dating app named Locanto, and asking for money.
This man cheated nearly 507 people of Rs 21.58 lakh.
Now while police booked Reddy (accused) under Section 420 (Cheating) of the Indian Penal Code, 1860.
The police also registered a case under Section 66A of the Information Technology Act, 2000 on the ground of misleading people through electronic communication.
Many of the police officers are not aware of the judgment and continue to abuse and misuse the power given under this Section.
The police officials excuse themselves of this responsibility on the pretext of not being aware of the Supreme Court judgments on the ground that such information is not circulated to them or to their departments from higher offices.
Therefore, such incidents have become a general routine affair, where the enforcement 6 Meghna Bal, ‘India's Information Technology Act Is Set to be Changed – What Should be Reworked?’ (2020) 30 (August) The Wire https://thewire.in/law/india-informationtechnology-act-changes/amp/ 7 Pallavi Kapila, 2020, Cyber Crimes and Cyber Laws in India: An Overview, in book: Contemporary Issues and Challenges in the Society, New Era International Imprint, p. 9-10 agencies easily ignore the Supreme Court rulings or even the amendments made by legislature on the pretext of ignorance of law9.
Lack of Updated Procedural Law and Human Resources The law relating to the Information Technology in India relies completely on Code of Criminal Procedure, 1973 for investigative, evidentiary and enforceability mechanism, but by doing this we face with certain technical limitations.
For instance, the Code of Criminal Procedure, 1973 in India drafted with the intent of dealing with acts or omissions happening in the real spatial world.
It is inadequate in its very molecular substance when question comes to dealing with matters concerning virtual or cyber matrix.
Moreover, the police personnel are not well acquainted and equipped with information and growing technological infrastructure.
Lack of technical knowledge and skills on this subject will lower the benchmark of the investigation process and will leave the probe addressed inadequately.
In reference to these issues, certain States have set up Cyber Cells with Cyber Forensic labs and are also becoming resourcefully adequate in terms of staff and technology.
The government is also pondering upon the thought of amending the existing the Information Technology law, so as to appoint a nodal investigative officer of atleast the rank of a Deputy Superintendent of Police (DSP).
Yet, it becomes difficult to 8 Shreya Singhal v. Union of India (2013) 12 SC 73.
9 Gopal Sathe, ‘The Supreme Court Struck Down Section 66A of the IT Act in 2015, Why Are Cops Still Using It to Make Arrests?’ (2020) 3 (August 30) Huffpost https://www.huffingtonpost.in/2018/10/15/thesupreme-court-struck-down-section-66a-of-the-itact-in-2015-why-are-cops-still-using-it-to-makearrests_a_23561703/?
guccounter=1 https://thewire.in/law/india-information-technology-act-changes/amp/ https://thewire.in/law/india-information-technology-act-changes/amp/ https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 208 | Walia, Kumar Need for Revamping Information Technology Laws in India comprehend, as how placing a higher rank policer officer to investigate a cybercrime issue would fill in the gaps of such deficiencies.
No literature highlights the lack of procedural laws and infrastructure when it comes to cyber space.
Need for Setting up Cyber Cell Units and one Autonomous Body to Check Policy and Practice To support stringent policing, we need to set up Cyber cells at district level and their enforcing regimes at the State level.
A Coordination Centre for Cyberspace may also be set up at a national level to facilitate data storage, data sharing, easy access to information etc.
Establishment of such facilities at these levels will ensure coordination amongst various functionaries and departments.
It would also enhance knowledge sharing which will further endorse upgrading of the infrastructure uniformly and such an establishment may also encourage research and development in the field of Information and Communication Technology.
Many of the States have already initiated the process of setting up such departments at district level.
But to have a uniform structure, certain guidelines may be followed.
The important points that are required to be kept in mind while establishing such infrastructure includes, firstly, a Charter, which would lay down not only the roles, responsibilities or the duties of the personnel but also the procedure, which one would follow on receipt of the complaint.
Secondly, Human Resources, which underlines the requirement of recruiting a specialized staff, which is not only technically sound and skillful, but also well aware of the technological advancements around him.
The staff may not exclusively be constituent of people from police department but may also include experts equipped with computer handling techniques.
Thirdly, Supervision, the infrastructure and human resources at different levels can interact freely and without any biases or influences only if a supervisory role is assigned to the establishment at the national level.
This supervision is necessary or rather essential because these cells will have to cooperate and coordinate with government agencies and the evidence given by them or a report on evidence provided by them, may be of much evidentiary value.
Hence, supervision is important to maintain the authenticity, credibility and integrity for the functioning of these cells.
Surveillance Reform On scrutinizing the prevalent laws and policies one may easily infer that India is not a surveillance country.
There is also an absence of substantial base to regulate surveillance in the country and one can substantiate this argument by looking at the Pegasus spyware controversy.
There is no data protection law in the country as compared to GDPR or similar regulations.
All the provisions regarding data protection are scattered in different rules and regulations but its implications are not discussed anywhere because there is a lack of legislation.
One may come across scattered provisions on surveillance in statutes such as, the Telegraph Act, 1885 and Section 69(1) of the Information Technology Act, 2000.
The problem with Telegraph Act is that it is an archaic legislation and is certainly not in conformity with technological revolution and issue with Section 69(1) is firstly, that it is not adequate, and secondly, it limits the scope of surveillance as it allows counted few to decrypt.
The matter pertaining to having stricter provisions, or rather a legislation came into scene after the controversy triggered in 2019, when a spyware named Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 209 Pegasus alarmed privacy concerns across the world.
India too was affected by this spyware.
This spyware hacks the information of the citizens of a nation.
The spyware is created by a group called NSO (Niv, Shalev and Omri) which surprisingly deals with only government’s and their agencies.
This indicates that induction of such a spyware can only happen with the knowledge and consent of the Government, which as a consequence raises eyebrows at the administration.
It is also pertinent to mention that the government did not order any investigation or probe into this matter.10 Considering such careless approach of the government, the Internet Freedom Foundation (NGO), emphasized upon the necessity of such surveillance reforms, which would protect citizens against the use of malignant malware and spyware, by way of offering privacy ‘protection by design’.
The Government notification allowed ten national agencies to decrypt the information and have the surveillance rights.
This is certainly prone to abuse and privacy violations.
The Inter-Ministerial Committee that was set up for examining role of Intermediaries also made a mention about the rights of surveillance.
It was in the exercise of power given under Section 69(1) of the Information Technology Act, 2000 and Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 that the competent authority got the power to authorize the Security and Intelligence Agencies for the purposes of interception, monitoring and decryption of any information which is generated, transmitted, received or stored in any computer resource under the said Act.
These rules have 10 Anam Ajmal, ‘Need Surveillance Reform, Privacy Law: Cyber Experts’ The Times of India, 2020 30 (August) circumvented the more specific rules that were laid down for phone tapping or digital communication as provided by the Telegraph Act, 1885 and have lent more scope and space to these agencies, which may arbitrarily violate privacy norms and raise concerns.
Information Technology (Amendment) Bill, 2018 India is yet to pass the Information Technology (Amendment) Bill, 2018.
The reasons for the delay are unexplained as this amendment bill was introduced in the parliament when the world was suffering from an online catastrophe by the name of ‘Blue Whale Challenge’.
This online game caused serious psychological damage and induced individuals to end their life.
This is just one example of many other online games that induce infliction of self harm.
The bill intended to insert certain provisions in the existing Information Technology laws that would prohibit publishing or transmission of any material repugnant to the cultural ethos (sought to introduce Section 67BA) and also make hosting of dangerous online games as a punishable offence (sought to introduce Section 79B).
The delay in passing of the Bill and non-insertion of these provisions is only making the nation more vulnerable, causing seismic waves in the socio-cultural fabric of our society.
The Indian Institute of Information Technology Laws (Amendment) Bill, 2020 Another Bill in the pipe line which is pending in the parliament is the the Indian Institute of Information Technology Laws (Amendment) Bill, 2020.
This bill intends to amend the Indian Institutes of Information Technology (Public-Private Partnership) https://timesofindia.indiatimes.com/india/needsurveillance-reform-privacy-lawcyberexperts/articleshow/7186 0462.cms https://timesofindia.indiatimes.com/india/need-surveillance-reform-privacy-law-cyberexperts/articleshow/7186%200462.cms https://timesofindia.indiatimes.com/india/need-surveillance-reform-privacy-law-cyberexperts/articleshow/7186%200462.cms https://timesofindia.indiatimes.com/india/need-surveillance-reform-privacy-law-cyberexperts/articleshow/7186%200462.cms Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 210 | Walia, Kumar Need for Revamping Information Technology Laws in India Act, 2017.
The Act declares certain institutions as institutes of national importance.
The amendments will ensure more research in the field of Information Technology and will help us build up a cyber community and workforce that can work in this industry.
The Bill when passed can bridge various gaps in reference to upgrading of technological infrastructure and human resources.11 Data Protection and Privacy The word that’s trending more than the data packets on a network in the cyber space is the term ‘Big Data’.
Big data analytics is the most upcoming advancement of technological era.
The responsibility of analyzing and storing data is a big responsibility as it jeopardizes privacy.
Accountability, Accessibility and Security principles require a privacy law to have an important component like supervisory assignments and redressal mechanism.
In the present times, India neither have any such strong regulatory authority nor any privacy or data commissioner.
Moreover, deficiency has also been felt in finding the independent data of specific cybercrime, which is difficult to ascertain, though National Crime Record Bureau provides an overall data for cybercrimes.
Certain data’s also need to be generated for instance, data related to national expenditure on cybersecurity, data pertaining to businesses that have suffered from crimes like phishing or data breaches 11 Devika, ‘The Indian Institute of Information Technology Laws (Amendment) Bill, 2020,’ (2020) 30 (August) SCCONLINE https://www.scconline.com/blog/post/2020/03/06/ the-indian-institutes-of-information-technologylaws-amendment-bill-2020-introduced-in-loksabha/ 12 see also, Deva Prasad M and Suchitra Menon C, 2020, The Personal Data Protection Bill, 2018: India’s Regulatory Journey Towards A pertaining to thefts of finances or information from governmental institutions.
The increased activities of the individuals in the cyber world has initiated an ‘information sharing culture’.
The laws dealing with Data Protection in India presently includes, firstly, the Personal Data Protection Bill, 2019 which is currently pending in the parliament.
Secondly, Section 43A of the Information Technology Act, 2000 (amended in 2008), which deals with security practices and procedures relating to possessing, dealing or handling of any Sensitive Personal Data or Information (SPDI) 12 .
Thirdly, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, but the rules do not exclusively deal with the right to privacy.
The Personal Data Protection Bill, 2019 which is still pending in the parliament is the online exclusive legislative piece of work which will “ensures protection to privacy of the individual13 as a fundamental rights and privacy protection as a vital part of information privacy” 14 .
When the Bill becomes an Act, it will supersede Section 43A of the Information Technology Act, 2000 (amended in 2008) and the Sensitive Personal Data or Information Rules, 2011.
Other regulators, which provide for guidelines in regard to data privacy and data protection in India include the Reserve Bank of India which mandates all system providers to store the payments data in India, certain cyber security guidelines have also been Comprehensive Data Protection Law, International Journal of Law and Information Technology, p.2 13 Aditi Subramaniam and Sanuj Das, 2021, The Privacy, Data Protection and Cybersecurity Law Review: India, The Law Reviews, Ed.
8, p.1 14 Mandeep Kumar and Puja Kumari, 2020, Data Protection & Rights to Privacy: Legislative Framework in India, Journal of Critical Review, Vol.
7, No.
11, p. 3427 https://www.scconline.com/blog/post/2020/03/06/the-indian-institutes-of-information-technology-laws-amendment-bill-2020-introduced-in-lok-sabha/ https://www.scconline.com/blog/post/2020/03/06/the-indian-institutes-of-information-technology-laws-amendment-bill-2020-introduced-in-lok-sabha/ https://www.scconline.com/blog/post/2020/03/06/the-indian-institutes-of-information-technology-laws-amendment-bill-2020-introduced-in-lok-sabha/ https://www.scconline.com/blog/post/2020/03/06/the-indian-institutes-of-information-technology-laws-amendment-bill-2020-introduced-in-lok-sabha/ Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 211 issued for insurance companies in 2017 by the Insurance Regulatory and Development Authority of India.
Moreover, Security Exchange Board of India (SEBI) has also in 2016 provided Cyber Security and Cyber Resilience Framework of Stock Exchanges, Clearing Corporations and Depositories.
Furthermore, Ministry of Health and Family Welfare notified the draft on Digital Information Security in Healthcare Act and invited for Public Comments.
In addition to this, a concept of ‘Internet of things’ is evolving as a system or a web which interconnects individuals, things and the information technology systems reactive to physical and virtual forms of information.
It aims to enhance and improvise the communication between individuals, systems and things etc.
If such an interaction takes place amongst them, it will obviously result in personal information sharing and voluminous data exchange resulting into privacy and data protection issues.
In the light of this government has released a draft on ‘Internet of Things Policy’ in 2015.
These concepts are giving rise to ‘Machine to Machine’ ecosystem and introducing concepts like Machine learning.
Every such development breeds on already existing information and data floating in the cyberspace.
Thus, safeguarding the privacy and data of citizens attain priority concern in this field.15 Artificial Intelligence When the computers acquire or imitate human intelligence, where they are able to foresee or visualize the requirement and also perform speech recognition, that marks the entry point to the world of Artificial Intelligence.
Indian law neither has any 15 Vrinda Bhandari and Renuka Sane, ‘Analysing the Information Technology Act (2000) from the Viewpoint of Protection of Privacy’ (2020) 30 provision nor any law to deal with ethical, legal and regulatory implications of Artificial intelligence.
In the other parts of the world where the explosion of Space X Falcon 9 is being questioned and accidents of the driverless car of Tesla’s are being regulated by the laws of the western world.
India is still struggling to bring the aggregators such as Uber and Ola to books when legal issues or conflicts arises.
In India, we neither have the literature on product liability nor have we built jurisprudence on tort of wrongful death.
For every such wrong, we invoke Section 43A of the Information Technology Act, 2000 (amended in 2008) and proceed in Consumer courts for a legal action either for defect in product or because of deficiency in services.
Though, the Ministry of Electronics and Information Technology has released four Artificial Intelligence Committee Reports in 2019 which deals with Platforms and data on Artificial Intelligence, using Artificial Intelligence in national missions and programs in key sectors, analyzing and mapping technological capacity of imbibing Artificial intelligence technology and lastly the cybersecurity issues, still a long path needs to be treaded to come at par with the other countries of the world.
In 2018-2019 budget NITI Aayog is mandated to establish the National program on Artificial Intelligence.
Though, it’s a positive step and a commendable one too but on the other side it also reflects our unpreparedness and tenderfoot on this issue.
Another issue pertaining to Artificial Intelligence is that Indian law does not recognize Artificial Intelligence entity as a legal person.
This raise concerns under various laws, for instance, the Indian Contract Law mandates both the parties (August)The Leap Blog https://blog.theleapjournal.org/2016/03/analysing -information-technology-act.html?m=1 https://blog.theleapjournal.org/2016/03/analysing-information-technology-act.html?m=1 https://blog.theleapjournal.org/2016/03/analysing-information-technology-act.html?m=1 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 212 | Walia, Kumar Need for Revamping Information Technology Laws in India forming a contract to be competent legal persons.
Thus, Artificial Intelligence entity cannot enter into a valid contract both in the cyber space and in the physical space.
There are concerns that in future the human workforce will be replaced by the workforce of the artificially intelligent robots and our labor laws are ill equipped to deal with such a scenario.
A conflict will also arise in the field of Intellectual Property law where the creation of the Artificial Intelligent being will be questioned for grant of Intellectual property protection.16 Blockchain Technology and Cryptocurrency Most of the blockchain based projects in India fail to move beyond a point because of the lack of laws and regulatory imperfections.
17 As the provisions of the Information Technology Act precludes the usage of digital signatures to transactions or documents involving immovable property.
This restricts and limits the usage of blockchain based applications in a country where majority legal issues and conflicts pertain to property.
Now, in regard to cryptocurrency, the Supreme Court of India has granted a legal back to Bit Coins but still the country lacks a proper legal framework.
In July 2019, Government released draft legislation, ‘Banning of Cryptocurrency and Regulation of Official Digital Currency Act, 2019’ which seeks to ban any person from ‘mining, generating, holding, selling, dealing 16 Devika, ‘Government ReleasesArtificial Intelligence Committee Reports’ (2020) 30 (August) SCCONLINE https://sccbloglinux.azurewebsites .net/post/2019/12/05/government-releasesartificial-intelligence-committees-reports/.
17 See also NITI Aayog, 2020, Blockchain: The India Strategy (towards enabling ease of business, ease of living, and ease of governance) part 1, Draft Discussion Paper, NITI Aayog , p.28-30 in, issuing, transferring, disposing of or using cryptocurrency in the territory of India.
Also, in September 2019, the Ministry of Finance distinguished the categories of crypto currencies, specifically, Utility tokens and Security tokens.
Due to lack of legal provisions, the burden falls on the shoulders of the Reserve Bank of India to issue cautionary circulars in this regard.18 There is a lack of conceptual jurisprudence in the national context, when it comes to emerging disruptive technologies like blockchain or adaptation of Artificial Intelligence techniques in the industrial sector.
Certain sections of the Information Technology Act, 2000 and 2008, needs a careful examination like, Section 69A, 43A, 67C etc.
The research is to be done while maintaining a delicate balance between emerging technologies and constitutional rights under Article 19 and 21.
When we already have such immense research gaps are we ready for dealing with the drone technology, cryptocurrency, dome systems in military applications or for combating an army of killer robots.
IV.
CONCLUSION AND SUGGESTIONS To conclude, one may say that the list of gaps and limitations is never ending as the sphere of the virtual world is acting like a black hole.
The laws enacted or amended today must resonate with necessities of the future world.
One cannot make imperfections perfect in an ever-stretching domain, but 18 Bhavana Alexander and Kayal Manivannan, ‘Disruptive Tech like Blockchain is Here to Stay, Law Will Have to Simply Catch Up’ (2020) 30 (August) The Economic Times https://economictimes.indiatimes.com/smallbiz/security-tech/technology/disruptive-tech-likeblockchain-is-here-to-stay-law-will-have-tosimply-catch-up/articleshow/59397014.cms?utm_ source=content ofinterest&utm_ medium=text & utm_campaign=cppst.
https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/59397014.cms?utm_%20source=content%20ofinterest&utm_%20medium=text%20&%20utm_campaign=cppst https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/59397014.cms?utm_%20source=content%20ofinterest&utm_%20medium=text%20&%20utm_campaign=cppst https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/59397014.cms?utm_%20source=content%20ofinterest&utm_%20medium=text%20&%20utm_campaign=cppst https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/59397014.cms?utm_%20source=content%20ofinterest&utm_%20medium=text%20&%20utm_campaign=cppst https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/59397014.cms?utm_%20source=content%20ofinterest&utm_%20medium=text%20&%20utm_campaign=cppst https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/59397014.cms?utm_%20source=content%20ofinterest&utm_%20medium=text%20&%20utm_campaign=cppst Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 213 norms can certainly be set up using terms like ‘technology collateral or incidental thereto’ with every such provision which will indicate any advancement in technology.
Smart drafting of the laws in the ever-advancing world of networks and technology will lessen the call for over legislation, re-enactment and unending amendments.
The government’s role will always remain a priori and quintessential in matters of drafting policies, laws and regulations.
However, for now, an immediate and urgent attention is required from the side of the government to update the laws, as the whole nation is living and even functioning in the virtual space more than the physical one.
The state must enact stringent laws for intermediary liability, digital ethics and immediate redressal of grievances related to cyber space besides urgently working on Data Protection Bill to deal with privacy concerns.
It’s high time to provide a regulatory regime for emerging technologies like blockchain, cryptocurrencies and drone etc.
We have adapted to Artificial Intelligence and Real time intelligence for prevention of cyber intrusions and violations.
Also, no research is complete without adding an element of innovations.
For dealing with regulatory grey areas, specific innovations can be put in place for instance: Intuitive Intrusion Detection.
This application defends against malicious cyberattacks, without having to be taught what those threats may look like, Simple Image Preview in Live Environment (SImPLE), an application can be used in streamlining digital forensic investigations.
This application enables rapid identification of offensive and illegal digital material etc.
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https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/593970%2014.cms?utm_source=contentofinterest&utm_medium=text&ut%20m_campaign=cppst https://economictimes.indiatimes.com/small-biz/security-tech/technology/disruptive-tech-like-blockchain-is-here-to-stay-law-will-have-to-simply-catch-up/articleshow/593970%2014.cms?utm_source=contentofinterest&utm_medium=text&ut%20m_campaign=cppst https://thewire.in/law/india-information-technology-act-changes/amp/ https://thewire.in/law/india-information-technology-act-changes/amp/ https://thewire.in/law/india-information-technology-act-changes/amp/ https://www.geospatialworld.net/blogs/iot-big-data-cloud-and-cybersecurity-laws-in-india https://www.geospatialworld.net/blogs/iot-big-data-cloud-and-cybersecurity-laws-in-india https://www.geospatialworld.net/blogs/iot-big-data-cloud-and-cybersecurity-laws-in-india https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/?%20guccounter=1 https://blog.theleapjournal.org/2016/03/analysing-information-technology-act.html?m=1 https://blog.theleapjournal.org/2016/03/analysing-information-technology-act.html?m=1 https://blog.theleapjournal.org/2016/03/analysing-information-technology-act.html?m=1 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Walia, Kumar Need for Revamping Information Technology Laws in India | 215 The Reserve Bank of India Act, 1934 the Sensitive Personal Data or Information Rules, 2011 The Telegraph Act, 1885 List of Cases Shreya Singhal v. Union of India (2013) 12 SC 73
DOI: http://doi.org/10.21776/ub.blj.2021.008.01.01 | 1 Expanding the Frontiers of the Right to Work through Migration: An Evolving Regime Uche Nnawulezi, Ph.Da, Bosede Remilekun Adeuti, Ph,D*b aFaculty of Law, Alex Ekwueme Federal University Ndufu-Alike Ikwo, Ebonyi State Email: uchennawulezi@gmail.com *bMinistry of Justice, Alagbaka, Akure, Ondo State.
Nigeria Email: bosedelizabeth@gmail.com Submitted : 2021-01-16 | Accepted : 2021-04-28 Abstract: This paper explores the strategic interest in promoting the right to work through migration.
Ideally, migrant workers whether under contract or other formal arrangements, or simply setting off on their own initiative should be given a basic understanding of the language, culture, legal, social, and political structures of the states to which they are going.
This paper therefore set out to examine why most migrant workers experience challenges in securing employment, while some have to surmount far more barriers either before their departure, or at the time of their admission to the state of employment of all conditions applicable to their admission, as well as of the requirements they must satisfy in the state of employment and the authority to which they must satisfy in the state of employment and the authority to which they must address themselves for any modifications of those conditions.
The methodology underpinning the research is essentially descriptive, thus, deductive logical “content analysis” is employed.
This paper argues that the consequences of migration and the situation of vulnerability in which migrant workers and members of their families frequently-find themselves cannot only be solved by having a functional fundamental human rights approach on the complexity of social, economics, and cultural issues prevalent in the migration regime.
It concludes that with due respect to the author and to his concern for the protection and promotion of the right to work through migration, is to say the least, is a first step towards a sustainable promotion of the right to work through migration.
Keywords: right to work; migration; regime; promotion; migrant workers.
I.
INTRODUCTION This paper arose out of the compelling need to examine the existing laws on migration and institutional discourses relating to the practicability of promoting the right to work through migration which is increasingly relevant both from the practical point of view or philosophical.
It sets out principles, standards and norms that states need to consider when amending or drafting legislation relating to the promotion of the right to work through migration.
However, given the vulnerability of migrant workers, and members of their households, it has http://doi.org/10.21776/ub.blj.2021.008.01.01 mailto:uchennawulezi@gmail.com mailto:bosedelizabeth@gmail.com Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 2 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... become necessary to examine the level of violations of the right of Migrant workers globally since it has remained an issue of concern.
Moreover, the numbers of states that ratified or sign international regulation regarding Migrant Worker also low.1 However, the essence of adopting these measures is to ensure that states parties undertake, in accordance with the international instruments concerning human rights.
To respect and to ensure that all migrant workers and members of their families within their territory or subject to their jurisdiction are not subject to any form of discrimination.2 More so, this paper adopts a Human Rights based approach in ascertaining the practicability of promoting the right to work through migration.
In other words, it must be noted that at the international level operation, several efforts are made by human rights practitioners to ensure the full accomplishment of international human rights documents that will guarantee the protection of migrant's workers’ rights in their place of residence.
It uses International and regional human rights instruments, and particularly, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,3 Universal Declaration of Human Rights,4 International Covenant on Economic Social and Cultural Rights,5 international Covenant on Civil and Political Rights,6 International 1 Boucher, A., ‘Measuring Migrant Worker Rights Violations in Practice: The Example of Temporary Skilled Visas in Australia’ (2019) 61(2), Journal of Industrial Relations, p. 278 2 Article 7, the international convention on the protection of the rights of all migrant workers and members of their families (1990).
3 Arguably, protected migrant the most, see : Ian M. Kysel, ‘Promoting the Recognition and Protection of The Rights of All Migrants Using a Soft-Law International Migrants Bill of Rights’ (2016) 4(2), Journal on Migration and Human Security, p.31 convention on the Elimination of All Forms of Racial Discrimination,7 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,8 and convention on the Right of the Child,9as the basic frameworks that addresses the right to work.
Notwithstanding the foregoing broad powers of the above international legal frameworks, it is a considered view of this paper that the Migrant workers Bills of Rights is yet to grapple with the incessant violations of Migrant workers’ rights across the globe which has raised several important theoretical questions bothering on their occupational status.
In light of the human rights challenges of the right to work through migration that affects migrant workers and members of their households, the realities of global migration have forced the writer to rethink not only on the policies of migrant admission, but also their allocation of rights, burdens, and benefits, that needs to be addressed through a multi-dimensional approach.
In the circumstance, it must be stated that the inability of the various conventions to address this intractable human rights Problems has led to several Debates on the compelling need to promote the right to work through migration wherein migrant's rights will be adequately protected through global and municipal legislations.
To meet this purpose also requires examining those policies that have unwittingly or not most 4 Universal Declaration of Humans, (1948) 5 International Covenant on Economic, Social and Cultural Rights (1966) 6 International Covenant on Civil and Political rights (1966) 7 International Convention on the Elimination of All Forms of Racial Discrimination (1965) 8 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984) 9 Child Rights Convention (1989) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... | 3 fostered the marginalized and exclusion of migrant workers and members of their households within their place of residence.
This article is structured into three sections.
The first section will succinctly discuss the general notion of migrant workers and their right to work, and secondly, there is an elaboration on the basic concepts of this paper, this is followed by a detailed overview of the findings.
Subsequently, this paper examines the right to work under international law with reference to relevant international and regional laws.
This paper concludes with a review of their implications on migrant workers and members of their families and to underline the overall relevance of promoting the right to work through migration.
These views are justified considering the human rights index on arbitrary expulsion of migrant workers.
II.
METHODS AND LEGAL MATERIALS The research methodology of this study was a descriptive survey wherein the paper adopted an analytical and qualitative approach.
It built its arguments on existing literature works which is achieved by a synthesis of ideas.
On the other hand, this approach was considered more appropriate because of the compelling need to overhaul the legal frameworks on the right of Migrant workers to work outside their place of origin which has been an intractable problem given their vulnerability to all forms of discriminations.
III.
RESULT AND DISCUSSIONS Definitions and Contextual Issues 10 See International Organization for Migration, ‘Glossary on Migration’, 2nd ed, in International Migration Law, No.
25 Geneva, (2011), pp.
61-62. Who is a Migrant?
Recent challenges and developments have made the writer to examine the conceptual interpretations and meanings of the above concept in order to ascertain whether migrant workers and members of their families have the right to enter and remain in their host states.
Also much has been said or written about the concept “migrant”, but more importantly, International Organization for Migration (IOM) perceives it from the common lay understanding of “a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons”.10 By way of extension, the term includes a number of well-defined legal categories of people, such as migrant workers, person whose particular type of movement are legally defined, such as smuggled migrants, as well as those whose status or means of movement are nor specifically defined under international law.
However, there is no universally accepted definition of the concept “migrant”.
In this sense, it should be noted that several human rights organizations have defined migrant “as any person or individual who is domiciled in a state other than his or place of origin or stateless persons outside his or her place of origin11 to seek protection or opportunities for a better means of survival.12 More so, taking into account various conception on migrant, this paper noted that “migrant workers” refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state 11 See Recommended Principles and Guidelines on Human Rights at International Borders, OHCHR, Geneva, (2014), Para 10.
12 International Federation of Red Cross and Red Crescent Societies “policy on migration”, (2009) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 4 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... of which he or she is not an origin.13Thus, the above provision of the convention is applicable except as otherwise provided hereinafter to all migrant workers and members of their households without distinction of any kind such as sex, race, color, language, religion, conviction, ethnic or social origin, nationality, marital status, birth or other-related issues.14 This perspective, however, takes into account specific legal categories such as stateless persons and refugee on whether special protection is to be accorded to them both under international human rights law or humanitarian law.
In other words, and in all contexts, there seemed to be no definite definition of a migrant, but however, these can be achieved by examining who is a migrant worker?
While this trend is broadly true, Article 2, paragraph 1 of the International Convention on the Protection of the Rights of all Migrants Workers and Members of their Families15 defines a “migrant worker” as a person who is to be engaged, is engaged or has been engaged, in a remunerated activity in a state of which he or she is not a national.
In contrast, it should be noted that Article 3 of the convention16excludes the application of the term to persons sent or employed by international organizations and agencies; persons sent or employed by a state outside its territory to perform official duties, persons taking up residence as investor in a state other than that of which they are nationals, refugees or stateless persons, students and trainees and seafarers and workers on offshore installations who have not been admitted to take up residence and engage in 13 See Article 1 of the International Convention on the Protection of the Rights of All Migrants Workers and Members of their Families (1999) 14 Article 2 (1) of the International Convention on the Protection of and Members of their families (1990) a remunerated activity in the state of employment.
Given the above scenario, the preamble to the International Convention on the Protection of the Rights of all Migrants Workers and Members of their Households reaffirms the universality of the principles and standards of human rights embodies in the International Bill of Human Rights and other human rights treaties or instruments.
Also, recognizing that state has the primary responsibility for guaranteeing compliance with international standards on the necessary respect for and protection of migrant workers and members of their families, international action since the early steps of the International Labour Organization confirmed the vulnerability of migrant workers and their families to exclusion from the enjoyment of human rights and revealed the scope of this problem all over the world.
It is important to highlight that the operational reality in today’s status of migrant workers and members of their households has shown that these concerns remain of timely relevance, as insecurity and exploitation of workers from some African states many of them were kept in very bad conditions similar to slavery, servitude and forced labour which of course, have a major impact on their general wellbeing.
On the other hand, the question arises as to where international human rights law has an added value to the protection of the rights of migrant workers and members of their households with regard to the provisions of adequate protection of their human rights outside their place of domicile.
It is argued here that international human rights law may 15 Ibid, Article 3 16 See The Universal Declaration of Human Rights (1948) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... | 5 compliment national laws in relation to the more indirect effects of insecurity or arbitrary or unlawful interference with his or her privacy, family, home, correspondence or other communications, or to unlawful attacks on his honor or reputation.
In furtherance of the efforts to guarantee adequate protection of Migrant outside his place of origin, it must be acknowledged that a key argument behind the issue of migrant's rights protection outside his place of origin has been that some of these Migrants are undocumented which explains their vulnerability in their place of residence.
International Human Rights Law, drawing from the foundations laid in the Universal Declaration of Human Rights (UDHR) and Article 7 and 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), also enshrines the right of everyone to the enjoyment of just and favorable conditions for work and as well the right of everyone to social security and social insurance.
Undoubtedly, the articulation of human rights standards under international law has moved the applicability to human rights beyond “rights of citizens”.
In this sense, this paper submitted that this right like Economic Social and Cultural Rights, must be seen in a long-term perspective which is evident from the general obligation.
Moreover, under Article 7 of the Universal Declaration of Human Rights said that: “All are equal before the law and entitled without any discrimination to equal protection of the law.
All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination” 17 International Convention on the Protection of the Rights of Migrant and Members of their households, Article 17 Consequently, every labour has the same rights even under the national law.
Similarly, with regards to the core obligations relating to the employment situation of migrant workers, Article 25, 40, 54 and 55 of the International Convention on the Protection of the Rights of Migrant and Members of their households respectively interpreted in great details the nature of the general obligations on the state.
It must be emphasized that the International Convention on the Protection of the Rights of Migrant and Members of their households has of course, provided new grounds in articulating group rights for migrant workers and their families.
In particular, notwithstanding these important advances in terms of protection, it must be acknowledged that Article 22 protects migrant workers and their households from “measures of collective exploitation” by requiring that issues of expulsion be re-examined and treated personally.
Also, current mainstream approaches to migrant's protection, as provided in Article 3117 clearly shows that it imposes obligations on host countries to ensure respect for the cultural identity of migrant workers and members of their households.
For the purposes of this paper, it is significant to note that Article 26 affirms the rights to take part in meetings and activities of trade unions and any other associations established in accordance with the law, with a view to protecting their economic, social, cultural and other benefits18.
That said, this scope of positive obligations under the convention, of course, does not require states to ensure equality of treatment between the nationals and the 18 International Convention on the Protection of the Rights of Migrant and Members of their households, Article 45 (1),(2),(3),(4) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 6 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... migrant worker in relation to access to participation in the cultural life of his host Country of residence but, it rather created an obligation on the host country of residence to pursue a policy that will facilitating the integration of children of migrant workers in the local school system of their residence, particularly with respect to teaching them the language they will understand, and enjoined them to be more proactive on the issue of teaching migrant worker’s children in their native dialect as well as their general way of living.19 While undoubtedly important, it should be borne in mind that the expression of human rights instrument will to a large extent guarantees protection as provided in the convention, and has presented a remarkable development of international human rights law around the globe.
In general terms, it should be noted that the above assertion has been an object of contention on the definition of human rights and who interprets it and of course, the challenges the position that human rights is essentially the weapon of the powerful to retain power over the powerless.
The Philosophy of Human Rights.
In highlighting the links between human rights norms and migrant workers, this brings to the fore the states responsibility, the nature of rights, migrants and protection in a manner that unfortunately has been lacking20 in most of the actions and concerns on migrant's rights protection around the globe.
Usually, migrant workers are invisible population until problems surrounding them arise and their status 19 International Convention on the Protection of the Rights of Migrant and Members of their households, Articles 16, 20-22 20 Liliana Lyra Jubilut, and Rachel de Oliveira Lopes, ‘Stategies for the Protection of Migrants cannot be ignored by the government anymore,21 just the state recognized them.
However, in a broader Perspectives on migrant’s rights, there is a phenomenon in human rights law which is quiet strange to humanitarian law namely, the concurrent existence of both universal and regional treaties, and also the fact that most of these make a difference between “Civil and Political Rights” and “Economic, Social and Cultural Rights” respectively.
In this sense, there is perhaps a clear difference between this treaties ie.
“civil and political”, firstly, this requires acknowledging respect for the rights provided therein, and secondly, the “Economic Social and Cultural”, this of course, imposes an obligation on the state to take reasonable steps in order to achieve a fruitful actualization of these rights.
In view of this broad understanding of the scope of these rights, a conceptual question of importance is whether human rights law is applicable at all times thus, given that the philosophical basis of human rights is that by virtue of the fact that people are human, they always possess them.
It would be crucial, for example, to State that human rights is not negotiable whether one is at his home country or at his country of residence.
However, the answer in one sense is that human rights continue to be applicable at all times.
It is however submitted that any other conclusion would be unacceptable in view of the context and in light of the object and purpose as provided under the convention.
As shown above, it is likely also that the convention does not create new rights for migrants but aims at through International Law’, (2017) 5(1), Groningen Journal of International Law, p.42 21 William Gois and Karen Campbell, ‘Stranded Migrants: A Call to Rethink The Current Labour Migration Paradigm’, (2013) 2(2), Migration and Development, p.170 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... | 7 guaranteeing equality of relationship as well as the same working conditions for all migrants and citizens of that country as the case may be.22 The Concept of Migration It is argued here that the emerging norms of the international law on development imply that all state should as a matter of fact co-operate for development.
This is the logical and necessary corollary of the right to work through migration.
These norms are incompatible with classical notions of sovereignty and the associated doctrines of territorial exclusivity and integrity.
However, as migration issues has remained intractable problems and challenging, the reason for understanding this relatively new area under international law has become more daunting.
It is, however, worthy to note, for the purpose of clarity that not only can this particular approach encourages right to work through migration but, it also frequently encourages development.
From an operational point of view, and, in literal terms, the concept “migration” simply means “movement of people or an individual or group of individuals from one location to another which could either be in permanent or temporary nature”.
Similarly, migration according to Webster Dictionary is implied defined as “the act or an instance of moving from one country or region to settle in another” 23.
It should be pointed out that in as much as the concept “migration” has various meaning, it would be interesting to note that the meaning of migration is changing simultaneously with the passage of 22 See United Nations Demographic and Social statistics, Population Division, New York 23 Merriam-webster dictionary online, https://www.merriamwebster.com/dictionary/migration time.
Recently, the scope and definition of migration have become more complicated.
Moreover, such an understanding would also illuminate the conditions under which migrant men and women found themselves in their place of residence.
Given the increasing importance of migration, efforts should be made to adopt treaties on international migration that will protect international migrants in their place of residence.
In this sense, international migrant is simply defined as "a person who migrates from his place of residence to another place of residence outside that of his or her usual residence for a period of at least one calendar year".24 Apart from this significant definition developed for clarification purposes, it must be noted that the development on the concept migration as well as on the definition of migrant would further highlight on the categories of migrant as well as the complexities of the concept of migration.
Thus, it should be fairly uncontroversial that the idea espoused in this paper is situated within the context of different understanding of migration.
However, this paper noted that the proposed Agenda tagged"2030" has its primary concern in addressing some of the intractable problems of international migration by incorporating explicitly some of the migration-related targets provided in the Sustainable Development Goals that will encouraged both developed and developing countries in promoting orderly, safely, friendly and responsible migration as well as to execute a proactive migration policies in light of the international migration issues.
It is instructive to note that the wording of the 24 IOM, International Migration Law: Glossary on Migration, Geneva, IOM, 2019, p. 112; See also: migration and the 2030 Agenda for Sustainable Development (2018) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 8 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... proposed agenda has conceived the issue of migration as one that promotes international collaboration in the world today.
In this regard, it is clear from the above that the impact of migration on the right to work cannot be overemphasized.
On the other hand, it must be emphasized that it has immensely contributed to all spheres of human development ranging from economic and social transformation around the globe, and more so, has significantly remained the only tool used in achieving the proposed 2030 Development Goals Agenda.
Indeed, a close examination of the two concepts “migration and development" has shown that there is a relationship between migration and development which is an evolving globally recognized concepts, but interestingly, it has remained undeveloped.
In this respect, this paper submitted that the immediate challenges that the above has posed is that the conceptual definitions of “simply”, “orderly”, “recognized” and "acceptable” definition of migration was reasonably provided as it is applicable at the global level.
In a similar fashion, it is significant to note that while the two concepts are commonly applicable in all spheres of life; the categorization of these types of population mobility has remained unclear, thus, leaving much room for further clarification.
On the other hand, it may be argued that there are conceptual challenges in the definition of the migration.
However, this brings to fore that there is no generally 25 International Convention on the Protection of the Rights of Migrant and Members of their households, Article 7 26 International Covenant on Economic and Political Rights (1966) 27 International Covenant on Economic and Political Rights (1966); see also: Chantal Thomas, ‘Convergences and Divergences in International Legal Norm on Migrant Labour’, (2011) 32, accepted definition of the term “migration” globally.
The Principle of Non-Discrimination According to the provisions of Article 7 of the Convention,25 it should also be noted that states parties should all promote and or ensure that all the rights provided in the convention are respected without any distinction of sort.
Also, in the same vein, Article 1 also provides that the convention applies to all migrant workers and members of their households without distinction of any sort.
This is evidence by the fact that there is a clear limit to this approach.
However, while the pronouncement of the restricted instances of distinction is illustrative and not exhaustive, it is worth noting that the list as provided in the convention is more elaborate than those provided in other human rights treaties such as the International Covenant on Economic Social and Cultural Rights26as well as those provided under the International Covenant on Civil and Political Rights respectively.27 Significantly, the above dominant view suggests that both Articles 2 and 7 of the Universal Declaration of Human Rights also provided same.28 Interestingly, Articles 2(2), 2(3) and 3 of the International Covenant on Economic Social and Cultural Rights,29 Articles 2(1), 3 and 26 of the International Covenant on Civil and Political Rights,30 Articles 2(1) and 5 of the International Convention on the Elimination of All Forms Comparative Lobour &Policy Journal, 405, P. 415-418 28 Articles 2 and 7 of The Universal Declaration of Human Rights (1948) 29 Articles 2(2), 2(3) and 3 of the International Covenant on Economic, Social and Cultural Rights (1966).
30 Articles 2(1) 3 and 26 of the International Covenant on civil and Political Rights (1966) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... | 9 Racial Discrimination,31 Articles 2, 9-16 of the Convention on the Elimination of All Forms of Discrimination against women,32 and of course, Articles 2(1) (2) of the Convention on the Rights of the Child,33 however, contained non-discrimination and equality in their various provisions.
This threshold is understood to mean applicable international instruments and hence imposes significant restrictions against discrimination.
Interestingly, it is widely accepted that the principle of non-discrimination as provided under the international covenant on the protection of the rights of migrant workers and members of their households are broader than those in the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights, and also in the International Covenant on Civil and Political Rights.
Policies and strategies to support both of the covenants are needed34 such as “equal protection under labour laws, antidiscrimination laws, and family laws”35.
This is in keeping with the notion that new instruments should build upon existing ones and if necessary, expand to reflect changing contexts.
It should be acknowledged that new grounds in the migrants workers convention 31 Articles 2(1) and 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) 32 Articles 2, 9 -16 of the Convention on the Elimination of All Forms of Discrimination against Women (1979).
33 Articles 2(1) and 2 of the convention on the rights of the child (1989).
34 IOM, International Dialogue on Migration, Migrants and The Host Society: Partnership for Success, No 11, IOM and Australian Government, 2008, P.85 35 Martin Ruhs, ‘Rethingking International Standards for the Protection Migrants Workers: The Case for a ‘Core Rights Approach’’ (2017) 111, American Journal of International Law, p.173 has emerged which includes conviction, nationality, age, and economic position.
Understanding the Right to Work Under International Law The philosophical under pinning’s of the right to work has been discussed at length, and this paper will not provide an exhaustive treatment.
In understanding the human right to work under international law, it should be pointed out that this human right to work is fully recognized in both international and regional frameworks.
In the light of the adoption of the universal declaration of human rights (UDHR) by the General Assembly in 1948,36 it must be acknowledged that the right to work was codified in a broad range of legal frameworks at the regional and international levels of operations.
In other words, there are also several other provisions in within international law which have a specific relevance to the actualization of the right to work in all the several conventions within the International Labour Organization, particularly, on the rules bothering on migration for Employment (No.
97), United Nations Refugee Convention as well as the Migrant Workers Convention amongst many others.37 More so, it is instructive to note that all efforts made to gain an accurate insight 36 Chilokwu, I.D.O, Olise, M.C., Ewuim., N.C, ‘Protecting Human Rights of Nigerian Migrants: The Case of Migrants’ Remittances Enterprose For Sustainable Development in Nigeria’, (2011) 1(1) Kuwait Chapter of Arabian Journal of Bussiness and Managemnet Review, P. 41 37 Fudge, J, ‘The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights For Migrant Workers’ (2011) 34 Comparative Labor Law and Policy Journal, 95-132. https://www.wiego.org/publications/precariousmigrant-status-and-precarious-employmentparadox-international-rights-migran P. 35 https://www.wiego.org/publications/precarious-migrant-status-and-precarious-employment-paradox-international-rights-migran%20P.%2035 https://www.wiego.org/publications/precarious-migrant-status-and-precarious-employment-paradox-international-rights-migran%20P.%2035 https://www.wiego.org/publications/precarious-migrant-status-and-precarious-employment-paradox-international-rights-migran%20P.%2035 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 10 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... into the concept the “Right to work” has of course, led to the conception that the “Right to work” is the concept that gave the impression that people have a human right to work, or engage in a productive employment, and may not be prevented from doing so.
In all contexts, it is a fact worthy of note that the right to work is incorporated in the Universal Declaration of Human Rights,38 and further was recognized in several international human rights laws through its inclusion in the International covenant on Economic, Social and cultural Rights,39 where the right to work is expressly provided with emphasis on economic, social, and cultural development.
While this may be desirable in a more peaceful context, Article 23 of the Universal Declaration of Human Rights provides as follows: “That everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
More so, everyone without any discrimination, has the right to equal work and equal salary as well as the right to just and favorable remuneration that will guarantee him and members of his households an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
And also, everyone has the right to form and or to join trade unions for the protection of his interests.” Another important development in terms of understanding the right to work is thus provided under part III, Article 6 of the International Covenant on Economic, Social and Cultural Rights,40 provides that: 38 Article 23 of the Universal Declaration of Human Rights (1948) 39 Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (1966) “The signatories to the present covenant recognize the right to work, which comprises the right of everyone to the opportunity to earn his or her livelihood by choosing any kind of work he freely desire or accepts, and will ensure that he safeguards this special right.
More so, various steps are to be taken by States who are signatories to the present covenant which is gears towards achieving a full realization of these rights which shall consists of technical and vocational guidance as well as training programs, policies, and techniques that will achieve steady economic, social and cultural development, full and productive employment under the condition of safeguarding fundamental, political and economic freedoms respectively.” Given the above scenario, and recognizing that the state has the primary duty of guaranteeing maximum compliance with international standards, it is important to understand that the full enjoyment by all and sundry of the principle of equality and nondiscrimination wherein the right to work is promoted, respected and protected at all material times.
Thus, Article 5 (e) (i) of the International Convention on the Elimination of All Forms of Racial Discrimination, however, provide as follows: 41 “That the rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal payment, to equal work, and to just and favorable remuneration are all integral part of the above Article.” 40 Article 23 of the Universal Declaration OF Human Rights (1948) 41 Article 5 (e)(i) of the international Convention on the Elimination of All Forms of Racial Discrimination (1965) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... | 11 On the other hand, drawing from the foundations laid in Article 5 of the convention which incorporates the obligation of states parties to prohibit and eliminates all racial discriminations in the enjoyment of civil, political, economic, sociocultural rights.
It is argued here that some of these rights such as the right to participate in the electioneering campaign are only confined to citizens.
In this regard, it is submitted that states parties are strictly under obligation to guarantee equality of these rights to the extent recognizable under international laws.
Also, it can thus be argued that under Article 1, paragraph 1 of the convention,42 the differential treatment based on citizenship or immigration status will of course constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.
In this sense, it can be most readily understood that differentiation within the scope of article 1, paragraph 4, of the convention relating to special measures is not considered discriminatory.
In view of this broad understanding of the scope of application of the principles of non-discrimination with respect to the right to work, and despite the fact that Article 7 of the International Convention on the Protection of the Rights of All Migrant workers and members of their households,43 clearly stated it in its provisions that one should not overemphasized the importance of the fact that Articles 7 and 8 of the said convention expressly provided it, To be fair, one should recognize that even at the regional 42 Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) level, the right to work is expressly recognized and provided for.
Thus, Article 15 of the African Charter on Human and Peoples Rights provides that: 44 “Everyone shall have the right to work under equitable, satisfactory and reasonable conditions, and shall receive a corresponding salary with the work done.” Despite the relatively express language used in the text of the international and regional instruments bothering on promoting the right to work through migration, it still remains questionable on whether the issue of documented, as well as undocumented migrants has been addressed in the light of the numerous challenges faced by migrant workers.
Relevance of International Convention on the Rights of All Migrant Workers and Members of Their Families to the Nigerian Municipal Labour Laws and Policies It must be emphasized that Nigeria is a signatory to this International Convention on the Protection of the Rights of Migrants Workers and Members of Their Families which came into existence in 1990.
Aside from this International Convention, there are other National legislations and National Policy on Labour Migration which also compliment the provisions of the International Convention to a large degree at the municipal levels.
Furthermore, it is significant to note that in the light of the provisions of Article 25 of the International Convention on the Right of All Migrant Workers and Members of Their Families bothering on the treatment, conditions of 43 Article 7 of the international convention on the protection of the Rights of All Migrant and members of their families (1990) 44 Article 15 of the African Charter on Human and Peoples Rights (1979) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 12 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... work and terms of employment not less than those applicable to nationals, it must be stressed that Section 17(3)45 utilizes nonrestrictive language in directing State Policy towards just and human conditions of work, towards safeguarding health, safety and welfare as well as towards equal pay for equal work for "all person's in employment".
In a similar vein, Part 3(4) of the Labour Migration Policy (Enforcement of Labour Standards and Contracts) further demonstrates intent by government and other stakeholders to promote and enforce nondiscrimination in conditions of work and in work place standards through application of Labour inspection activity and law enforcement to "all employment activities involving migrant’s workers".
However, it must be noted that this is a major step to explicitly extend these protections to Migrant/ foreign workers in Nigeria.
That being said, the relevance of International Convention on Right of All Migrant Workers and Members of Their Families to Migrant Workers in Nigeria as well as to Labour Law cannot be overemphasized.
Interestingly, Nigeria has no social security system.
But however, the Pension Reform Act of 201446 requires employers to contribute to employees’ pension remittances and uniquely requires employers to maintain group life insurance for all employees of a value that is at least three times the value of each employee's total annual emoluments.
Also, due to the limited scope of application of the Labour Act, non-worker employment falls outside the scope of Act and is governed by the employment contract and common law principles.
In this sense, it should be noted that the primary legislation that regulates the 45 of the Constitution of the Federal Republic of Nigeria 1999 46 (See Pension Reform Act 2014) employment of persons in Nigeria is the Labour Act.
Others are the Constitution of the Federal Republic of Nigeria 1999(promulgation) Act Chapter C23, Laws of the Federation of Nigeria, 2004 (as amended) and the National Industrial Court of Nigeria Act 200647 which prescribes the jurisdiction of the National Industrial Court of Nigeria and numerous others mention.
In this respect, it should be noted that other than Labour Act, no specific law sets out what factors would be considered in ascertaining whether an individual is an employee or an independent contractor.48 IV.
CONCLUSION This paper concludes by stating that reexamination of all the existing legislations on migration will further strengthen the protective Rights of all migrant's workers and members of their families as well as globally promote migrant's Rights to work beyond the shores of their Countries of origin.
Moreover, it must be emphasized that while the prohibition of offences against Migrants and members of their families remained sacrosanct under human rights law, it must be acknowledged that the prohibition of discrimination on the right to work against migrants cannot be overemphasized given their vulnerability.
In addition, in spite of the statutory provisions, there is an urgent need to strengthen the implementation of the municipal and International laws prohibiting discrimination against Migrant workers and members of their families as well as the prosecution of the offenders of migrant's Rights violation both at the municipal and International levels of operations.
More 47 See National Industrial Court of Nigeria Act 2006) 48 See SS.
Co. LTD v. Afropak Nigeria Ltd (2008)18NWLR 77at P.82.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... | 13 importantly, what proceeds from the foregoing, therefore, is that expanding the frontiers of the right to work through migration encourages best practices.
In this sense, the fact remains that all the existing legal frameworks at the municipal and International levels on migration need to be overhauled.
Conclusively, it should be noted that the questions and challenges that the right to work through migration have risen are not merely rhetorical.
One must therefore acknowledge that within the context of the International Labour Organization (ILO), in particular, clear standards exist for the protection of migrant’s workers and members of their families.
Thus, the respect for the right to work and proper protection of these human rights are essential for sustainable right to work through migration.
More so, this paper submitted that access to work should be without discrimination on any of the internationally recognized grounds.
Ultimately, this paper concludes that promoting the right to work through migration essentially can be achieved through human rights approach which should include the principles of non-discrimination and equality.
REFERENCES Books IOM, International Dialogue on Migration, Migrants and The Host Society: Partnership for Success, No 11, (IOM and Australian Government, 2008) International Organization for migration, Glossary on Migration, 2nd ed, in International Migration Law, No.
25, (Geneva, International Organization for Migration, 2011) IOM, International Migration Law: Glossary on Migration, (Geneva, IOM, 2019) OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, (OHCHR, Geneva, 2014) Swiss Agency for Development and Cooperation SDC, Migration and the 2030 Agenda for Sustainable Development, 2018.
Journals and Reports Boucher, A., ‘Measuring Migrant Worker Rights Violations in Practice: The Example of Temporary Skilled Visas in Australia’ (2019) 61(2), Journal of Industrial Relations, p. 278 Chilokwu, I.D.O, Olise, M.C., Ewuim., N.C, ‘Protecting Human Rights of Nigerian Migrants: The Case of Migrants’ Remittances Enterprose For Sustainable Development in Nigeria’, (2011) 1(1) Kuwait Chapter of Arabian Journal of Bussiness and Managemnet Review, p. 41 Fudge, J, ‘The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights For Migrant Workers’ (2011) 34 Comparative Labor Law and Policy Journal, 95132. https://www.wiego.org/publications/pr ecarious-migrant-status-andprecarious-employment-paradoxinternational-rights-migran Jubilut, Liliana Lyra, and Rachel de Oliveira Lopes, ‘Stategies for the Protection of Migrants through International Law’, (2017) 5(1), Groningen Journal of International Law, 34-56 Kysel, Ian M., ‘Promoting the Recognition and Protection of The Rights of All Migrants Using a Soft-Law Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 14 | Nnawulezi, Adeuti Expanding the Frontiers of the Right to Work through Migration... International Migrants Bill of Rights’, (2016), Vol.
4, No.
2, Journal on Migration and Human Security, 29-44 Ruhs, Martin, ‘Rethingking International Standards for the Protection Migrants Workers: The Case for a ‘Core Rights Approach’’ (2017) 111 American Journal of International Law, p.173 Thomas, Chantal, ‘Convergences and Divergences in International Legal Norm on Migrant Labour’, (2011) 32, Comparative Lobour &Policy Journal, 405, P. 415-418 William Gois and Karen Campbell, ‘Stranded Migrants: A Call to Rethink The Current Labour Migration Paradigm’, (2013) 2(2), Migration and Development, 157-172, p.170 Regulations International Federation of Red Cross and Red Crescent Societies, Policy on Migration, (2009) International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) The Universal Declaration of Human Rights (1948) International Covenant on Economic, Social and Cultural Rights (1966) International Covenant on Civil and Political Rights (1966) United Nations Demographic and Social Statistics, Population Division, New York (2017) International Covenant on the Elimination of All Forms of Racial Discrimination (1965) International Covenant on the Elimination of All Forms Discrimination against Women.
World summit on Social Development, Copenhagen, (1995) International Conference on Population and Development, Cairo (1994) Internets Merriam-webster dictionary online, https://www.merriamwebster.com/dictionary/migration
DOI: http://doi.org/10.21776/ub.blj.2021.008.01.06 | 91 Conditional Decisions as Instrument Guarding the Supremacy of the Constitution (Analysis of Conditional Decisions of Indonesian Constitutional Court in 2003 – 2017) Muchamad Ali Safa’ata and Aan Eko Widiartob a Faculty of Law, Universitas Brawijaya, Indonesia.
Email: safaat@ub.ac.id b Faculty of Law, Universitas Brawijaya, Indonesia.
Email: aan.eko@ub.ac.id Submitted : 2020-04-30 | Accepted : 2021-04-29 Abstract: The function of the Indonesian Constitutional Court as the guardian of the constitution is mainly conducted through the judicial review authority.
From 2003 to April 2021, the Constitutional Court has received and decided 1392 petitions over judicial review.
In its dictums, the Constitutional Court often declares conditionally constitutional or conditionally unconstitutional (conditional decision).
The conditional decision is a decision of the Court that declares the reviewed norm conditionally constitutional or unconstitutional.
The norm is constitutional if interpreted according to the Court interpretation, or the norm is unconstitutional if interpreted in specific ways.
This research investigates the criteria of judicial review decisions that declare conditionally constitutional and conditionally unconstitutional according to the characteristics of norms of the law reviewed.
The analysis was limited to the Court decisions from 2003 to 2017.
The research result indicates that distinguishing characteristics of norms reviewed have no correlation with conditionally constitutional or conditionally unconstitutional options.
Conditionally Constitutional Decision was used by the Court before replaced by Conditionally Unconstitutional Decision due to the weakness of decision implementation.
For conditionally unconstitutional decisions are connected to the substance of the decision, creating a new norm that replaces, limit, or elaborate reviewed norm.
The conditional decision is still required due to the following three aspects: enforcement of the supremacy of the constitution, the presumption of validity, and strengthening the execution of Constitutional Court decisions.
Keywords: constitutional court; conditionally constitutional; conditionally unconstitutional; supremacy of the constitution; additive decision; interpretative decision.
I.
INTRODUCTION Since Law Number 24 of 2003 on the Indonesian Constitutional Court (CC Law) was passed on the 13th of August 2003, Indonesia was the first country in the 21st century to establish a special judiciary to handle constitutional disputes and the 78th to establish Constitutional Court (CC).
Establishing CC complies with the provision in Article 24C of the 1945 Indonesian http://doi.org/10.21776/ub.blj.2021.008.01.06 mailto:safaat@ub.ac.id mailto:aan.eko@ub.ac.id Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 92 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution Constitution (the Constitution) that gives four authorities and one obligation to CC,1 i.e., as the first and final court, and the decision is final and binding on reviewing laws about the Constitution; interbranch disputes of state institutions; political party dissolution; disputes in general election result; and House of Representatives allegation of the violation of law committed by the President and/or Vice-President in the impeachment process.
Out of four authorities and an obligation, judicial review is the most common case and has continually been accepted and adjudicated by the CC.
To April 2021, CC has received and judged 1392 petitions concerning Judicial Review.2 As a result, the function of CC as guardian of the supremacy of the constitution and as a final interpreter is conducted mainly through the judicial review case.
Article 56 of CC Law has set three dictums concerning the judicial review case, where the petition cannot be accepted, the petition is granted, or the petition is rejected.
To date, there have been 269 decisions that grant, 498 that reject, and 455 decisions that declare ‘unacceptable’.
3 However, in the decisions with the dictums granting and rejecting, there are decisions stating a provision of law reviewed for conditionally constitutional or conditionally unconstitutional.4 This research will analyze conditional decisions from 2003 to 2017 because, since 2017, CC has only used conditionally unconstitutional decisions.
1 See also: Luthfi Widagdo Eddyono, ‘The Constitutional Court and Consolidation of Democracy in Indonesia’, (2018) 15(1) Jurnal Konstitusi, p.5; Simon Butt, ‘The Indonesia Constitution Court: Reconfigurating Decentralization for Better or Worse?’ (2019) 14, Asian Journal of Comparative Law, p.151-152 The CC first passed a decision over the judicial review with the statement of conditionally constitutional in Decision Number 058-059-060-063/PUU-II/2004 concerning judicial review of Law Number 7 of 2004 on Water Resource (Water Resources Law).
In comparison, the decision with a conditionally unconstitutional dictum was first passed in Decision Number 026/PUU-III/2005 concerning judicial review Law Number 13 of 2005 on State's Budget (State Budget Law).
The emergence of the new dictums is understood as a shift of the CC from the hostile legislator to the positive legislator.
The negative legislator is an organ that creates norms through the authority to review and annul certain laws.
Otherwise, a Positive legislator is an organ that creates norms through the authority to make a new law or replace the old law.
Through the conditional decisions, the CC formulates the requirements for the law review's constitutionality to formulate a new norm.
The CC could annule specific laws and create and add certain norms in the reviewed law.
A legislator once responded to the conditional decision on Law Number 8 of 2011 on Amendment to the CC Law, where Article 57 Paragraph (2a) prohibits the CC from including the dictums other than (a) dictum to reject, to grant, or to declare 'in admissible'; (2) order addressed to the legislator; and (3) formulation of a norm replacing the norm of law deemed irrelevant to the 1945 Constitution.
With Decision Number 48/PUU-IX/2011, the CC states that 2 Page source of Indonesian CC.
http://www.mahkamahkonstitusi.go.id/index.php?
page=web.RekapPUU&menu=5, retrieved on the 3rd of May 2018.
3 Ibid.
4 Bisariyadi, ‘Legal Transplant and The Model of Constitutional Court Decision’, (2018), 5 (1) PJIH, p.11-12 http://www.mahkamahkonstitusi.go.id/index.php?page=web.RekapPUU&menu=5 http://www.mahkamahkonstitusi.go.id/index.php?page=web.RekapPUU&menu=5 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 93 Article 57 Paragraph (2a) contravenes the 1945 Constitution, and it is not legally binding.5 The CC argues that the prohibition contradicts the objective of the CC's establishment to enforce law and justice.
This prohibition will hamper the CC from reviewing the constitutionality of norms, filling legal loophole caused by the CC's decision, and performing judge's responsibilities to follow and understand legal values and justice existing in the society.6 Research related with conditional decision was once conducted by Syukri Asy’ari, Meyrinda Rahmawaty Hilipito, and Mohammad Mahrus Ali.
Their research concludes that conditionally constitutional decisions are likely to maintain the constitutionality of the law reviewed under the requirements set by the CC.7 In another study, Faiz Rahman and Dian Agung Wicaksono elaborate the existence and characteristics of conditional decisions.
The existence of conditionally constitutional decisions is to give particular interpretation and it is stipulated in the decisions with the dictum that rejects the petition.
However, conditionally unconstitutional decision is also aimed to provide interpretation but it is written in the decisions with the dictum that grants the petition.8 Brewer-Carias confirm that the emergence of conditional decisions (called as interpretative decision and additive decision) delivered in European countries and Latin America are linked with legal norms 5 See also: Pramudya A. Oktavinanda, ‘Is The Conditionally Constitutional Doctrine Constitutional?’, (2018) 8(1), Indonesia Law Review, p. 21 6 Paragraph [3.13] Decision Number 48/PUUIX/2011.
7 Syukri Asy’ari, Meyrinda Rahmawaty Hilipito, and Mohammad Mahrus Ali, Model dan Implementasi Putusan Mahkamah Konstitusi Dalam Pengujian Undang-Undang (Studi Putusan reviewed.
Interpretative decision starts to exist when law is multi-interpreted and constitutional court tends to hold on to the constitutionality of the reviewed law.
Additive decision emerges when there is legal loophole, for the legislator does not make the law required (legislative omission).9 The absence of norm that should exist in line with the constitution is deemed omission by the legislator.
This indifference is divided into two: absolute omission and relative omission.
The former takes place when there is no legislative product needed to reach an objective or to perform constitutional provisions, thus it is against the constitution.
The latter is known as the “silences of the legislator”.
Relative omission happens when a required legislative product is made but not completely, or it is even disadvantageous based on constitutional perspective; the relative omission is known as “the silences of the statues”.10 Responding to several issues detailed above, this research is aimed to describe and analyse three issues; first, the development of conditional decision; second, the background of conditional decision; third, to analyse whether conditionally constitutional and conditionally unconstitutional decision is correlated to the characteristics of norms of the law reviewed; and fourth to determine whether conditional decision should be maintained in order to perform the CC’s function.
Tahun 2003 – 2012), (Pusat Penelitian Mahkamah Konstitusi, 2013) 8-10.
8 Faiz Rahman and Dian Agung Wicaksono, ‘Eksistensi dan Karakteristik Putusan Bersyarat Mahkamah Konstitusi’, (2016) Jurnal Konstitusi, 13(2), 348, 376 – 377.
9 Allan R. Brewer-Carias, Constitutional Courts as Positive Legislators: A Comparative Law Study, (Cambridge University Press, 2011) 73 – 124.
10 Ibid, 125 – 126.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 94 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution II.
MATERIAL AND METHODS In reference to the issues studied, this research is categorised as doctrinal legal research,11 conceptualising law as inconcreto judge decision.
The research data involves primary and secondary data.
The former decision consists of the CC’s decisions on judicial review from 2003 to 2017 with the conditionally constitutional and conditionally unconstitutional dictums or in legal consideration.
There had been 116 conditional decisions from 2003 – 2017.
With every conditional decision, the characters of norms of the law reviewed and the argumentation of the decisions serving as the basis of the conditionally constitutional decisions and conditionally unconstitutional decisions will be identified.
The identification result will be classified according to the characters of norms of the law reviewed, followed by the analysis of the result to determine the correlation pattern and argumentation that serve as the basis.
Based on the classification and analysis, the construction of criteria of the conditional decisions will be formulated.
III.
RESULT AND DISCUSSION Roles of Courts and Judicial Review The authority of the CC to review the law to the Constitution is principally restricted to review the legal norm in certain law in comparison to the legal norm in the Constitution.
Legal norm is a standard of conduct that is authoritative due to its form, substance, and also the existence of the authority that enforces it.
Legal norm, on one hand, becomes the guidelines of conduct for 11 Soetandyo Wignjosoebroto, Hukum: Paradigma, Metode dan Dinamika Masalahnya, (Huma, 2002) 145 – 177.
12 Satjipto Rahardjo, Ilmu Hukum, (Citra Aditya Bakti, 2006) 27. individuals in the society.
On the other hand, legal norm serves as an instrument to direct, teach, and organise behaviour of individuals to interact in the society.
12 Legal norm is specific and different from other social norms.
Law is a socially organised instrument that consists of orders and prohibitions, or authorities to guarantee its enforcement supported by sanctions.13 Law has to be formulated according to particular techniques and requirements so that they have certain meaning, are general and applicable at all time.
14 However, recalling that legal norm is generally applicable and binding to all, the formulation must not be restricted to a certain object or phenomenon, and an act is formulated in the form of abstract concept.
The concept is constructed by predicting the form and kind of conducts that are regulated, but the prediction and formulation are not always appropriate; the formulation can be too wide, where the substance could cover all conducts that are not supposed to be in the regulation, or it may be too narrow, where certain conducts are not included in the concept formulated either wholly (loophole) or partly, or it may result in vague meaning.
Therefore, every legal norm has open texture that gives room for judges to sharpen, to find, or even to create new legal norm.15 In the early time, courts were needed to settle disputes.
However, their roles have extended, including their role in supervising the state.
This role has become the consequence of case development in courts between individual and state organs or government.
13 Hans Kelsen, Pure Theory of Law, translation from the second (revised and enlarged), University of California Press, 1976) 75 – 81.
14 H. L. A. Hart, The Concept of Law, (Oxford University Press, 1979) 29.
15 Ibid, 125.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 95 The theoretical perspective suggests that courts’ roles come up when the size and complexity of the population have triggered a gap between kinship and brotherhood.
The courts were initially meant to settle disputes and bring harmony into social relations; they also had the responsibility to settle disputes among individuals over properties and ownership and whether an act is considered an offense according to law, tradition, and social norms.
The social task of the court is to deliver decisions accordingly without leaving both winning and losing parties with a sense of injustice.16 The role in settling disputes between parties has extended the function of the court to make public policy.
When delivering a decision for a case between two parties, the court is likely to prioritize a value over another value.
A rule will never be neutral, but it always has a tendency to support a particular interest, right, value, or a certain group over another.
Therefore, a dispute between two individuals can grow into a dispute between two groups or even between social and economic classes.
Court decisions over conflict will further affect public policy and economic development.17 In terms of a case involving an individual or a particular party and the government, the court can be authorized to supervise and assess the government's performance.
This mechanism is called a judicial review that involves three elements: 1.
The judge's assessment is addressed to the government's act, where this assessment is intended to determine whether the act is based on a legal framework or exceeds the authority given by the law.
16 Walter F. Murphy, C. Herman Pritchett, Lee Epstein, and Jack Knight, Court, Judges, & Politics, An Introduction to The Judicial Process, (Mc Graw Hill, 2006) 38 – 39.
2.
In federal states like Australia, Germany, India, and United States, judicial review can be performed through supervision and judge's assessment concerning power distribution between state and federal government.
3.
Judicial review can be understood as the court's authority to cancel or reject to enforce a regulation or an executive order since it violates the constitution.18 Murphy, Pritchett, Epstein, and Knight argue that in adjudicating process, a judge will surely start from legal text that is believed to be made by legislative body with the formulation whose meaning can be clearly understood.
However, in further stage, several complexities may arise.
First, legislators sometimes fail to express intended meaning in clear forms of language; it is more obvious when it comes to esoteric terms that have specific meaning in certain field.
Second, although law is formulated in a language that is supposed to be generally understood, still it sparks ambiguity.
Third, the complexities exist when the ambiguity actually starts from the legislator per se, especially when parties concerned fail to come to an agreement of the law made, ending up with picking inappropriate tones of language that trigger ambiguity.19 Kelsen states that there should not be any legal loophole in a legal system because every legal system must hold general norms applied.
Moreover, judges are also authorised to form norms that are individual.20 Judicial decision can also create general norms, binding not only for the case already receiving decision, but also for cases to come.
Court decisions serve as precedent 17 Ibid, 45 – 46.
18 Ibid.
19 Ibid, 491 – 492.
20 Kelsen, above n 10, 245 – 247.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 96 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution creating new norm, in which the court functions as a legislative body.21 Judicial review, according to Kelsen, exists as hierarchical consequence of norm validity leading to basic norms.
Constitutional enforcement can only be effectively guaranteed when there is a body other than legislative body that is given an authority to review whether the legislative product is constitutional or not and to declare that the product is not binding since it may violate the constitution.
This body can be formed as an independent judicative body called Constitutional Court.
In terms of the role of courts to form norms, early doctrine referred to was judicial restraint suggesting that court and its judges must have their limit.
In constitutional court, judges must deliver decisions according to current law and avoid using their functional legitimacy.22 Judicial activism is a conduct performed by court or judge exceeding his/her authority and the decision made has a tendency to form a law, not to interpret it.23 There is always a room for mistakes where a court may fail to enforce law based on its meaning clearly given in written rule (negative judicial activism) or a court may pass decision by formulating new law not mentioned in written law existing early (positive judicial activism).
This decision has three drawbacks.
First, it is not democratic since a judge is not an elected official.
Secondly, it is not efficient since a court never has sufficient knowledge concerning how to make a good law.
Thirdly, it violates 21 Ibid, 250 – 256.
22 John Daley, ‘Defining Judicial Restraint’, in Tom Campbell and Jeffrey Goldsworthy (eds.
), Judicial Power, Democracy and Legal Positivism, (Ashgate Dartmouth, 2000) 279 – 284.
23 Leslie Zines, ‘Judicial Activism and the Rule of Law in Australia’, Ibid, 391.
24 Arthur Glass, ‘The Vice of Judicial Activism’, in Ibid, 355. state administration since such decision is deemed arbitrariness in a legal system.24 The courts’ roles cannot be completely omitted from modern legal system.
Rules have to be made as clearly and generally as possible to be in line with the society that keeps developing.
However, rules are not always made appropriately, where there is internal inconsistence and they are inapplicable under certain circumstances.25 Oliver Wendell Holmes, as cited by Wolfe, argues that a judge must be active and must act with his/her legislative character.
Holmes suggests that certainty is an illusion.
A state is an organism that grows and changes, not being able to be fully reached by constitution makers.
He described that the formulation used by the constitution makers is like an embryo in the organism of state requiring oxygen transfer to allow it to be applicable within society that keeps growing and reaches maturity.
As a consequence, in constitutional case, not only what is expressed in the constitution that has existed since a long time ago, but experiences of the state also have to be taken into account.26 John Chipman Gray asserts that judges make law similar to how legislators do.
Interestingly, the law made by judges is often sharper and authoritative since it is constructed in a court that determines more certain meaning of law compared to the original texts made by legislators.27 To judge constitutional case, judges can encounter two public interests that are not relevant one another.
To deliver a 25 Ibid, at 357 – 359.
26 Christopher Wolfe, The Rise of Modern Judicial Review, From Constitutional Interpretation to Judge-Made Law, (Basic Books, Inc, 1986) 225.
27 Edgar Bodenheimer, Jurisprudence, the Philosophy and Method of the Law,(Cambridge University Press, 1996) 439.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 97 decision over such a case, a court has to take into account the whole social system formed by social values and thoughts of justice in the society in order to find the right answer.
Judges have to fairly consider arguments of parties concerned.
With this, judges will figure out the law with more conceiving argumentation.28 Development of Conditional Decisions The idea of conditionally constitutional decision appeared when the CC faced difficulties in reviewing the Law Number 7 of 2004 concerning Water Resource since the law formulated generally.
The law may be interpreted and implemented both consistent or inconsistent to the constitution.
29 Following this, the CC started to make a breakthrough by proposing requirements in order that the provisions proposed to be relevant to the constitution.
Another example of conditionally constitutional decisions is Decision Number 10/PUU-VI/2008 dated on 1st of July 2008 concerning judicial review of Law Number 10 of 2008 on General Election concerning the absence of domicile requirement for candidate of Regional Representative Council member.
The conclusion of the decision states: “Article 12 and Article 67 of Law No.
10/2008 are “conditionally constitutional.
Therefore, a quo Articles must be read/interpreted as long as include domicile requirements in the province represented by the candidates of the members of Regional Representative Council;”30 In addition to conditionally constitutional decisions, there also conditionally unconstitutional decisions.
28 Ibid, 441.
29 Harjono, Konstitusi Sebagai Rumah Bangsa: Pemikiran Hukum Dr. Harjono, S.H., M.C.L Wakil Ketua MK, (Mahkamah Konstitusi, 2008) 178 – 179.
This decision based on arguments that if the CC should choose one of the three dictums mentioned by Article 56 of the CC Law, it will be difficult to review the law that is generally formulated, while the general formulation does not give clear idea whether its implementation will contravene the Constitution or not.
The example of conditionally unconstitutional decisions is the Decision Number 101/PUU-VII/2009 concerning review of Law Number 18 of 2003 concerning Advocates.
This case is about the single bar association membership requirement to be sworn in as advocate.
Due to the dispute over single bar association, high court rejected to take the advocate’s oath based on Article 4 paragraph 1 of Law Number 18 of 2003.
The CC decided that Article 4 paragraph (1) of Law Number 18 of 2003 concerning Advocates is contravene to the 1945 Constitution as long as the requirement is not fulfilled that the phrase “in public hearing of high court within its jurisdiction” is not defined as “high court following the order of the law must place advocates under oath at least within two years since this dictum is declared before they perform their profession apart from their membership in an organisation of advocates that in fact exists”.
Conditionally unconstitutional decisions are in reverse to the conditionally constitutional ones, meaning that the Article petitioned is declared conditionally contravening the Constitution.
The reviewed Article is unconstitutional if the requirements set by the CC are not fulfilled.
The existence of conditionally unconstitutional decisions is inextricable from ineffective model of 30 Mahkamah Konstitusi Republik Indonesia, Pengujian UU Nomor 10 Tahun 2008 tentang Pemilihan Umum Anggota DPR, DPD, dan DPRD terhadap UUD Negara R.I. Tahun 1945, Nomor 10/PUU-VI/2008 tanggal 1 Juli 2008, p. 215.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 98 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution conditionally constitutional decisions because the addresat of the decision often overlooks legal consideration.
The addresat of the decision sees there is no need to act any further for follow-up and to give implementation since the dictum is rejected.31 Conditionally constitutional and conditionally unconstitutional decisions are the models not intended to revoke or to declare that norms are not binding as legal norm, but they have interpretation (interpretative decision) toward substantive materials of paragraphs, articles and/or part of the law reviewed.32 Conditional decision was first delivered in legal consideration part of the decision 2005 on the Decision Number 058059-060-063/PUU-II/2004 and Decision Number 008/PUU-III/2005.
33 This decision was delivered based on the assessment that the norm in the Law concerning Water Resource was deemed incomplete in terms of averment concerning the government responsibility related with the right of each individual to obtain water for minimum primary need on daily basis.
Such regulation is to be formulated in operational regulation that will be made.
Therefore, the arrangement of the operational regulation of Law concerning Water Resource must refer to the CC Decision.
When it fails to comply with the CC Decision, re-judicial review for the Law concerning Water Resource can be proposed to the CC.34 The existence of conditional decision is based on an assessment that, on the one hand, the existing norm in the Law is consistent 31 Asy’ari, Hilipito, and Ali, above n 4, 9.
32 Ibid.
33 The CC’s Decision Number 058-059-060063/PUU-II/2004 and Number 008/PUU-III/2005, 430 – 431.
34 Law concerning Water Resource was petitioned for judicial review to Constitutional Court through with the Constitution, but, on the other hand, the Law does not fully regulate the rights to water following the Constitution.
The CC does not revoke the existing norm, but it declares that the norm is incomplete, and it suggests that it should contain specific provisions to be relevant to the Constitution.
The norm in the Law is not revoked since it does not directly contravene the Constitution and must implement the Constitution.
The CC states that the dictums are restricted by the provisions of Article 56 of the CC Law, where they are restricted only to rejecting, granting, or in admissible.
Incomplete and multi-interpreted norms should be dealt with by the amendment of Law.
To encourage and identify the need for legislative review, the CC states the provisions of the Law that are reviewed as conditionally constitutional in legal consideration.
This regulation is stated in legal consideration of Decision Number 1417/PUU-V/2007.35 Before the existence of conditionally constitutional concept in Decision Number 058-059-060-063/PUU-II/2004 and Number 008/PUU-III/2005, there were at least two decisions that could be declared as conditional decisions: first is the Decision Number 018-PUU-I-2003 concerning review of Law Number 45 of 1999 concerning the establishment of the Province of Central Irian Jaya, Province of West Irian Jaya, Paniai Regency, Mimika Regency, Puncak Jaya Regency, and Sorong city following the effectuation of Law Number 21 of 2001 concerning Special Autonomy for Papua.
In this case, the CC found the issue in which the a case Number 85/PUU-X/2013 and it was entirely declared irrelevant to the 1945 Indonesian Constitution because six Government Regulations made were deemed to be irrelevant to the previous Constitutional Court Decision 35 The CC’s Decision Number 14-17/PUU-V/2007, paragraph 3.14.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 99 Law Number 45 of 1999 was constitutional but only until the effectuation of Law Number 21 of 2001, while Law Number 45 of 1999 was effectively implemented with the establishment of the Province of West Papua, and some provisions in the Law were not implemented regarding the establishment of Central Papua.
Regarding this case, the CC chose the dictum not related to substantive materials of the Law, but it is related with the effectuation that contravenes the Constitution following the effectuation of Law Number 21 of 2001.
The second is Decision Number 002/PUU-II/2004 examining the use of the term ‘population’ in Article 1 point 7 and 8 of Law Number 12 of 2003 concerning General Election which is defined as “citizens of the Republic of Indonesia whose domicile is in the area of the Republic of Indonesia or in other countries”.
However, Article 26 Paragraph (2) Constitution has stated “the populations are Indonesian citizens and foreigners living in Indonesia.” The CC cannot state that the term ‘population’ contravenes the Constitution since the content of the Article mentions Indonesian citizens living in Indonesia that have suffrage despite the fact where the definition of ‘population’ in Law concerning General Election is different from that in the Constitution.
The CC re-affirms in the consideration of the decision that ‘population’ must be defined as operational part of the Law concerning General Election.
In addition, Constitutional Court requires that formulation of the Law take into account the definition given in the Constitution.36 Furthermore, through the Decision Number 29/PUU-V/2007 reviewing Law concerning Cinematography, conditionally constitutional clause is given in ‘conclusion’.
36 The CC’s Decision Number 02/PUU-II/2004, 24.
This indicates that the mandate in the decision must be considered by the legislator.
The CC sees the Law Number 8 of 1992 concerning Cinematography contravenes the Constitution since it is not in line with the new spirit intended to respect democracy and Human Rights.
However, if this law is revoked, it will leave legal loophole or it will even deactivate film censorship that is still needed to implement the Constitution.
The CC states that Law concerning Cinematography, especially the film censorship, still applies as long as the implementation is in line with the new spirit that respects democracy and Human Rights.
The CC also mandates the establishment of a new agency through a new law.
Conditionally constitutional Decision put in dictum part that grants was first given in Decision Number 10/PUU-VI/2008 reviewing the absence of the provision concerning the requirement of domicile for the candidate members of Regional Representative Council (DPD).
The provisions reviewed involve Article 67 letter c of Law Number 10 of 2008 concerning General Election.
The review is not for the formulation of the existing norm, but it is based on the situation where certain norm is not given, such as requirement of domicile in the province where the candidates of the DPD will be elected.
As a consequence, the CC cannot revoke Article 67 letter c of Law concerning General Election, but the CC reviews whether the requirement of domicile should constitutionally exist.
The CC states that this court can state that an article, paragraph, and/or part of the law not implicitly containing the constitutional norm are attached to the certain article of the Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 100 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution constitution as conditionally constitutional or conditionally unconstitutional.37 The CC considers the decision it will make.
First, petition can be declared unacceptable because the petition is unclear, recalling that it reviews the absence of norm.
Second, the CC declares something as conditionally constitutional in legal consideration and it gives implication to the dictum that rejects.
However, it will not affect the effectuation of Article 12 and Article 67 of Law Number 10 of 2008, unless the formulation of Law and General Election Commission give follow-up with the new regulation.
Third, the CC declares something as conditionally unconstitutional so that the dictum grants the petition.
As a consequence, all the provisions in Article 12 and Article 67 is not legally binding, including other requirements.38 The CC combines the second and the third.
It declares conditionally constitutional but the CC puts it in the dictum.
With this, it is expected that the decision by the CC, on one hand, will not revoke all articles reviewed, which they, in fact, are constitutional.
On the other hand, this decision adds new norm, giving a strong legal force to execute because the statement is included in the dictum, not only in the legal consideration.
Following the Decision Number 10/PUU-VI/2008, all conditionally constitutional decisions are included in the dictum that grants.
This sparks an issue over the relevance between what the dictum says and the content of the dictum.
The dictum that ‘grants’ should be for the issue where the provision reviewed is declared inconsistent with the Constitution, but in conditionally 37 The CC’s Decision Number 10/PUU-VI/2008, paragraph 3.25.
38 Ibid, paragraph 3.26.
39 As in dictum Number 10/PUU-VI/2008.
constitutional decision, it is still declared ‘constitutional’ 39 or ‘conditionally constitutional’40.
The conditionally constitutional decision was used until 2010, with the Decision Number 147/PUU-VII/2009 last delivered on the 30th of March 2010.
Another decision often used is conditionally unconstitutional which was initially included in part of dictum that grants.
The first conditionally unconstitutional was in Decision Number 54/PUU-VI/2008 concerning judicial review of Law Number 39 of 2007 on Customs.
Conditionally unconstitutional clause is stated with the formulation “… inconsistent with the 1945 Indonesian Constitution as long as…” and “… is not legally binding as long as…”.
The change from conditionally constitutional to conditionally unconstitutional is based on the CC assessment that the conditionally constitutional decision is not immediately given follow-up.
When it is declared conditionally unconstitutional and when the requirements set by the CC are not fulfilled, the provision is not legally binding.
In other words, the decisions of the CC have their own mechanism by law, not that they have to be executed based on the formulation of law as in conditionally constitutional decisions.
The following is the legal consideration regarding conditionally unconstitutional decision in Decision Number 54/PUUVI/2008.41 Considering that some conditionally constitutional decisions for the Law are declared contravening the Constitution, and they keep failing to comply with the Constitution, the dictums are not effective.
To enforce 40 As in dictum of the CC’s Decision Number 10/PUU-VI/2008.
41 As in dictum of the CC’s Decision Number 102/PUU-VII/2009.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 101 the Constitution, either by implementers or the legislators, the court, suggesting that the petition proposed by a quo petitioner is acceptable, partly grants the petition by stating that Article that is petitioned for review is conditionally inconsistent with the Constitution.
In other words, the Article is deemed unconstitutional when requirements set by the Constitutional Court are not fulfilled, in which the petitioner from the province where tobacco is produced has right to be given fund for customs of tobacco yield levied by the government.
Therefore, articles proposed for review no longer have any binding legal force when the requirements are not fulfilled during the implementation; There is an issue that was previously declared conditionally constitutional, but when it was re-petitioned, it was declared conditionally unconstitutional.
This case is concerning “never been sentenced due to criminal act” as requirement to become candidate of the members of parliament in the Law concerning General Election.
Decision Number 14-17/PUU-V/2007 has declared conditionally constitutional, and in 2009 the CC declared conditionally unconstitutional in Decision Number 4/PUVII/2009.
In the consideration of the decision, the conditionally constitutional decision was not responded by the legislators; they even added tougher requirements.
The following is the legal consideration of the Decision Number 4/PUU-VII/200942.
“…To date, it has not received any responses yet.
However, the legislators have set tougher restriction and/or tougher violation by changing the phrase “at the moment not..” to ‘never’.
Therefore, the Constitutional Court suggests that further encouragement to declare the Articles over the cases conditionally unconstitutional is needed.
With this, the Constitutional Court recommends that legislators work harder to perform judicial review for all laws, where the ex-inmates’ rights to vote must be made based on this decision.” Along with their development, the conditionally unconstitutional decisions do not always refer to the formulation of phrase ‘conditionally unconstitutional’ or ‘conditionally constitutional’.
Some phrases used in conditionally unconstitutional dictums involve: ‘contravene the 1945 Indonesian Constitution, conditionally’; contravene the 1945 Indonesian Constitution as long as they are not defined…’43; they are unconstitutional as long as they are defined… 44 ’; ‘contravene the 1945 Indonesian Constitution when they are defined…’; ‘conditionally unconstitutional’; or ‘conditionally contravene’.
Number of Conditional Decisions Conditional decisions had increased in number from 2003 to 2017.
In 2003 and 2004, there were no conditional decisions, and they started to exist back in 2005.
The highest number of conditional decisions was in 2015, accounting for 18 decisions.
The Figure below compares the number of conditional decisions and the total number of decisions annually.
42 The CC’s Decision Number 4/PUU-VII/2009, paragraph 3.19.
43 The CC’s Decision Number 127/PUU-VII/2009.
44 The CC’s Decision Number 2/PUU-IX/2011.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 102 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution Figure 1.
Number of Decisions and Conditional Decisions 2003 – 2017 Compared to granting decisions, the number of conditional decisions had increased since 2008, accounting for 50% of granting decisions.
It indicates that conditional decisions serve as the main instrument for the CC to resolve constitutional issues stemming from the cases that are faced to guard supremacy of the constitution.
The following Figure indicates the change in granting decisions and conditional decisions.
Figure 2.
Granting Decisions and Conditional Decisions Conditional decisions comprise conditionally constitutional and conditionally unconstitutional decisions.
The former was often delivered during the time the CC was initially established to 2010.
The latter, however, started to be delivered in 2009, and since 2011 it has been the only conditional decisions delivered.
The conditionally constitutional decisions had no longer been delivered since 2011.
The following are conditionally constitutional and conditionally unconstitutional decisions: 0 0 1 2 1 4 10 6 9 15 11 17 18 9 13 4 35 28 29 27 34 51 61 94 97 110 131 157 96 131 0 20 40 60 80 100 120 140 160 180 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Conditional Total Decision 0 0 1 2 1 4 10 6 9 15 11 17 18 9 13 0 11 10 8 4 10 15 15 21 30 22 29 25 19 22 0 5 10 15 20 25 30 35 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Conditional Granted Decision Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 103 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution Figure 3 Conditionally Constitutional and Conditionally Unconstitutional Decisions CC: conditionally constitutional CUC: Conditionally unconstitutional Conditionally unconstitutional decisions mostly used by the CC as part of its authority to perform judicial review authority can also be seen from the ratio between conditionally unconstitutional decisions and granting decisions, in which since 2011, the annual average of conditionally unconstitutional decisions has accounted for a half of the total of granting decisions, as presented in Figure 4.
Figure 4.
Conditionally Unconstitutional Decisions (CUC) and Granting Decisions Characters of Norm and Types of Conditional Decision In terms of the substance, the norms reviewed in conditionally decisions can be classified into three: a.
The norms of the Law reviewed contravene the Constitution.
When the norms reviewed are found contravening the Constitution, they should be declared as inconsistent with the Constitution and not legally 0 0 1 2 1 4 3 3 0 0 0 0 0 0 0 00 0 0 0 0 0 7 3 9 15 11 17 18 9 13 00 2 4 6 8 10 12 14 16 18 20 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 CC CUC 0 0 0 0 0 0 7 3 9 15 11 17 18 9 13 0 11 10 8 4 10 15 15 21 30 22 29 25 19 22 0 5 10 15 20 25 30 35 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 CUC Granted Decision Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 104 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution binding, meaning that the norms are revoked.
Following the revocation, the legal norms are null.
In terms of the case handled, deciding between constitutional or unconstitutional principally cannot be performed by revoking norms.
The CC is in its position not only to determine whether the norms of a law contravene the Constitution or not, but it should also determine the norms that are consistent to the Constitution.
When the CC is only responsible for declaring the norms inconsistent with the Constitution without determining the norms that should be consistent to the Constitution, legal loophole may arise, which may lead to another problem in reinforcing supremacy of the constitution.
This can be learned from the Decision Number 1/PUUVIII/2010 reviewing the age limit in Law concerning Juvenile’s Court.
The CC decided that the age limit of a child stipulated in the Law is 8 years old, which is inconsistent with the Constitution.
However, the CC must not revoke the requirement of eight years old or it will lead further to a legal loophole, paralysing the Law concerning Juvenile’s Court.
The CC suggests that the proper age limit is 12 years old.
This is then stipulated in the dictum stating that phrase ‘eight years old’ in Law concerning Juvenile’s Court is inconsistent with the Constitution, unless it is defined as ‘twelve years old’.
By this dictum, the CC has performed two actions: revoking the age limit of ‘eight years old’, and stating ‘twelve years old’ as a constitutional norm replacing the revoked norm.
b.
The norms of the Law reviewed are multi-interpreted.
A multi-interpreted norm has more than one meaning or unclear meaning.
This can happen because the substantive meaning of the norm is murky, leading to wider definition that includes things that may even make the norms inconsistent with the Constitution.
There are three possibilities in the content of the decisions related with this norm: formulating norm that is not multiinterpreted, formulating norm that restricts interpretation, formulating exception norm, or formulating more elaborative norm.
The example of the decision examining the multi-interpreted norm is in Decision Number 19/PUU-IX/2011 concerning the review for provisions in termination of employment due to emergency circumstances in Law concerning Labour.
One of the emergency circumstances ruled in Article 167 of Law concerning Labour is the closedown of company that may lead to two interpretations of whether temporarily or permanently closed.
When it is defined as temporarily closed, it is inconsistent with the Constitution.
The CC has passed a conditionally unconstitutional decision by forming a norm that is not multiinterpreted, stating that the closed companies are restricted to ‘companies closed permanently or companies closed not temporarily’.
Another example of the decision that restricts interpretation can be seen in Decision Number 35/PUU-XI/2013, which reviews the authority of the House of Representative (DPR) to add “star sign” on State Budget that has Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 105 been approved, indicating that further session is needed and, thus, the budget cannot be cashed yet.
This authority is based on Article 71 (g) of Law concerning Parliament (MD3 Law) that is understood as that further discussion still takes place following the approval and validation of the State Proposed Budget.
The CC restricts the interpretation of Article 71 (g) of MD3 Law by declaring inconsistent with the Constitution as long as it is defined as ‘there is following session after the State Budget bill is enacted to State Budget’.
The decision regarding exception norm can be seen in Decision Number 38/PUU-XI/2013 concerning legal entities of private hospitals.
This decision excludes public hospitals that are run under non-profit legal entities from the obligation to become legal entities that only operate in hospitalrelated fields.
Decision Number 135/PUU-XIII/2015 is the example of the decision that is aimed to form more elaborative norm that is not multi-interpreted.
This decision is concerning the right to vote for a person with mental illness.
Article 57 paragraph (3) of Law concerning Local Government Head Election (Local Election Law) states that the right to vote is only restricted to those with no mental illness, while mental illness itself has its varied stages in which some with mental illness are still allowed to vote.
In such a case, the CC, with this decision, forms more elaborative norm by putting “being in permanent mental illness/memory impairment that, according to mental health professionals, causes the sufferers to lose their ability to vote in general elections”.
c. The norms reviewed are incomplete.
Incomplete norm reviewed occurs when certain condition is not anticipated or when there is a loophole in the Law.
When a norm is found incomplete, the CC forms a new norm that completes the norm without revoking the existing norm.
The case over incomplete norm can be seen in Decision Number 84/PUUXI/2013 regarding time period for General Meeting of Shareholders (RUPS) in Law concerning Limited Liability Companies.
The provision of Article 86 paragraph (9) of Law concerning Liability Companies governs the second and the third RUPS, while the RUPS is possibly held in reference to court decision in which the time period is not governed in the Law.
Therefore, the CC decides that the RUPS must be held at least within 21 days after court decision is delivered.
The different characters of the norm reviewed are not related with whether a decision is conditionally constitutional or conditionally unconstitutional.
This is obvious in the decisions with the characters of norms inconsistent with the Constitution, multi-interpretation, or incompleteness, where, despite those characters, some decisions are conditionally constitutional and some others are conditionally unconstitutional, as can be seen in the following Figure.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 106 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution Figure 5.
Characters of Norms and Conditional Decisions Either conditionally constitutional or conditionally unconstitutional decisions are principally intended to change, add, or elaborate norm reviewed according to the CC opinion.
What differentiates is the location of the conditional statement.
If in legal consideration and conclusion, the CC only gives interpretation that has to be further responded by legislators.
When the statement is in the dictum, the CC has formed a new norm.
For conditionally constitutional decisions, the CC sometimes gives interpretation and it sometimes forms a new norm.
When giving interpretation, it is put in legal consideration.
However, when the norm is formed, it is inserted in the dictum.
Since forming norms is performed in conditionally unconstitutional decisions, these decisions are always included in the dictum.
The evolution of the conditional decisions is conditionally constitutional in the legal consideration, conditionally constitutional in the dictum, and conditionally unconstitutional in the dictum.
Figure 6.
Conditional Decisions and Substance of Decisions Especially for conditionally unconstitutional decisions, the characters of reviewed norm are connected to the substance of the decision given.
The characters of reviewed norm that is inconsistent with the Constitution will result in a decision forming new norm that is consistent with the Constitution.
The 1 8 5 37 35 30 0 5 10 15 20 25 30 35 40 Contra vening Mult i-interpr eted Incompl ete CC CUC 3 3 2 3 3 0 0 0 0 0 0 0 30 17 7 4 37 7 0 5 10 15 20 25 30 35 40 constitutional interpret.
interpret.
Narr owing interpret.
Completing new norm completing new norm not multi inter pret new norm limit interpret new exception norm new norm constitutional new norm in detail CUC CC Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 107 characters of reviewed norm for multiinterpretation result in the substance of decision that can be classified into four, comprising an exceptional new norm, new norm restricting interpretation, non-multiinterpretation new norm, or more elaborative new norm.
The norm reviewed for incompleteness results in decision forming new norm that supplements the incomplete, as shown in the following Figure.
Figure 7.
Norm characters reviewed and Substance of Conditionally Unconstitutional Decisions Reconstruction of Conditional Decision Model 1.
Urgency of Conditional Decision Recalling that one of the substance of the conditional decisions are the formation of norms, these decisions are classified as judicial activism since they are off the existence of the CC as negative legislator that can only revoke Law.
One of the definitions of judicial activism is when judge’s decision is deemed formation of law instead of interpretation of law45.
Along the progress of courts, especially constitutional court, it is common to discover some laws are not appropriately formulated, where there is internal inconsistence that is not applicable in certain condition.
The 45 Leslie Zines, ‘Judicial Activism and the Rule of Law in Australia’, in Campbell and Goldsworthy (eds.
), above n.19 391. internal inconsistencies will lead to uncertainty and discrimination that against the Constitution.
Therefore, judicial activism, Champbell argues, is required after stages performed by the judge in deciding a case.46 The law formed by judge is sharper and holds strong authority since it is constructed through court that determines more conceiving meaning of a rule.47 The progress of conditional decisions passed by the CC can also be seen in European Countries and Latin America.
Constitutional Courts do not only act in traditional way as negative legislator, but also as courts that supplement or assist legislative body to run its function to form law.48 46 Ibid 357 – 359.
47 Bodenheimer, above n 24, 439.
48 Brewer-Carias, above n 6, 73.
0 0 0 0 37 0 0 17 7 4 0 7 30 0 0 0 0 0 0 5 10 15 20 25 30 35 40 new norm completing new norm not multi inter pret new norm limit interpret new exception norm new norm constitutional new norm in detail contra vened multi inter pret incom plete Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 108 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution According to the analysis of conditional decisions passed by CC in other countries, conditional decisions are always required or they can be called as consequences of three principles: enforcement of constitutional supremacy, presumption of validity, and strengthening implementation of CC decisions.
Figure 8.
Grounds for Conditional Decisions Through its authority to deliver decisions over judicial review, the CC is to guard the supremacy of the Constitution.
The Constitution should be positioned as the highest Law whose enforcement is guaranteed by Law, and it is passed down to lower regulations gradually.
This function to guard the Constitution cannot be entirely performed when the CC only determines whether the Law reviewed is constitutional or not.
When the CC decides whether a norm is constitutional or not, the CC per se has to interpret the Constitution and decide what norm is constitutional.
Suppose the CC is only restricted to revoking norms reviewed without forming another constitutional norm.
In that case, the Constitution cannot be enforced, let alone when the legislator forms a different norm inconsistent with the Constitution in the following days.
The function to guard supremacy of the Constitution cannot be enforced when constitutional norms that are supposed to be enacted in Law are not included or incomplete.
To make the Constitution enforceable, the CC needs to supplement constitutional norms into the norms of the Law reviewed, unless the authority of CC is only restricted to revoking norms of the Law reviewed.
The principle of presumption of validity is not only limited to the definition that the norm reviewed stays valid until the judge’s decision stating otherwise is delivered but it is also understood as the condition where the constitutionality of a norm is determined by the substance of the norm per se, not by another norm.
Legal norms formulated by legislators can possibly be multi-interpreted where one of the interpretations may be inconsistent with the Constitution.
One of it that is inconsistent should not be the sole ground for deciding that the norm is inconsistent with the Constitution since there might be another relevant interpretation that is constitutional.
What can be done is sorting out which interpretation is inconsistent with the Constitution and which one is not.
Similarly, when there is a loophole or incompleteness in a particular norm, it cannot be taken because the entire norm is inconsistent with the Constitution.
For example, when a norm determines requirements for a person to sit in an official position X involve a, b, c, and d, while based on the Constitution the requirements that have to be fulfilled involve a, b, c, d, e, it cannot be considered that the provisions in the Law are inconsistent to those in the Constitution, or it may be constitutionally beneficial when requirement e is added instead of when all requirements in the Law are revoked.
Like constitutional courts in Europe and Latin America, when a rule, either consistent or inconsistent to the Constitution, Conditional Decisions constitutional supremacy Presumption of validity enforcement of decisions Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution | 109 can be interpreted, the CC tends to keep its validity by interpreting what is consistent with the Constitution and rejecting any interpretation inconsistent with the Constitution.49 The CC’s Decisions are likely to be declared as conditional decisions instead of revoking norms in the Law.
In the third principle, the enforcement of decisions can be seen from the progress of conditional decisions as elaborated earlier in this article.
The conditional decisions that were initially conditionally constitutional in the judge’s consideration turning to conditionally unconstitutional in the granting dictum are seen as an attempt of the CC to assure the enforcement of the CC decisions.
2.
Conditionally Unconstitutional In line with the consideration and the progress of the decisions delivered by the CC, conditional decisions used are conditionally unconstitutional ones.
Conditionally constitutional decisions are not appropriate to be enforced due to the following reasons: a. Conditionally constitutional decisions are to be appropriately put in legal consideration, or they are irrelevant when put in granting dictum.
However, in terms of the way they are enforced, the decisions have some shortcomings since several parties believe that it is the dictum that is binding, not the legal consideration.
b.
The ratio of the CC given in legal consideration is only as interpretation of norms, not as a legal binding norm.
c. When inserted into granting dictum, conditionally constitutional decisions are not in line with granting dictums since the first dictum grants the petition but the following dictum declares that 49 Ibid 74. the norm reviewed is constitutional but under certain conditions.
Conditionally unconstitutional dictums have the following strengths: 1) Since they are included in the dictums, there is no doubt over their binding capacity.
2) It is appropriate when inserted into the dictum that grants since the first dictum grants the petition, followed by the second dictum declaring the norm reviewed is inconsistent with the Constitution.
3) When they are placed in the dictums, the CC not only makes legal interpretation, but it also forms legal norm, making the reviewed norm constitutional.
4) When requirements set by the CC in conditionally unconstitutional decisions are not fulfilled, based on the law, provisions reviewed no longer serve as legal norms, thus, they no longer need any further enforcement such as amendment made by legislators or judicial review by the Constitutional Court.
The norms reviewed and declared conditionally unconstitutional consist of those inconsistent with the Constitution, multi-interpreted, or incomplete.
Conditionally unconstitutional decisions can contain new norms required to transform the norms reviewed from unconstitutional to constitutional: a.
When the norms reviewed are inconsistent with the Constitution, conditionally unconstitutional decisions form new norms to replace the norms that are declared irrelevant to the 1945 Constitution.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 110 | Safa’at, Widiarto Conditional Decisions as Instrument Guarding the Supremacy of the Constitution b.
When the characters of the norms reviewed are multi-interpreted, conditionally unconstitutional decisions form new norms that are not multiinterpreted, in exclusion, more elaborated, or restrict interpretation.
c. When the norms reviewed are incomplete, conditionally unconstitutional decisions form new norms that supplement the norms reviewed.
IV.
CONCLUSION In conclusion, distinguishing the characters of norms reviewed is not related to whether decisions are conditionally constitutional or conditionally unconstitutional.
It is obvious that several decisions with the characters of reviewed norms irrelevant to the 1945 Constitution, multi-interpreted, incomplete, declared conditionally constitutional, or declared conditionally unconstitutional.
For conditionally unconstitutional decisions, the characters of the reviewed norm are connected to the substance of the decision given.
The characters of the reviewed norm that is inconsistent with the Constitution will result in a decision forming a new norm that is consistent with the Constitution.
The characters of the reviewed norm for multi-interpretation result in the substance of decision that can be classified into four, comprising an exceptional new norm, new norm restricting interpretation, non-multi-interpretation new norm, or the more elaborative new norm.
The norm reviewed for incompleteness results in a decision forming a new norm that supplements the incompleteness.
The authors conclude that the conditional decision is inevitable due to the function of the CC in guarding the supremacy of the Constitution and as the final interpreter of the Constitution.
Conditional decisions, either in the interpretative decision or in the additive decision, are required or can even be said as a consequence of the following three principles: enforcement of constitutional supremacy, the presumption of validity, and strengthening the implementation of the CC decisions.
In line with the consideration and progress of the CC decisions, conditional decisions used are the conditionally unconstitutional ones.
The norms reviewed and declared conditionally unconstitutional consist of the norms inconsistent with the Constitution, multi-interpreted, and incomplete.
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i PREFACE Over the last few years, Law Faculty of Brawijaya University has been actively enganged with several foreign universities all over the world for mutual academic colaboration.
One of the active colaboration is with University of Wollongong, especialy with Law School.
Various seminars as well as forum group discussions and student and lectures exchange have been established between Brawijaya University and University of Wollongong.
The latest academic collaboration was a short course held in June 2014 was aimed to produce a joint academic publication.
This special issue of Brawijaya Law Journal (BLJ) addresses contemporary issues in South-East Asia Countries.
It comprises of 5 selected papers originaly presented at short course programme jointly organised by Brawijaya University and the University of Wollongong on 2-14 June 2014 in Wollongong.
However, 1 other paper included within this issue was selected on the regular basis with the same issue.
The papers presented in this special issue of BLJ underwent strict editorial process as expected from its status as international legal journal.
In this special issue, two academics from both universities worked together as guest editors: Associate Professor Nadirsyah Hosen of Law School Wollongong University and Dr. Dhiana Puspitawati of Law Faculty Brawijaya University.
This special issue demonstrates a strong and solid collaboration between two universities.
We are outmost grateful to the Faculty of Law, Brawijaya University, and especially to our newly appointed Dean Dr. Rachmad Safa’at, SH, M.Si for his support in funding the printing cost of the special issue.
Our special gratitude is also to the Dean of Law School Wollongong University, Professor Warwick Gullett for his support in establishing academic short course back in June 2014.
The timely publication of this special issue would not be possible without the full commitment of Brawijaya Law Journal Division’s editors and staff, Ms. Nanda Saraswati, Ms Hikmatul Ula and Ms. Angela Ade.
Nadirsyah Hosen Dhiana Puspitawati Guest Editors March, 2015 ii EDITOR IN CHIEF Dhiana Puspitawati, International Law of the Sea and Maritime Law CO-EDITOR Hikmatul Ula, International Economic Law Nanda Saraswati, International Human Rights Law TECHNICAL EDITOR Angela Ade Saptari EDITORIAL OFFICE 4th Fl.
A Bld.
Faculty of Law, Brawijaya University Jln.
M.T.
Haryono 169 Malang 65145 Email: blj@ub.ac.id url: http://lawjournal.ub.ac.id ISSN 2356-4512 EDITORIAL BOARD Robin Margaret Fraser Warner University of Wollongong, NSW Australia, Australia Hikmahanto Juwana Faculty of Law, University of Indonesia, Indonesia Lowell Bautista Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia Cristoph Enders Universitӓt Leipzig, Germany Kamal Halili Hasan Faculty of Law, Universiti Kebangsaan Malaysia, Malaysia Mary Ann Palma-Robles Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia Safinaz Mohd Hussein Faculty of Law, Universiti Kebangsaan Malaysia, Malaysia Mohd Hazmi Bin Mohd Rusli Universiti Sains Islam Malaysia, Malaysia Muchamad Ali Safaat Faculty of Law, Brawijaya University, Indonesia Dhiana Puspitawati Faculty of Law, Brawijaya University, Indonesia Afifah Kusumadara Faculty of Law, Brawijaya University, Indonesia mailto:blj@ub.ac.id http://lawjournal.ub.ac.id/ iii BRAWIJAYA LAW JOURNAL VOL.
2, No.
1 (S) April (2015) CONTEMPORARY ISSUES IN SOUTH-EAST ASIA COUNTRIES CONTENT ALIGNMENT OF MALAYSIA AND ASEAN AGREEMENTS ON ICT LAWS: A REVIEW Nazura Abdul Manap, Ph.D.
Faculty of Law, the National University of Malaysia, 1-14 PRESS FREEDOM IN SINGAPORE AND MALAYSIA: DEFAMATION AND OTHER CONSTRAINTS Georgia Kate Chapman, Law School, University of Wollongong, 15-25 THE FREEDOM OF INFORMATION IN INDONESIA AND AUSTRALIA Jodie Partridge, Law School, University of Wollongong, 26-40 GOVERNMENTAL CONTROL OR BIG COMPANY CONTROL IN AUSTRALIA ON JOURNALISTIC PRACTICE: WHICH IS WORSE AND WHERE ARE THE PARALLELS?
Elizabeth Sinclair, Law School, University of Wollongong, 41-53 COUNTER-TERRORISM IN INDONESIA Jordan Sebastian Meliala, Faculty of Law, Brawijaya University, 54-73 MODERN SLAVERY IN INDONESIA: BETWEEN NORMS AND IMPLEMENTATION Savira Dhanika Hardianti, Faculty of Law Brawijaya University, 74-84 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 1 Volume 2(S) No.
1 (2015) ALIGNMENT OF MALAYSIA AND ASEAN AGREEMENTS ON ICT LAWS: A REVIEW Nazura Abdul Manap (Ph.D) Associate Professor Faculty of Law The National University of Malaysia (UKM) 43600 Bangi, Selangor, Malaysia.
nazura@ukm.edu.my ABSTRACT The mega Multimedia Super Corridor (MSC) project launched in 1996 is a strong endorsement of the Malaysian government’s commitment toward developing ICT industry in Malaysia.
To attract world-class technology companies and prepare the local ICT industry, the government has offered MSC Malaysia status to companies developing or using multimedia technologies in producing and enhancing their products and services and locating in any of the 26 cyber-cities and cyber-centres in Malaysia.
MSC status confers incentives, rights, and privileges under the MSC Malaysia Bill of Guarantees.
This ICT initiative also underlies Malaysia’s commitment to lead the region in protecting intellectual property and adherence to cyber laws.
As a member of e-ASEAN, this assurance aligns with the e-ASEAN initiative: ‘… to adopt electronic commerce regulatory and legislative frameworks that create trust and confidence for consumers and facilitate the transformation of businesses towards the development of e-ASEAN’.
This paper identifies and analyses the extent of the Malaysian government’s compliance with e-ASEAN principles particularly in the legal and regulatory aspects.
Keywords: electronic commerce, ASEAN.
I.
INTRODUCTION The information communication revolution has had a significant impact on the world today.
Computers and the Internet have become powerful tools permeating almost every area of modern living including making decisions on our behalf.
The tremendous spread of these facilities has influenced not only social well-being but also has major ramifications on the overall development of nations.
As in other countries, the use of ICT in Malaysia has contributed much to its development.
However, similar to any other technology, the many positive aspects of ICT mailto:nazura@ukm.edu.my Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 2 Volume 2(S) No.
1 (2015) also have their attendant downside risks.
While acknowledging the strategic importance of ICT as a driver to support and contribute directly to the growth of Malaysian economy, the government is aware that appropriate legal mechanisms are needed to monitor and manage this technology.
Thus, the Malaysian Multimedia Super Corridor project not only provides incentives for ICT development but also includes in its framework the necessary legislative and enforcement provisions.
II.
DEVELOPMENT OF ICT IN MALAYSIA Background In the early years following the independence in 1957, Malaysia focused its efforts on strengthening the agriculture-based economy through the development of its basic infrastructure particularly in rural areas.
After the riots of 1969, the New Economy Policy was formulated with its twin-pronged objective of eradicating poverty and restructuring Malaysia society to eliminate the identification of race with economic functions 1 .
During the 1980s, basic ICT infrastructure was developed in the form of basic telephony services to rural and urban area with the aim of increasing access to mobile and fixed-line services 2 .
Next, in 1991, Vision 2020 was formulated aimed at bringing Malaysia at par with developed countries by the year of 2020.
This vision was a turning point to transform Malaysia into a knowledge driven society in which ICT plays a major role.
Subsequently, the 8 th Malaysia Plan (2001-2005) included the introduction of a KEconomy and the potential growth of digital infrastructure.
The succeeding 9 th Malaysia Plan 1 Mudiarasan Kuppusamy and Bala Shanmugam, (2007) ‗Information Communication Technology and Economic Growth in Malaysia‘ 11(2) Review of Islamic Economics 89-90.
2 Mudiarasan Kuppusamy, Murali Raman, Geoffrey Lee, (2009) ‗Whose ICT Investment Matters to Economic Growth: Private or Public?
The Malaysian Perspective‘ 37(7) EJISDC 1-19, 5.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 3 Volume 2(S) No.
1 (2015) (2006-2010) incorporated the enhancement of ICT as one of its agenda involving the building of vital ICT infrastructures in the public and private domains.
The increased use of ICT infrastructure led to the need for national information security initiatives as reflected in the establishment of an emergency response centre to oversee the regulatory, technical, and security aspects of the internet 3 .
With this framework in place, Malaysia is well-prepared to introduce ICT into its everyday life through initiatives such as e-commerce, e-education, and e-health or telemedicine.
These strategic plans have produced increasing accessibility to the internet and its related services including wired and wireless technologies for enhancing broadband services throughout the country.
Competition in the telecommunication services is encouraged by allowing the entry of new players resulting in the proliferation of various products and services in the market and in more affordable internet services.
ICT connectivity was enhanced in 2000 when 33 pilot community-based Internet Centres were established nationwide of which 12 of them were in rural areas.
This was followed by additional thirty one Internet/ Information Centres developed throughout the country between 2001 until 2003 and 13 national pilot projects of the NITC Strategic Task Force conducted through a Public-Private Partnership model.
ICT development in the country was boosted with the implementation of the US$20 billion mega Multimedia Super Corridor project in Malaysia.
Multimedia Super Corridor Malaysia On 12 February 1996, the Multimedia Super Corridor was launched with the aim of accelerating the objectives of Vision 2020.
This MSC Malaysia project is an important program aimed at achieving the creation of knowledge based society.
Amongst the initiatives of this 3 Muhammad Jehangir, P.D.D Dominic, Naseebullah, Alamgir Khan, (2011) ‗Towards Digital Economy: The Development of ICT and e-Commerce in Malaysia‘ 5(2) Modern Applied Science 171 <www.ccsenet.org/mas>.
http://www.ccsenet.org/mas Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 4 Volume 2(S) No.
1 (2015) program is the formation of the MSC flagship which serves as a hub for players and users in the multimedia industry.
This mega project is fully supported by the Malaysian government and is a gateway to the ICT industry in Malaysia with the objective of attracting world class technology companies while preparing the local industry for the ICT age.
The companies that develop or use multimedia technologies to produce and enhance their products and services may be granted MSC Malaysia status and be located in any of the 26 cyber-cities and cyber-centres in Malaysia.
MSC status comes with some incentives, rights, and privileges accorded under the MSC Malaysia Bill of Guarantees.
It also underscores the assurance by Malaysia to be a regional leader in promoting intellectual property protection and adherence to cyber laws.
MSC Malaysia operates within an area of approximately 15 km (9.3 mi) by 50 km (31 mi) or about 750 km 2 (290 sq mi) starts from the Petronas Twin Towers in the city of Kuala Lumpur to the Kuala Lumpur International Airport in Sepang including the towns of Putrajaya and Cyberjaya.
The town of Port Klang was added to MSC Malaysia on 7 December 2006.
To oversee the coordinated and managed development of MSC Malaysia, the Multimedia Development Corporation (MDeC, formerly MDC) was established.
III.
ASEAN ICT INITIATIVE: e-ASEAN ASEAN was created in 1967 to promote regional cooperation among its member countries with the objective of (a) accelerating economic growth, social progress and cultural development and (b) promoting regional peace and stability in the region.
It currently has ten member countries, namely Brunei Darussalam, Cambodia, Indonesia, the Lao People‘s Democratic Republic, Malaysia, Myanmar, the Philippines, Singapore, Thailand, and Viet Nam.
http://en.wikipedia.org/wiki/Petronas_Towers http://en.wikipedia.org/wiki/Kuala_Lumpur_International_Airport http://en.wikipedia.org/wiki/Putrajaya http://en.wikipedia.org/wiki/Cyberjaya http://en.wikipedia.org/wiki/Port_Klang http://en.wikipedia.org/wiki/Multimedia_Development_Corporation http://en.wikipedia.org/wiki/Multimedia_Development_Corporation Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 5 Volume 2(S) No.
1 (2015) Recognizing the potentials of ICT, ASEAN member countries endorsed the e-ASEAN initiative in 1999 based on the ASEAN Vision 2020 defined two years earlier.
Amongst others the vision seeks to create a stable, prosperous, and highly competitive ASEAN economic region that facilitates the free flow of goods, services, investments, and capital, as well as the promotion of equitable economic development and reducing poverty and socioeconomic disparities by the year 2020.
The Elements of e-ASEAN ASEAN views ICT as one of the economic key factors having a significant impact on enhancing competitiveness in other sectors of industry.
Accordingly, e-ASEAN was established in the Annual Summit Meeting of ASEAN leaders in Manila on 28 November 1999 and signed during the ASEAN Informal Summit in Singapore in November 2000 4 .
The primary objective of e-ASEAN is to develop a ‗broad-based and comprehensive action plan including physical, legal, logistical, social, and economic infrastructure needed to promote an ―ASEAN e-space” as part of an ASEAN positioning and branding strategy‘ 5 .
e-ASEAN Legal Framework The ASEAN Information Infrastructure (AII) under the aegis of the e-ASEAN Framework Agreement of November 2000 focuses on the hardware and software systems needed to access, process, and share information, as well as to promote the growth of electronic commerce in the region.
Towards this end, ASEAN countries are required to adopt electronic commerce regulatory and legislative frameworks that will promote trust and confidence for technology users.
Under the agreement, the member states are required to: 4 Samtani Anil, (2001) ‗Electronic Commerce in Asia: The Legal, Regulatory and Policy Issues‘ 9(2) Int.
J Law Info Tech 93 5 Rodolfo Noel S. Quimbo, (2012) ‗The e-ASEAN Legal Framework and Its Challenges‘ Harmonized development of legal and regulatory systems for e-commerce in Asia and the Pacific: Current challenges and capacity-building needs, 81-83.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 6 Volume 2(S) No.
1 (2015) a. Expeditiously put in place national laws and policies relating to electronic commerce transactions based on international norms; b.
Facilitate the establishment of mutual recognition of digital signature frameworks; c. Facilitate secure regional electronic transactions, payments and settlements, through mechanisms such as electronic payment gateways; d. Adopt measures to protect intellectual property rights arising from e-commerce.
Member states should consider adoption of the World Intellectual Property Organization (WIPO) treaties, namely: ‗WIPO Copyright Treaty 1996‘ and ‗WIPO Performances and Phonograms Treaty 1996‘; e. Take measures to promote personal data protection and consumer privacy; and f. Encourage the use of alternative dispute resolution (ADR) mechanisms for online transactions.
The implementation of the e-ASEAN Framework Agreement is to be achieved via a series of measures outlined in the Roadmap for Integration of the e-ASEAN Sector (the eASEAN Roadmap).
The two key targets in the roadmap are: a.
Measure 78: Enact domestic legislation to provide legal recognition of electronic transactions (i.e., cyber laws) based on common reference frameworks.
b.
Review of e-commerce legislation harmonization in ASEAN resulting in 8 out of 10 countries having e-commerce legislation by the end of the project in 2009.
However, at the end of the project, Cambodia and the Lao People‘s Democratic Republic had still not passed electronic transaction legislation.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 7 Volume 2(S) No.
1 (2015) IV.
THE MALAYSIAN PERSPECTIVE Law and Regulatory Framework Laws relating to ICT have been in place in Malaysia even prior to the formulation of the e-ASEAN initiative.
The launching of MSC Malaysia in 1996 saw the introduction of four cyber laws namely the Computer Crime Act 1997, the Digital Signature Act 1997, the Telemedicine Act 1997, and the Copyright Act 1987 (Amendment Act in 1997).
The purpose of these Acts is to foster the development of ICT systems and to address issues of threats and abuses arising from their employment.
ICT related laws were strengthened by the inclusion of four other legislations namely the Communication and Multimedia Act 1998, the Electronic Commerce Act 2006, the Electronic Government Activities Act 2007, and the recent Personal Data Protection Act 2010.
Along with specific legislation for ICT-related issues, existing laws can also be used to provide that the matters involved fall within the legal elements provided in the traditional statutes.
For example the application of the Computer Crimes Act 1997 and the Electronic Commerce Act 2006 are supported by the respective parent Penal Code and the Contract Act 1950.
Conformity of e-ASEAN Obligation by Malaysian Legal Framework: An Analysis The rapid developments in ICT have posed huge challenges to legislators in instituting effective legal mechanisms aimed at protecting users of the technology; despite that the Malaysian government has been proactive in ensuring that necessary legislations are in place for that purpose.
It can be said that with its wide range of cyber laws, Malaysia as a member state of ASEAN and in particular a signatory of e-ASEAN, has fulfilled the obligations required under the e-ASEAN Framework Agreement.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 8 Volume 2(S) No.
1 (2015) ICT opens up new and sophisticated opportunities for criminal acts and the potential to commit conventional crimes in non-traditional ways, cyber-crime being the foremost and most obvious among them.
The enactment of the CCA 1997 is seen as a means to combat such cybercrimes; where any unauthorised access/ modification to any programme or data in a computer is deemed an offence subject to penalties.
The anonymity provided by cyber space makes it necessary for additional and more robust security protections to be put in place.
In line with this, the Digital Signature Act 1997 was enacted to provide the security and confidence that would encourage the public to perform electronic transactions domestically and internationally.
Under the Act, the digital signature provides a verification system to authenticate the identity of the author and verify the transmitted message.
Being one of the seven flagships in the MSC Malaysia, telemedicine or tele-health activities require attention to ensure proper protection.
For this purpose, the Telemedicine Act 1997 was enacted to provide the regulatory framework governing the practice of telemedicine and to recognise the use of multimedia in the medical field.
The digital element of ICT allows easy unauthorised copying and pasting primarily on the internet.
The Copyright Act 1987 was amended in 1996 and 1997 to address this issue by extending copyright protection to internet transactions.
The amendments took into account the developments in information technology particularly those related to copyrights covered by the World Intellectual Property Ownership (WIPO) Copyright Treaty 1996.
The scope of copyright protection has been broadened to include the provision of exclusive rights of control to authors.
New copyright infringements and offences have been identified and regulated under this Act 6 .
6 Nazura Abdul Manap et al, (2013), ‗The Influence Of e-Asean In The Development Of ICT Law In Malaysia‘ 8(5) Internal Journal of Soft Computing 377-380.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 9 Volume 2(S) No.
1 (2015) The convergence of the three major technologies of telecommunications, broadcasting, and information resulted in the enactment of the Communication and Multimedia Act 1998.
This Act covers communications over the electronic media and does not affect the application of existing laws on national security, illegal content, defamation, and copyright.
It regulates various activities covering network facilities and service providers, application service providers, and content application services providers.
This Act empowers the minister to grant licenses for particular types of activities deemed fit and the flexibility to address the changing requirements as the industry evolves.
The easy access to the internet services in Malaysia has encouraged the extensive use of e-commerce transactions by both large companies and small scale enterprises.
Legal disputes arising out of such contractual transactions may be handled through the Electronic Commerce Act 2006 for resolution.
This Act provides legal recognition of electronic messages in commercial transactions, the use of the electronic messages to fulfil legal requirements and to facilitate commercial transactions through the use of electronic means, and other related matters.
Electronic communication within the public sector as well as between the government and citizens requires a comprehensive legal framework to ensure efficient and secure electronic government services.
For this purpose, the Electronic Government Activities Act (EGAA) 2007 which came into effect on 1 January 2008 can be applied to agencies handling electronic dealings.
It does not grant any additional legal rights or change any substantive laws.
The above account demonstrates that Malaysia has met the provisions agreed upon in the e-ASEAN Agreement.
However, such legislation, no matter how comprehensive, requires appropriate and serious commitment in their implementation especially with regard to enforcement.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 10 Volume 2(S) No.
1 (2015) V. PROTECTING ELECTRONIC COMMERCE ACTIVITIES IN MALAYSIA Based on the combination of the Electronic Commerce Act 2006 and the Electronic Government Activities Act 2007, Malaysia has introduced a raft of comprehensive e-commerce laws.
With the enactment of the Personal Data Protection Act in 2010, Malaysia also became the first ASEAN member country to pass privacy legislation.
In addition, the government believes that updating of some provisions of its e-commerce legislation may be necessary owing to the constantly evolving technological changes and the emergence of social networking and mobile applications.
Malaysia had a very high number of mobile subscriptions at 127 per 100 inhabitants in 2011 and is also equipped with a moderate level of fixed broadband connectivity.
Overall Internet use in Malaysia stood at 61 per cent of the population in 2011, one of the highest in the region.
Electronic Transactions Laws The Electronic Commerce Act 2006 and the Electronic Government Activities Act 2007 are the key regulations governing e-commerce in the private and public sectors respectively.
The former closely mirrors the precepts of the United Nations Electronic Communications Convention.
Malaysia also has the Digital Signature Act 1997 specifically enacted for legislation for that purpose.
Its legal framework was subsequently strengthened to encourage future use via amendments in 2001.
In addition, the Electronic Commerce Act 2006 contains broad technologyneutral provisions on electronic signatures.
Consumer Protection The Consumer Protection Act 1999 is a general piece of consumer legislation in Malaysia that protects consumers against a range of unfair practices and enforces minimum product Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 11 Volume 2(S) No.
1 (2015) standards.
The amendments were introduced in 2007 and 2010 to widen its scope to cover electronic commerce transactions, and to introduce, among others, a new provision on general safety requirement for services.
The amendments also provide protection to consumers from unfair terms in a standard form contract respectively.
Malaysia also introduced the Consumer Protection (Electronic Trade Transactions) Regulations 2012, enforced in 2013.
These regulations impose certain obligations on online traders and online marketplace operators.
It seeks to promote consumer confidence in shopping and trading as a means to further spur the growth of e-commerce in the country.
There are also some limited consumer provisions incorporated in part 8 of the Communications and Multimedia Act 1998 which deal with the relationship between consumers and licensees and applies regardless of whether the transaction is electronic or not.
Subsection 188(1) requires all licensed service providers to deal reasonably with consumers and adequately address consumer complaints.
Part 8 of the Act also includes a voluntary consumer protection code covering the provision of information to consumers and the handling of personal information and complaints.
Privacy and Data Protection The Personal Data Protection Act 2010 governs the private sector and does not include government agencies.
It closely mirrors the principles in the European Union directive although some variations appear to adopt parts of the APEC Privacy Framework.
However, the Act does not contain any European Union style registration requirements.
To facilitate the implementation of Malaysia‘s Personal Data Protection Act which came into force on 1 January 2013, the Personal Data Protection Department was established.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 12 Volume 2(S) No.
1 (2015) Online Content Regulation The Communications and Multimedia Act 1998 established the Malaysian Communications and Multimedia Commission (MCMC) which is empowered to regulate ICT industries.
Broad authority has been provided by the Act to the commission to regulate online speech in which ―no content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten, or harass any person‖.
Thus, publishers of media content who violate this provision are subject to criminal penalties.
The Act also included the establishment of the Communications and Multimedia Content Forum of Malaysia which formulates and implements the Content Code—a set of voluntary guidelines for content providers on the handling of content considered offensive or indecent.
In general, the Malaysian government has pledged not to censor the Internet and there are no indications of technological filtering of the medium in the country.
However, existing government controls over the traditional media sometimes extend into the Internet resulting in self-censorship and the occasional investigation of bloggers and online commentators.
Cybercrime and Cyber Security Various sections of the Computer Crimes Act 1997 prohibit the following categories of activities related to unauthorized entry into computer systems: a.
Section 3: acts committed with intent to secure unauthorized access to programs or data stored in any computer; b.
Section 4: acts committed with intent to secure unauthorized access to programs or data stored in any computer to commit an offence involving fraud or dishonesty; Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 13 Volume 2(S) No.
1 (2015) c. Section 5: acts committed with the knowledge that they will cause unauthorized modification of the contents of any computer; d. Section 6: wrongful communication of any password, code, or means of access to a computer to any person not authorized to receive the same.
These provisions are more related to computer crimes than cybercrimes.
However, the provisions as found in e-commerce laws and copyright laws are updated and amended in 2012.
It complements Malaysia‘s cybercrime legislation and makes them more aligned with international standards.
Online Dispute Resolution and Domain-Name Regulation Three sections have been incorporated into Malaysia‘s Communication and Multimedia Act 1998 to address issues related the regulation of domain names.
Section 179 specifies that the MCMC is responsible for the planning, control, and administration of electronic addresses or domain names.
Section 180 empowers the MCMC with developing a numbering and electronic addressing plan that includes the formulation of rules for assigning and transferring such addresses.
Furthermore, the functions contained in sections 179–181 appear to be delegated to MYNIC—the registrar of Malaysia‘s country code top-level domain (ccTLD).
In addition to being the registrar, MYNIC is the registry and administrator of the .my domain.
VI.
CONCLUSION The ASEAN initiative to apply uniform standards for ICT implementation throughout the ASEAN region is a useful idea as it will provide member countries the opportunity to benefit from the current ICT regime without neglecting the need to regulate the use of technologies.
Although some countries such as Malaysia have adopted relevant laws to ensure the secure and Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 14 Volume 2(S) No.
1 (2015) effective use of ICT, the effectiveness of enforcement will remain an issue to be overcome with no or limited cooperation from the member countries.
In a borderless electronic world, ASEAN member countries cannot confine themselves within the region.
Thus, it is important to seek outside assistance and learn lessons from both within and outside the region.
REFERENCES Abdul Manap, Nazura, et al, (2013) ‗The Influence Of e-Asean in The Development of ICT Law in Malaysia‘ Internal Journal of Soft Computing.
Anil, Samtani, (2001) ‗Electronic Commerce in Asia: The Legal, Regulatory and Policy Issues‘ Int.
J Law Info Tech.
Jehangir, Muhammad, P.D.D Dominic, Naseebullah, Alamgir Khan, (2011) ‗Towards Digital Economy: The Development of ICT and E-Commerce in Malaysia‘ 5(2) Modern Applied Science, <www.ccsenet.org/mas> Kuppusamy, Mudiarasan, Murali Raman, Geoffrey Lee, (2009) ‗Whose ICT Investment Matters to Economic Growth: Private Or Public?
The Malaysian Perspective‘ EJISDC.
Kuppusamy, Mudiarasan and Bala Shanmugam, (2007) ‗Information Communication Technology and Economic Growth in Malaysia‘ 11(2) Review of Islamic Economics.
‗Review of e-Commerce Legislation Harmonization in ASEAN‘ (2013) United Nations Conference on Trade and Development (UNCTAD).
Rodolfo Noel S. Quimbo, (2012) ‗The e-ASEAN Legal Framework and Its Challenges‘ Harmonized Development of Legal and Regulatory Systems for e-Commerce in Asia and the Pacific: Current Challenges and Capacity-Building Needs.
http://www.ccsenet.org/mas Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 15 Volume 2(S) No.
1 (2015) PRESS FREEDOM IN SINGAPORE AND MALAYSIA: DEFAMATION AND OTHER CONSTRAINTS Georgia Kate Chapman Law School, University of Wollongong ABSTRACT This paper focuses on the arguments around restriction on freedom of the press in the Strong States of Singapore and Malaysia.
It assesses the presence of constraints on press freedoms in democratic western countries imposed by corporation rather than the nations and the similar effects that these constraints may have on the bias present in publicly accessible news reporting.
It argues that independence of the press does not only require protection from legal and executive regulation, but also protection from large media corporations and their political alignments.
This report will assess the bias of reporting and news media publication that exists in Malaysia and Singapore due to legislative and regulatory constraints as opposed to the bias that exist in the western liberal democratic nations of the United Kingdom (UK) and the United States of America (USA) due to Media Organisation control.
Key words: freedom of press, publication control, media and politics.
I.
INTRODUCTION Civil defamation law limits the capacity of media outlets to report the news freely.
There are ever present constraints to media from both corporate and political influences 7 .
These create an interesting priority list; a hierarchy that does not put the interests of the individual and their access to accurate information first, or second.
Global media groups are the key social actors playing a large part in media accessibility; shaping the social world by exerting control over issue-framing and information gate keeping.
One of the largest media organisations in the world, NewsCorp (top 5) is an example that will be used in this paper to outline influences on public‘s access to media in the liberal democracies of 7 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore 129.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 16 Volume 2(S) No.
1 (2015) the UK and the USA.
The separation of corporation and State from power is difficult and it is even harder to determine whether it is to be the direct dominator of the other 8 .
This will assist in supporting the view that the power which large media organisations possess can have large influences over both politics and legislation; moreover, their use of this power in changing access to the media and journalist ability to freely express opinions 9 .
Defamation legislation and the application of this legislation and regulation in Malaysia, Singapore—as opposed to the UK and the USA—will support the argument that restrictive regulation creates political and corporate alignments over press freedom and public access to information.
Freedom of expression and speech is topical around the world.
Article 19 is an example of this international focus 10 .
II.
DEFAMATION LEGISLATION AND REGULATION The United Kingdom (UK) and The United States of America (USA) In the UK, civil actions around defamation for damages may be made brought to the High Court if the statement is defamatory, identifies or refers to the claimant, and were published‘ 11 .
This is covered by the Defamation Act 2013 12 .
The defamation against media generally deals with libel—the publication of a statement in permanent form, generally; a. print, b. broadcast on TV or radio, c. film, and 8 Arsenault and Castells, (2008) ‗Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis‘ 23(488) International Sociology 489.
9 Ibid.
10 Article 19 and Suaram, (2005) Freedom of Expression and the Media in Malaysia www.article19.org/data/files/pdfs/publications/malaysia-basline-study.pdf.
11 Defamation Laws in UK, 25/5/14, Kelly/Warner: International Defamation Law Legal Database, <http://kellywarnerlaw.com/uk-defamation-laws>/.
12 Defamation Act 2013 (UK).
http://www.article19.org/data/files/pdfs/publications/malaysia-basline-study.pdf Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 17 Volume 2(S) No.
1 (2015) d. Internet.
The rule in Reynolds 13 (UK) outlines recognition of ‗responsible journalism‘, via a ten point test determining how information was collected and verified, and how consultative steps had been taken prior to publication 14 .
It also addresses the urgency to publish.
Thus, it is a public interest test rather than a political or economic test which allows individuals to represent themselves better or to publish media without any fear of litigation.
This test ensures whether the information published is appropriately sought and presented.
In the USA, defamation legislation is dealt with by each individual state.
It is also referred to as slander.
Here, defamation is directly related to the First Amendment 15 ; making a case in defamation much more difficult for a plaintiff to bring about; as opinion cannot be considered as defamation in the USA.
Moreover, in this nation, service providers on the internet are not held to be accountable for defamatory statements made by visitors to their sites.
Large portions of the media outlets in both nations are owned by NewsCorp 16 .
The influence of NewsCorp and the large political authorities within the UK and the USA will be investigated further in this article.
In both of these democratic nations, defamation legislation is used predominantly by celebrities who feel that their image has been defamed in media.
Malaysia and Singapore There are high levels of media regulation within both Malaysia and Singapore; both of which are non-liberal Asian democracies.
Within non-liberal Asian democracies—sometimes 13 Reynolds v Times Newspapers Ltd [2001] 2.
14 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore 135.
15 United States Constitution amend I.
16 Arsenault and Castells, ‗Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, (2008), 23:488, International Sociology, 495.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 18 Volume 2(S) No.
1 (2015) referred to as semi or pseudo democracies 17 —government regulation over access to media and press freedoms is high 18 .
There is large political pressure on editors of publication, in order to ensure that information provided to the public is not damaging the powerful political parties of these nations.
In Singapore, the Newspaper and Printing Presses Act (NPPA) 19 will not circulate foreign publications if they are seen to be detrimental to the local political regime 20 .
These laws also require the possession of a licence for publishers to be able to release press to the public.
The licensing has been—from interviewees—the most onerous element of the press freedom restrictions within Singapore 21 .
This regulation is seen to be more restrictive than the defamation legislation itself —Defamation Act (cap.
75).
In Singapore, it has been seen that in the court a media defendant has never succeeded against a government plaintiff 22 .
This historical track has led to self-censorship by many journalists, for fear of financial consequences and licensing removals 23 .
It is interesting to note that the Singaporean judicial system has not come under scrutiny of process.
However, it is the restrictive legislation causing the removal of press freedoms and access to media for the public.
The Malaysian legal system has historically imposed temporary bans or content censorships on media that ‗displeased the government 24 ‘.
Article 10 of the Malaysian Constitution guarantees the right to freedom of expression: ‗every citizen has the right to 17 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore 131.
18 Ibid, 132.
19 Newspaper and Printing Presses Act (rev.
edn 2002).
20 Whiting and Majoribanks(2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore, 132.
21 Ibid, 142.
22 Ibid, 136.
23 Ibid, 132 and 145.
24 Ibid, 132.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 19 Volume 2(S) No.
1 (2015) freedom of speech and expression… All citizens have the right to assemble peaceably and without arms 25 ‘.
This right to freedom of expression has many restrictions placed on it.
In reality, it may lead to heavy fines or potentially a prison sentence 26 .
It can be seen that there is also strict legislative control under the Printing Presses and Publications Act (PPPA) 27 .
Due to these restrictions, there is an increasing level of self-censorship by editors and journalists to ensure that they are able to renew their publishing licences.
The Royal Commission of Inquiry in 2007, following the ‗Lingham Tape‘ matter, led to Malaysians and others being able to open a dialogue around the issues within the Malaysian Courts with regard to defamation cases for media publication.
The court system in Malaysia has come under scrutiny for the efficiency and transparency of its judiciary, following a group of highly contentious defamation cases in the 1990‘s where government and business interests were reported by international reporters and journalists.
The damages awarded to the plaintiff‘s in these cases were exorbitant and received criticisms in an international sphere 28 .
This belief that the courts ‗defer to the State at the expense of the plaintiff‘s rights‘ 29 , outlines the lack of faith of in those in power.
‗Responsible journalism‘—based on Reynolds 30 —has been addressed in both Malaysia and Singapore with different outcomes of importance in each legal system.
Malaysian courts 25 Constitution of Malaysia 1957, art X.
26 Randhawa et al, (2005) Freedom of Expression and the Media in Malaysia: Part of A Series of Baseline Studies on Seven South East Asian Countries 6.
27 Printing Presses and Publications Act 1984 (Act 301).
28 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore, 136.
29 Ibid, 136.
30 Reynolds v Times Newspapers Ltd [2001] 2.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 20 Volume 2(S) No.
1 (2015) have accepted the idea of responsible journalism to the extent of critical speech—in principle 31 .
Singaporean courts have rejected the rule on all occasions.
This rejection of responsible journalism, allowing for appropriate verification, shows that press freedoms do not exist under the legislature or the judiciary in Singapore and are still restrictive in Malaysia 32 .
These restrictions have led to a ‗chilling‘ effect on media, reporting, and journalism in both of the nations, where levels of self-censorship have increased over the last 20 years following exorbitant claims by political and business officials against individual journalists and media outlets.
This chilling effect occurs as individuals are deterred from publishing items that they believe could even potentially cause issue for the powerful political parties of the United Malays National Organisation (UMNO) Malaysia and the People‘s Action Party (PAP) Singapore 33 .
III.
POLITICS OVER MEDIA ORGANISATIONS Malaysia and Singapore The strength of the PAP in Singapore and the UMNO in Malaysia , along with a concentration of media ownership (aligned with these parties), shows that revenue and business interests fall a close second to the political interests of the affluent politicians in both nations.
Although there might be relationships with editors and owners of publishing houses, the political power that the PAP and UMNO have over media organisations damages the credibility of that 31 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore, 135.
32 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore, 135.
33 Thio, (2010) ‗Soft Constitutional Law in Non Liberal Asian Constitutional Democracies‘, 8(4) International Journal of Constitutional Law 766-799.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 21 Volume 2(S) No.
1 (2015) media by overriding newsworthy items and appropriately balanced coverage 34 .
International press is not owned by the politicians; yet, it is closed monitored by the government through the PPPA and the NPPA.
The alignment of the judiciary, executive, and legislature through the strict controls over publication and access to media has led to a lack of ability for economic prosperity for those companies that do not align themselves with either the PAP or the UMNO.
This was apparent when the UMNO aligned The New Straits Times supported the government‘s prosecution of former Deputy Prime Minister (Ibrahim) on sodomy and corruption charges.
The Reformasi rejected this and subsequently had a massive fall in circulation 35 .The courts in both Singapore and Malaysia are concerned with the protection of the reputation of government figure, regardless of the effect on news reporting and commentary 36 .
Media practitioners in Singapore are aware of the threat of defamation cases and aware of what issues constitute sensitive topics and should be avoided—ASEAN, China, race, religion, PAP internal politics, PAP personalities, corruption, and government linked companies 37 .
Media practitioners in both Malaysia and Singapore were aware of defamation law.
However, most Singaporeans were not fully aware of their legal rights, nor did they have the resources available to them to successfully defend themselves against powerful political players 38 .
Malaysians and Singaporeans considered media and publishing as part of a whole institutional context; where freedom of the press is not a right but that publishing falls within a legislation and regulation, and managing these was simply part of the world of reporting and 34 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore, 135.
35 Ibid, 132.
36 Ibid, 135.
37 Ibid, 142.
38 Ibid, 142.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 22 Volume 2(S) No.
1 (2015) journalism 39 .
The media organisations are aware that there are many restrictions.
Thus, draft articles and stories that do not breach these restrictions, the deterrent nature of the legislation, and regulation imposed by Strong hold States being effective in quashing individualism or disagreement.
Consequently, companies align themselves with the political parties to ensure that they are successful and remain in circulation.
IV.
MEDIA ORGANISATIONS OVER POLITICS The United Kingdom (UK) and The United States of America (USA) In evaluating media organisation control in both of the UK and the USA, a focal corporation in place of a Strong hold State should be assessed.
NewsCorp (owned by Rupert Murdoch) allows for an effective assessment of the role that media organisations (conglomerates) negotiate political powers and what media is released to the public to benefit their economic goals 40 .
NewsCorp media reaches approximately 75% of the world‘s population over five continents with around $28 billion in annual revenue.
Their power over press freedoms and access to the media makes them may have no competitor.
In 2003, the 175 NewsCorp controlled newspapers supported Murdoch‘s personal stand for the invasion to Iraq; which was also supported by the Georg W Bush and Tony Blair (USA and UK leaders at the time) 41 .
Murdoch has used the NewsCorp publications to back those political policies that support the NewsCorp group.
The power of NewsCorp and the financial 39 Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore, 135.
40 Arsenault and Castells, (2008) ‗Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, 23(488), International Sociology, 489.
41 Ibid, 493.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 23 Volume 2(S) No.
1 (2015) dealings of the company mean that regulators are sometimes hesitant to enforce laws for fear of ramifications by NewsCorp publications 42 .
The power of NewsCorp throughout the UK, the USA, and Australia has led to a large interference with politics and election cycles.
This political leverage leads to the presentation of regulatory favours for NewsCorp entities and subsidiaries assisting with the growth of NewsCorp entities leading to more regulatory freedoms which increase the company and escalate its political influence 43 .
The political alliances made by NewsCorp are fickle.
It reflects the business and economic interests of NewsCorp rather than any deep seeded political affiliation; contradictory to the political power and business affiliation in both Singapore and Malaysia 44 .
NewsCorp has historically provided direct financial contributions to politicians and political parties (US$ 4.7 million between 1998 and 2007) 45 .
The media regulatory review generally coincides with the contributions from NewsCorp.
As in 2006, NewsCorp provided 10% of campaign contributions to Senator Ted Stevens, during which period Stevens was sponsoring a telecommunications bill that assisted with the NewsCorp business objectives.
Similarly, HarperCollins, a NewsCorp owned company has provided book deals to politicians who then supported media regulatory changes 46 .
NewsCorp has also been credited with shifting the outcome of the 1997 British Election of Tony Blair as prime minister—New Labour, when NewsCorp was historically Conservative and in support of Margaret Thatcher.
Shortly before the election, all NewsCorp print media outlets endorsed Tony Blair for the Prime Minister role; which he subsequently won.
New 42 Arsenault and Castells, (2008) ‗Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, 23(488), International Sociology, 496.
43 Ibid, 497.
44 Ibid, 497 45 Ibid, 497.
46 Ibid, 499.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 24 Volume 2(S) No.
1 (2015) Labour has a favourable position on media regulation in contrast with the more accountable stance of the Conservative party at the time 47 .
Increased revenue and market share have led to NewsCorp being able to gain regulatory favours from politicians via financial contributions to their campaigns 48 .
This increases the power had by media organisations (conglomerates) over politics, whilst still controlling access to media and press freedoms.
V. CONCLUSION Press Freedoms By analysing the presentation of legislation and political power in Malaysia and Singapore contrasted with economic powers in the UK and the USA; it is clear to see that regardless of who hold the power political parties or media organisation there appears to be an intrinsic link between the two.
This power and influence has led to restrictions being placed on what journalists and reporters publish and what is accessible by the masses.
Defamation Legislation Defamation legislation creates chilling effect in Malaysia and Singapore which means that the level of litigation is no longer high as journalists are self-censoring to minimise their risk of personally being taken to court.
It is important to note that although defamation legislation is not as restrictive; however, in the UK and the USA it does exist.
Wider understanding between general population, report of individual legal rights, and more accessible independent judiciaries allow for the appropriate application of defamation legislation taking into consideration notions of responsible journalism.
47 Arsenault and Castells, (2008) ‗Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis, 23(488) International Sociology, 500.
48 Ibid, 507.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 25 Volume 2(S) No.
1 (2015) It is fair to say that those restrictions and regulations present in Malaysia and Singapore as strong hold states are less plaintiff friendly and more intensive.
Nevertheless, it is clear that with the removal of this global media companies and their influences on political parties and policy, it regulates and restricts what is published in the media for access by the public.
REFERENCES Journals: Arsenault and Castells, (2008) ‗Switching Power: Rupert Murdoch and the Global Business of Media Politics: A Sociological Analysis‘ International Sociology.
Article 19 and Suaram, (2005) Freedom of Expression and the Media in Malaysia.
Randhawa et al, (2005) Freedom of Expression and the Media in Malaysia: Part of A Series of Baseline Studies on Seven South East Asian Countries.
Thio, (2010) ‗Soft Constitutional Law in Nonliberal Asian Constitutional Democracies‘ 8(4) International Journal of Constitutional Law.
Whiting and Majoribanks, (2013) ‗Media Professionals‘ Perceptions of Defamation and Other Constraints upon News Reporting in Malaysia and Singapore‘ Democracy, Media and Law in Malaysia and Singapore Laws: Constitution of Malaysia 1957 art X. Defamation Act 1957 (Malaysia) Defamation Act 1985 (Singapore) Defamation Act 2013 (UK) Newspaper and Printing Presses Act (rev, 2002 edition) (Singapore) Printing Presses and Publications Act 1984 (Malaysia) United States Constitution amend I.
Cases: Reynolds v Times Newspapers, Ltd. [2001] 2.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 26 Volume 2(S) No.
1 (2015) THE FREEDOM OF INFORMATION IN INDONESIA AND AUSTRALIA Jodie Partridge Law School, University of Wollongong Abstract Freedom of Information laws promote access to data held by government authorities in the public sector to mainstream society.
Such laws have been enacted on a global scale; however, the obedience they have attracted is not consistent amongst each geographical location.
Freedom of Information Laws has been enacted in Indonesia.
It was a scheme introduced in 2008 which included many different components that were to improve each individual’s right to communicate and obtain information for the purpose of developing themselves and their current political and social environment.
The adequacy of the Freedom of Information is a questionable notion in the grand scheme of Indonesia’s legal environment as its effectiveness and motives are rather questionable.
It has been acknowledged that this initiative is still developing on a national scale, which raises the main question, is 6 years long enough for a scheme to still be dubbed as ‘developing’?
This paper will analyse the advantageous and pitfalls of the legislative instrument ending with a comparative analysis with the current situation that Australia experiences.
Keywords: Freedom of Information, law, Indonesia, Australia I.
Introduction ―Every person has the right to communicate and to obtain information for the purpose of developing themselves and their social environment, and has the right to seek, obtain, possess, store, process and convey information through all available channels” 49 .
It is founded within this excerpt of Indonesia‘s Constitution, inserted as a result of the 2000 Bill of Rights that each citizen is inherently deserving of public information.
The insertion of this extract stems from the previous legislative landscape that Indonesia fell victim to, commonly referred to as the ‗New Order‘ 50 .
Within this period Indonesia was under the rule of Suharto, who constructed the 49 Undang-Undang Dasar Republik Indonesia 1945, UUD '45 (Indonesian Constitution).
50 Daniel S. Lev, ―Judicial Authority and the Struggle for an Indonesian Rechsstaat‖ (1978) 13Law & Soc‘y Rev.
37; Hans Thoolen, Indonesia and the Rule of Law: Twenty Years of ―New Order‖ Government: A Study (London: F. Pinter, 1987).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 27 Volume 2(S) No.
1 (2015) government to resemble a highly centralised group within a small political elite 51 , a highly corrupt group who did not perceive the ‗rule of law‘ to be a notion of any importance.
Whilst it appears that the FOI Act 52 is a remedy to the reformation of the corruption that existed, was this the most effective mechanism the government could enact?
Did the implementation of this instrument efficiently alter the clouded boundary that existed when citizens requested information regarding Indonesia‘s public bodies?
Within this article I will critically assess the implementation of the Freedom of Information Act 53 (―FOI‖) in Indonesia as well as comparatively analysing the rights afforded to those residing in Australia to determine the effectiveness of the government‘s response to the ‗New Era‘.
I will argue about the whole that whilst the reforms to date are perceived to be somewhat successful, there is a considerable, gaping hole in the legislative landscape that results in the denial of basic rights.
II.
LEGAL MATERIALS AND METHOD Research Method This paper applies document of legal instruments relating to freedom of information both in Indonesia and the rights afforded to those residing in Australia to determine the effectiveness of the government‘s response to the ‗New Era‘.
In particular, Indonesian Act Number 14 Year 2008 on Freedom of Information (2008 Freedom of Information Act) will be analyzed.
It will use juridical normative method and comparative study.
This paper will analyze the implementation 51 Ross McLeod, ―Soeharto‘s Indonesia: A Better Class of Corruption‖ (2000) 7(2) Agenda 99.
52 Freedom of Information Act 2008 (Undang Undang No.
14 Tahun2008 tentang Keterbukaan Informasi Publik) 53 Freedom of Information Act 2008 (Undang Undang No.
14 Tahun 2008tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 28 Volume 2(S) No.
1 (2015) of 2008 Freedom of Information Act.
Certain articles in mass media, as well as academic papers articles are also extensively used.
Legal Materials Legal materials applied in this paper include primary sources and secondary sources as well as tertiary sources, as follows: Primary sources include Indonesian Act number 14 Year 2008 on Freedom of Information Act, United Nation Declaration of Human Rights as well as Indonesian Constitution and relevant Australian legal material, Freedom of Information Act (No.3) 1982 (Cth).
Whereas secondary sources to support primary sources analyzes include explanatory section of Indonesian Act Number 14 Year 2008 on Freedom of Information, explanatory section of Indonesian Constitution as well as experts‘ opinion on relevant matters, relevant academic written paper and Annual Report gained from Central Information Commission of Republic of Indonesia.
III.
RESULT AND DISCUSSION Explanation of the Act As noted above, the driving force behind the FOI Act 54 is founded within the reign of Suharto under which corruption flourished, accountability and transparency were not present, and the rule of law was nothing but a myth.
The successor to Suharto put in motion reforms that would shape Indonesia‘s trajectory towards anti-corruption, such as, constitutional reforms, institutional independence of the judiciary from the government, commitments to anti-corruption court, and the most important being the enactment of the FOI Act 55 in 2008.
The blanket aim of the FOI law is founded within the notion of ‗national cohesion‘.
It declares that by providing 54 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 55 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 29 Volume 2(S) No.
1 (2015) heightened access to information the following goals will be achieved; ―the increase of the quality of community involvement in decision making, expedite the creation of an open government and encourage public bodies to be‖ 56 .
To understand the motive of this legislative instrument, the following Articles must be noted: Article 1(1) ‘information is broadly recognised as any information, statement, idea or sign that has value, meaning or a message that can be seen, heard or read’ 57 .
Article 1(2) ‘public information means information produced, stored, managed or received by a public body which concerns the public interest and either relates to the administration of the state or of another public body’ 58 .
Article 2(1) ‘all public information is to be open and accessible to users of public information which includes Indonesian citizens and legal entities, all citizens and entities possess the right to request, view, understand and obtain a copy of and distribute public information’ 59 To achieve the desired result as prescribed within the legislation, significant obligations are imposed upon all public bodies in order to encourage their compliance.
Such obligations include; the development of information and documentation systems to efficiently manage public information 60 , the creation of request processing systems and to employ staff to respond to requests 61 , and the publishing of six-monthly reports on activities, performance, financial data 56 Daniel S. Lev, above n2.
57 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 1(1) 58 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 1(2) 59 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(1) 60 Simon Butt, Freedom of Information Law and its Application in Indonesia: A Preliminary Assessment, (2014) ASJCL p 113-154.
61 Ibid.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 30 Volume 2(S) No.
1 (2015) and any other information that could threaten the necessities of life of the people and public order 62 .
The five central pillars are as follows: a.
Central Information Commission – as a means to ensure compliance with this law the Central Information Commission, an independent commission which operates conjunctively with provincial bodies, was created and attains the primary responsibilities of providing dispute resolution procedures.
b.
Dispute Resolution – The FOI Act 63 puts into place mechanisms for which the public can utilise if they fall victim to a denied request.
The process allows for a variety of avenues to be utilised including written reviews, voluntary mediation, public hearing by judicial bodies, and access to the general courts.
64 c. Exemptions – In accordance with Article 2(2) 65 , this legislative instrument does seek to limit the types of information that public bodies can keep secret.
The extent to which disclosure takes precedence over transparency relates to the way in which public bodies interpret the content of the law.
d. Harm Consequences Test – Article 2(4) of the FOI Law 66 establishes what has been labelled as the ‗Harm Test :Confidential by reason of statute, appropriateness and the public interest, based on an assessment of the consequences that will arise if the information is disclosed to the community and after considering whether denying access to that information could protect a greater interest than the interest in open access, or vice versa” 67 62 Ibid.
63 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 64 Simon, Butt, above n12.
65 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(2) 66 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(8) 67 Ibid.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 31 Volume 2(S) No.
1 (2015) e. Penalties – It is prescribed within this law that many criminal penalties are attached to offences such as, rejecting a legitimate request for information, falsifying or destroying public information and failure to provide required information as required within the sixmonthly report.
Such penalties are attributable to individual culprits or companies, a questionable deterrent to be explored.
Based upon the explanation provided of the legislative instrument, it is now time to analyse the Act and its implementation.
Did it fulfil the expectations of the government and adhere to maintaining the trajectory towards national cohesion?
Effectiveness of the Act In order to achieve efficiency, the measurement of this instruments effectiveness will take place with the analysis of certain criteria such as, time and cost effectiveness, precedents set by the Information Commission and an in-depth investigation of the components of the legislation.
While many of the criticisms hold considerable merit in the argument they put forth, do they in turn fail to recognise, on a larger scale, the overall evolution of Indonesia?
Time and Cost Effectiveness The implementation of this law occurred in 2008, its operation occurred fairly sporadically as it did not reach the stage of ‗functional‘ until 2011.
In accordance with Article 58 68 and Article 59 69 the Information Commission was to be established within one year of the laws implementation, which did not occur until 2010 and regional provincial commissions were to be established within two years.
However, to date only 20 out of 34 provinces currently attain this requirement 70 .
According to data obtained from the Central Information Commission, 68 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 58 69 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 59 70 Annual Report 2010, Central Information Commission of Republic of Indonesia, available at www.komisiinformasi.go.id> (last accessed 19 May 2014).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 32 Volume 2(S) No.
1 (2015) Information Officers were only appointed in the following industries, a condition prescribed by Article 13 71 : a.
25 of the 35 Ministries (74%) b.
29 of 129 State Institutions (22%) c. 14 of 33 provincial governments (42%) d. 53 of 399 county governments (13%) e. 17 of 98 city governments (17%) 72 The conclusion to be drawn from such statistics provides that slow compliance is currently an issue that is interfering with the success of the legislation, but who is at fault for this?
When assessing article 13(b) 73 it notes that all public bodies were to train and hire employees in order to handle requests for information, however how can such goals be achieved if no government funding, training or procedural guidelines have been developed?
It is through such negligence of government activity that an attitude of ‗non-compliance‘ has spread throughout the Indonesian community.
Precedents established by the Information Commission The performance of the Information Commission in establishing a precedent, and the degree of enforcement in which they are going to adopt has been a fairly developing aspect.
According to the Jakarta Post between 2010 and 2011 the Information Commission received 227 requests for information, however only 7 were attended to in a judicial manner and of those 7, only 2 losing parties have been required to comply with the Commission‘s ruling 74 .
A gradual 71 Annual Report 2012, Central Information Commission of Republic of Indonesia, available at <www.komisiinformasi.go.id> (last accessed 19 May 2014).
72 UU Keterbukaan Informasi Diabaikan‖, Hukumonline (26 May 2012), online: <www.hukumonline.com> (last accessed 30 October 2013).
73 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 13(b) 74 Warief Djajanto Basorie, ―Indonesia‘s Freedom of Information Laws, One Year On‖, TheJakarta Post (28 April 2011).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 33 Volume 2(S) No.
1 (2015) trend of compliance has been identified as, in accordance with the Commission‘s 2012 annual report, an approximate two thirds of the total 818 requests for information have been resolved 75 .
However, whilst a positive trend is depicted, does the way in which they approach them effectively embody the principles of the FOI Act 76 ?
Two fundamental elements of case law lay the foundation as to the general ability of the Information Commission, which are described as follows: 1.
‗An appeal against West Java Information Commission ordering the Mayor to provide three types of financial documents which due to the following reasons should not have been disclosed: a.
Comprehensive Report Documents are excluded information under the law and should not have been originally disclosed, b.
The report could not be released before obtaining permission, c. The third report should not have been requested from the Mayor, nor any information to be extracted from his office as it was not his responsibility to produce, store or manage such records‘ 77 .
2.
‗This was an appeal against the central Information Commission decision in the Medan Flood Control Case – The applicant has requested copies of contracts for goods and services.
The Ministry challenged the Commission‘s findings on the basis that the contract has a confidentiality clause and the other party to the contract refused permission for the document to be released.
The three grounds in which the Information Commission was incorrect on are: 75 Annual Report 2012, above n23.
76 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 77 Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 34/G/TUN/2012 PTUN-BDG); Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 64/G/TUN/2012 PTUN-BDG).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 34 Volume 2(S) No.
1 (2015) a.
The Ministry had an obligation to fulfil the contract as this contract had a confidentiality clause, they had an obligation to maintain it, b.
The court found that the commercial information contained in the contract was subject to copyright and therefore should not have been subject to disclosure, c. The Court relied on Article 11(1)(e) of the FOI law 78 which states that public bodies must provide information about contracts with third parties, however in this instance no third part was present and disclosure was therefore not required‘ 79 .
Whilst it is perceived that increased compliance with the act is a positive aspect which has been slowly generating since its inception, the manner in which it is correctly interpreted and enforced is highly questionable.
The apparent need for the Administrative Appeals Court to overturn the commission‘s original decisions allows for a degree of doubt as to what rights are actually being afforded to Indonesian citizens?
Analysis of the Acts Components The imperative component to this text analysis is determining whether the components of the act effectively provide an avenue to the ‗Freedom of Information‘ or if this is merely an instrument to evade further global scrutiny.
In accordance with the Association of the Rule of Law, ‗The scope of Indonesia‘s Law on Public Information Transparency was a compromise between the government and civil society.
The government did not want to bring State Owned Enterprises within the scope of the law however, civil society organisations demanded it.
The result was a compromise where such 78 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 11(1)(e) 79 Public Works Ministry v. Antoni Fernando (Jakarta Administrative Court Decision 102/G/2012/PTUNJKT).
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 35 Volume 2(S) No.
1 (2015) enterprises were required to disclose limited classes of information‘ 80 .
Although it appears that a compromise was an effective response, critics argue that an abundance of information is left undisclosed, for example ‗it does not require disclosure of information related to the contract actually awarded nor is there any disclosure of information that would allow the public to evaluate its performance, such as statistics concerning output‘ 81 .
A vital component of the FOI Law 82 is the ‗harm test‘ which provides public bodies with the authority to deny information on a variety of bases.
The legal foundation for such power is founded within Article 6 83 as it is declared that ‗public bodies have the right to refuse to provide information that is ‗excluded by‘ or ‗does not accord‘ with ‗written laws‘, which are any form of government law, from statutes through to regulations, presidential instructions, ministerial decrees and circulars and local parliament by-laws 84 .
To follow on from this avenue of exemption, Article 2(4) 85 establishes a proportionality test, where the public-interest in disclosure is balanced against the impending harm that disclosure might bring from a plain reading of the legislature.
It appears that if the information officer believes the admission of particular information will be more detrimental to the public interest than advantageous, then disclosure can be repudiated 86 .
It is viewed that Article 2(4) 87 has the potential to expand ‗excluded information‘ beyond the categories already specified within Articles 17 88 and 6(3) 89 .
Through this possibility it is therefore inherently possible that any information could be subjectively categorised as more harmful if released or against the public interest.
The pitfall of 80 Angela Migally, Freedom of Information: A Cornerstone of Democratic Transition (2013) p20 – 21.
81 Ibid.
82 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 83 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 6 84 Ibid.
85 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(4) 86 Ibid.
87 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 2(4) 88 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 17 89 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 6(3) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 36 Volume 2(S) No.
1 (2015) this provides public bodies with the ability to individually decipher whether the avoidance of disclosure is a more appropriate response, meaning a debate between their motives and the public‘s rights has the potential to never result in the latter.
Another component targeted by critics is the legislature‘s inability to provide a definition of a ‗public body‘.
According to a professor of Gadjah Mada University, the characterisation afforded to a ‗public body‘ is too broad and causes obscurity when classifying between public and private entities 90 .
This acts as a fundamental weakness as many entities have the ability to evade their obligations by claiming they do not possess the characteristics of a public body and no obligation to respond to information requests.
An example of this is founded within the report of the Association of the Rule of Law which notes that the lack of transparency within private entities is a contributory factor to many human rights breaches, resulting in the recommendation for the release of all legal, financial and auditing reports for companies, cooperatives and military based entities 91 .
Further aspects of the legislature that have fallen under scrutiny although are not as vital as the abovementioned components are: 1.
The inability of wholly deterrent penalties to be prescribed within Article 52 and 53 of the FOI Act 92 .
The most effective element of the penalties under this instrument are its ability to target individuals who intentionally evade their obligations, however such a positive element is overshadowed by the inability of the Information Commission to issue penalties, and the minimal financial burden it can place on public bodies; and 90 Adistra Kusuma Waligalit, Legal Proposition on the Public Freedom of Information in Indonesia (2013) Faculty of Law of Gadjah Mada University p 1 – 7.
91 Angela Migally, above n32.
92 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) 52, 53 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 37 Volume 2(S) No.
1 (2015) 2.
There have been many instances in which the Information Commission has not responded to an individual‘s appeal within the specified timeframe and therefore do not afford elements of procedural fairness to all parties 93 .
It is through such elements of analysis that I will now be in a position to provide an overall evaluation of this instrument.
Evaluation of the Act As noted by the multiple critics, the evolution towards ‗freedom of information‘ in Indonesia has been a slow and moderate journey.
Whilst advances are evidenced in terms of providing a trajectory towards the rule of law and the recognition of fundamental human rights, the elements of accountability and transparency are yet to be achieved.
After an assessment of the components of the act and the precedents that have failed to be followed by the Information Commission, Indonesia is yet to reach the pinnacle of providing an effective response to the demand for Information.
To strengthen the inadequacies of Indonesia‘s response to this issue, I will now undertake a brief comparative analysis between the rights afforded to Australian citizens as opposed to those of Indonesia.
Comparative Analysis between the rights afforded to Australian and Indonesian citizens According to the United Nations Educational, Scientific and Cultural Organisation, as a response to global demands Australia developed and enforced their national FOI Law 94 as early as 1982 95 .
The Australian Government enacted this legislation with the motive of providing citizens with an insight as to policy making, administrative decision making, government service 93 No 144/KMA/SK VIII/2007 on Disclosure of Information in Court.
94 Freedom of Information Act (No.
3) 1982 (Cth) 95 Freedom of Information in Asia Pacific (2013) United Nations Educational, Scientific and Cultural Organisation: Communication and Information Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 38 Volume 2(S) No.
1 (2015) delivery and the ability to search and modify all records that attain personal information 96 .
The most notable differences, bar the initial motives and time of implementation of the legislature, between the Australian and Indonesian landscapes are, the Australian Government seeks to actively and regularly promote awareness of FOI opportunities, they regularly audit on an internal and external basis their ability to fulfil their obligations as per their legislative requirements, both public and private entities are susceptible to the FOI Law 97 and the Australian government maintains a heightened level of compliance to the legislative instrument by frequently providing information and procedural guidelines to both public and private entities.
An example of the level of adherence and importance the Australian government provides to the freedom of information is founded within their yearly audit submitted to Parliament titled ‗Review of Freedom of Information Legislation‘ 98 which includes statistics, data and ideas of reform in order to provide each citizen with the level of rights they are entitled to.
It is through this comparative analysis that the words ‗transparency‘ ‗accountability‘ and ‗national cohesion‘ cannot straightforwardly be applied to the Indonesian Government and the manner in which they address the ‗freedom of information‘.
IV.
CONCLUSION The beginning of this text included a quote founded within the Indonesian Constitution that acknowledged the basic right that each citizen is deserving of, but when taking into account the evidence provided and the above analysis, the question of whether the Constitution is being wholly fulfilled arises.
On a general note it is indisputable that the legal landscape of Indonesia 96 Ibid.
97 Freedom of Information Act (No.
3) 1982 (Cth) 98 John McMillan and James Popple, Review of Freedom of Information Legislation (2012) Office of the Australian Information Commissioner p 47.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 39 Volume 2(S) No.
1 (2015) has improved significantly since the inception of the FOI Act in 2008 99 .
To an extent it has established a degree of press freedom and has acted as a component to remedy the damage caused by the ‗New Order‘.
However, its effectiveness is significantly queried.
In my opinion and based upon the above opinions of various criticisms, the notion of ‗freedom of information‘ in Indonesia is yet to be achieved on a scale that embodies principles of accountability and transparency.
Summarily the implementation of this instrument did not efficiently alter the clouded boundary that exists when citizens attempt to obtain information regarding Indonesia‘s government, public bodies or personal items.
REFERENCES Articles/Books/Journals Basorie, Warief Djajanto ―Indonesia‘s Freedom of Information Laws, One Year On‖, The Jakarta Post (28 April 2011) Butt.
Simon, Freedom of Information Law and its Application in Indonesia: A Preliminary Assessment, (2014) ASJCL p 113-154 Lev, Daniel ―Judicial Authority and the Struggle for an Indonesian Rechsstaat‖ (1978) 13 Law & Soc‘y Rev.
37; Hans Thoolen, Indonesia and the Rule of Law: Twenty Years of ―New Order‖ Government: A Study (London: F. Pinter, 1987) McLeod, Ross ―Soeharto‘s Indonesia: A Better Class of Corruption‖ (2000) 7(2) Agenda 99 McMillan, John and Popple, James, Review of Freedom of Information Legislation (2012) Office of the Australian Information Commissioner p 47 Migally, Angela.
Freedom of Information: A Cornerstone of Democratic Transition (2013) p20 – 21 UU Keterbukaan Informasi Diabaikan, Hukumonline (26 May 2012), online: www.hukumonline.com (last accessed 30 October 2013) 99 Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) http://www.hukumonline.com/ Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 40 Volume 2(S) No.
1 (2015) Waligalit, Adistra Kusuma Legal Proposition on the Public Freedom of Information in Indonesia (2013) Faculty of Law of Gadjah Mada University p 1 – 7 Cases Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 34/G/TUN/2012 PTUNBDG); Bogor Mayor v. Hidayat (Bandung Administrative Court Decision 64/G/TUN/2012 PTUN-BDG).
Public Works Ministry v. Antoni Fernando (Jakarta Administrative Court Decision 102/G/2012/PTUN-JKT).
Legislation Freedom of Information Act 2008 (UU No.
14 Tahun 2008 tentang Keterbukaan Informasi Publik) Freedom of Information Act (No.
3) 1982 (Cth) Other Undang-Undang Dasar Republik Indonesia 1945, UUD '45 (Indonesian Constitution) Annual Report 2012, Central Information Commission of Republic of Indonesia, available at <www.komisiinformasi.go.id> (last accessed 19 May 2014).
Annual Report 2010, Central Information Commission of Republic of Indonesia, available at www.komisiinformasi.go.id> (last accessed 19 May 2014).
No 144/KMA/SK VIII/2007 on Disclosure of Information in Court.
Freedom of Information in Asia Pacific (2013) United Nations Educational, Scientific and Cultural Organisation: Communication and Information Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 41 Volume 2(S) No.
1 (2015) GOVERNMENTAL CONTROL OR BIG COMPANY CONTROL IN AUSTRALIA ON JOURNALISTIC PRACTICE: WHICH IS WORSE AND WHERE ARE THE PARALLELS?
Elizabeth Sinclair Law School, University of Wollongong Abstract Restricted media freedom often happens in Asian States.
Malaysia and Singapore, for instance, have experienced restriction on media freedom due to a number of reasons, which include democratic type of the state itself and the nature of government.
While Malaysia and Singapore democratic pattern tend to adopt what so-called ‘pseudo-democratic’, the freedom of media is mostly control by the government.
This condition is different to those countries with ‘establisheddemocratic’ such as Australia.
Although government control in media freedom is less, however, big companies seem to have more control in media freedom.
In this paper, it will be examined as to which is worse; blatant government intervention resulting in journalist self-monitoring 100 or big company ownership in prominent media publications resulting in bias and ill-informed, illbalanced pieces.
It will also be concluded as to whether the restrictions imposed upon journalists in Singapore and Malaysia are only evident in these two countries, or whether journalists in other countries, including ‘more’ developed nations also practice self-monitoring.
Keywords: Media Freedom, Pseudo-Democratic, Established-Democratic, I.
INTRODUCTION Amanda Whiting and Timothy Marjoribanks argued in their chapter Media professional’s perceptions of defamation and other constraints upon news reporting in Malaysia and Singapore 101 that Malaysia and Singapore experience, due to a number of factors, restricted media freedom many of these factors relating to the semi-democratic nature of Malaysian and Singaporean government.
This being, that there is still an element of autocratic control exerted by the government on media publications and that this is supported by the rigid court system 100 Ibid.
101 Amanda Whiting and Timothy Marjoribanks, ‗Media Professionals' Perceptions of Defamation and other Constraints upon News Reporting in Malaysia and Singapore‘ in Andrew Kenyon, Tim Marjoribanks, Amanda Whiting (eds.)
Democracy, Media and Law in Malaysia and Singapore (Routledge, London, 2013), 129-156.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 42 Volume 2(S) No.
1 (2015) which has been generous and stringent in its awarding of damages in defamation suits brought by individuals against journalists.
Whiting and Marjoribanks define the system in saying that: ‗Both Singapore and Malaysia are best described as illiberal regimes, semior pseudo-democracies, where the media is controlled or curtailed by state laws, policies and practices directed to limiting, rather than protecting, a space for democratic discourse.‘ 102 In their argument, they have inadvertently (or perhaps advertently depending on personal view, economic view and political context) depicted that this problem is inherent in Malaysia and Singapore because of its semi-democratic nature and that media restrictions of this nature are mostly prolific in pseudo-democracies, or that such democratic systems are conducive to restricted media freedom.
They have argued that these problems are unique to Singapore and Malaysia.
It could, however, be argued that many ‗first world‘ or ‗fully established‘ democracies experience similar problems in media reporting and that these problems are not centralised to these two countries or other semi-autocratic democracies.
This paper looks to establish whether such a statement could be supported, in that a first world democracy such as Australia could be paralleled in its journalistic restrictions or non-freedom.
An important distinction, however, must be made immediately: countries such as Malaysia and Singapore suffer from media restrictions as a result of blatant government control, subsequently also receiving labels such as ‗pseudodemocracy‘.
Other democracies in the first world – Australia, the UK and the USA for example, do not have such ‗blatant‘ government intervention.
Instead, the media restrictions in these nations are a result of big company influence and intervention.
In this paper it will be examined 102 Ibid, 131.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 43 Volume 2(S) No.
1 (2015) as to which is worse; blatant government intervention resulting in journalist self-monitoring 103 or big company ownership in prominent media publications resulting in bias and ill-informed, illbalanced pieces.
In this instance, Australia will be exemplified.
Subsequently, it will be concluded as to whether the restrictions imposed upon journalists in Singapore and Malaysia as reported upon by Whiting and Marjoribanks are only evident in these two countries, or whether journalists in other countries, including ‗more‘ developed nations also practice self-monitoring.
Although it would be prudent to also look at ‗less established‘ or third world democracies in this argument to established a wider field of research, it would be unlikely to enlighten the argument.
Third world and establishing democracies have an almost cemented media problem.
104 Stating as such in this argument would only serve to point out the obvious.
Therefore, Australia will be used as a point of comparison.
This will aid in concluding whether Malaysia and Singapore truly do experience these problems in a unique way, or whether some problems are not unique to pseudo-democracies at all.
Through further research of media standards in Australia, it will be possible to conclude whether these media-based problems are only synonymous to the situations in Malaysia and Singapore, or whether commentary on this topic of restriction in media reporting and journalist self-monitoring should be extended to include other first world democracies in the discussion, and that Malaysia and Singapore should not be identified as unique.
II.
MATERIALS AND METHOD This paper applies legal instruments relating to journalist restriction in different type of democracy countries.
The comparative study was conducted in analyzing state-practice 103 Ibid.
104 Cultural Survival, Inc. Media Autonomy in the Third World, Cultural Survival, February 2010, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world viewed 28 May 2014. http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 44 Volume 2(S) No.
1 (2015) restrictions on media freedom, in ‗pseudo-democratic‘ state, such as Malaysia and Singapore and in ‗establish-democratic‘ state, such as Australia.
It looks at the implementation on how such states control media freedom.
Certain articles in mass media, as well as academic papers articles are also extensively used.
The comparative analyses will make crucial contribution on which one is better in protecting freedom of media.
Furthermore, legal materials applied in this paper include primary sources and secondary sources as well as tertiary sources relating to freedom of media and democracy.
Since this paper focuses more on state-practice, it is the practice of states mentioned will be frequently discussed.
III.
RESULT AND DISCUSSIONS Journalistic Facts in Malaysia, Singapore and Australia As stated above, there is an extremely important distinction that needs to be made and understood in regards to this argument: in Malaysia and Singapore, journalistic problems occur because of governmental pressure; whilst in Australia it is ‗big companies‘ who are applying the pressure.
An important notion in this paper is to explore which is worse, or perhaps reveal that they are equally as bad in promoting (and restricting) journalistic freedom.
In Australia, two media outlets shall be exemplified; News Corp Australia, which is owned by Rupert Murdoch and controls 70% of all newspapers circulated in Australia (and owns 23%-33% of all printed media sources in the country) and Fairfax Media.
105 One can see from these facts that Murdoch and his empire will be an important point of focus in this paper.
News Corp Australia is evidently a big business that wields political power in Australia.
The second media outlet that will be considered in this paper is Fairfax Media.
Fairfax Media is the second largest media 105 Terry Flew, FactCheck: does Murdoch own 70% of newspapers in Australia?,The Conversation, 8 August 2013 http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 viewed 26 May 2014. http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 45 Volume 2(S) No.
1 (2015) outlet in Australia.
The largest shareholder in Fairfax Media is mining magnate Gina Rinehart who owns the absolute maximum amount of shares possible before a takeover bid must be offered.
106 These two media outlets have a huge monopoly on the news publications distributed throughout the company.
These two media outlets serve as prime examples in exploring big business influence in the media in Australia, as opposed to governmental influence (even though the line between the two is arguably just as blurred in Australia as Whiting and Marjoribanks argue is the case in Malaysia and Singapore 107 ).
The newspapers (as opposed to magazines or other news mediums) printed by these outlets will be the focus of this paper, as Whiting and Marjoribanks refer only to print media in regards to their assessment of media control in their chapter – reference to online media is only made in regards to the fact that it is not as tightly regulated due to the fluid and uncontrollable nature of the system and, therefore, is mostly free of these constrictions.
This was exemplified through their examination of the career of Marina Mahathir who wrote for the Malaysian newspaper The Star 108 and was further expounded upon in great detail by Cherian George in his book, Contentious Journalism and the Internet: Towards Democratic Discourse in Malaysia and Singapore.
109 This notion of less restrictive practice in online journalism, blogs especially, is mostly a global (with exceptions) observation.
In returning to the importance of print media in this paper, David McKnight is his book Rupert Murdoch: An Investigation of Political Power 110 emphasises the importance of print media by stating that, 106 Kirsty Simpson, Gina Rinehart lifts stake in Fairfax to 15% as pressure for board seats builds, The Sydney Morning Herald, June 5 2012, http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-aspressure-for-board-seats-builds-20120614-20d5n.html viewed 26 May 2014.
107 Whiting and Marjoribanks, above n 2.
108 Ibid, 132.
109 Cherian George, Contentious Journalism and the Internet, Towards Democratic Discourse in Malaysia and Singapore, (Singapore University Press, 2006).
110 David McKnight, Rupert Murdoch: An Investigation of Political Power, (Allen &Unwin, 2012).
http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 46 Volume 2(S) No.
1 (2015) ‗In an age when newspapers are in decline, do such [media] control matter?
The answer is yes.
They set the political agenda for radio, television and online news.
Newspapers achieve the agenda-setting role because they have the biggest newsrooms and every day they originate far more stories than any other news medium.‘ 111 This excerpt supports the importance of considering print media throughout the argument in this paper and emphasises why Whiting and Marjoribanks have done so in their chapter.
The question is now to look at how big company control of these newspapers in Australia, an ‗established‘ democracy, affects journalistic practice and whether parallels can be established between democratic media practice in Australia and the restrictions placed on journalists by government in ‗pseudo-democratic‘ Malaysia and Singapore.
In his book The Politics of Information: Problems of Policy in Modern Media 112 Anthony Smith states that, ‗…in [western media‘s] broadest context, we are seeing a single complex of institutions, private, public and mixed, evolving in modern societies as mediators of information and entertainment, mutually dependant, mutually abrasive, with functional overlaps and newly emerging demarcations.
This is thus a kind of culturalinformational complex growing at the heart of modern societies, which does not in itself spell any kind of doom but which profoundly alters the way in which we should think about the role of the government and the press.‘ 113 He continues on to comment on the notion of objectivity in western media, and touches upon one of the important notions in the paper; that of the difficulty of achieving journalistic 111 Ibid, 7-8.
112 Anthony Smith, The Politics of Information: Problems of Policy in Modern Media, (The Macmillan Press Ltd, 1978).
113 Ibid, 159.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 47 Volume 2(S) No.
1 (2015) objectivity in light of the now numerous factors which have to be considered in modern media.
In Malaysia and Singapore, journalists are subjected to the added pressures applied by the government in regards to preserving the reputation of government officials/party politics and the stringent application of defamation damages by the courts, whilst in Australia we see major newspapers, such as The Daily Telegraph running front pages such as ‗Australia Needs Tony‘ 114 or ‗Kick This Mob Out‘ 115 which are evidently a reflection of media tycoon Rupert Murdoch‘s political ‗muscle flexing,‘ and touches on a wider issue in western media, that journalists are subjected to the commercial pressures of their editors.
116 Smith states that, ‗…we speak of being objective as of a technique, sometimes as a glorious goal, occasionally as an external purpose which the journalist is supposed to serve… Each sliver of the infinity of reality at which the reporter thrusts his attention reaches the reader through the haze of motives and intentions – those of journalist, subject, editor, censor, printer, government – which are all the more insistent for being less evident.‘ 117 Political Influences From the above explanation, it can be seen that western societies suffer similar governmental problems as is identified by Whiting and Marjoribanks, although it is unlikely that these are to a similar extent as is evident in Malaysia and Singapore.
Whiting and Marjoribanks note that journalists in Malaysia and Singapore are often so restricted by self-monitoring that many stories are disregarded from the outset.
118 Media in Australia is clearly less restricted and more open for debate.
Indeed, when the ‗Australia Needs Tony‘ headline ran, Deputy Leader of 114 Jeannette McMahon, Political front page causes a stir, ABC, 2 September 2013, http://www.abc.net.au/local/stories/2013/09/02/3838874.htm viewed 26 May 2014.
115 Roy Greenslade, ‘Kick this mob out’: Murdoch flexes his election muscle from day one, The Guardian, 5 August 2013, http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia viewed 27 May 2014.
116 Ibid.
117 Smith, above n 11, 179.
118 Whiting and Marjoribanks, above n 1, 140. http://www.abc.net.au/local/stories/2013/09/02/3838874.htm http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 48 Volume 2(S) No.
1 (2015) the Labour Party stated that front page was an ―absolute disgrace.‖ 119 The media environment in Australia is considerably more open for political debate with journalists and commentators such as Andrew Bolt having no qualms about attacking government officials.
120 However, Smith does identify more similarities between the issues identified by Whiting and Majoribanks and problems facing western media in that ‗the issues which confront journalism in the twentieth century which transmutes it stage by stage into different forms, is whom the journalists is to represent.‘ 121 This point is crucial.
The issue of whom the journalist is to represent transcends all democratic/autocratic boundaries.
Journalists in Malaysia and Singapore are extremely mindful of who they are to represent in the press, as are journalists in western democracies, including Australia.
Indeed, editors for News Corp Ltd who have fundamental ideological differences with that of Murdoch and his greater agenda have found their ‗tenure unceremoniously cut short in recent years.‘ 122 The parties who apply pressure in Malaysia/Singapore and Australia may be different, but the ideology of being subjected to distracting outside pressures is the same.
Because of this notion it is at this point in the paper where one can distinguish which is worse, governmental control on journalistic freedom in Malaysia and Singapore or big company control on journalistic freedom in Australia.
Here the crux of the issue will be discussed.
The Parallels Clearly, as noted above, there are parallels between the journalistic pressures experienced by journalists in Malaysia and Singapore and journalists in Australia.
However, although 119 Bianca Hall, Sunday papers unite behind Coalition, The Sydney Morning Herald, September 1 2013, http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-201309012sye9.html viewed 26 May 2014.
120 Andrew Bolt, Deceit and conceit of Prime Minister Julia Gillard’s latest blue, The Herald Sun, June 12, 2013, http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latestblue/story-fni0ffxg-1226662729427 viewed 25 May 2014.
121 Smith, above n 11, 196.
122 Margaret Simons, Has Sydney’s Daily Telegraph lost touch with its readers?,The Guardian, 28 May 2014, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world viewed 28 May 2014. http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 49 Volume 2(S) No.
1 (2015) journalists in Australia and other western democracies may be subjected to political and corporate pressure, the fundamental ideology of ‗free‘ Australian government as opposed to the semi-autocratic nature of Malaysian and Singaporean government, which maintains a monopolist control on many aspects of society, means that the journalistic pressures in Malaysia and Singapore are certainly more severe and restrictive, and therefore worse than journalistic pressures in Australia.
Although the point of this paper has been to demonstrate that it is not simply ‗pseudo‘ democracies that experience journalist self-monitoring and that this problem is clearly evident in western democracies (also to a large extent), it cannot be denied that Malaysia and Singapore suffer a unique problem.
These problems are largely dealt with by Whiting and Majoribanks and are clearly unique.
Although media outlets such as News Corp Ltd and Fairfax Media in Australia have questionable political ties through their ownership, Whiting and Marjoribanks state that ‗In both countries (Malaysia and Singapore) all major domestic print and broadcast media are owned by organizations that are themselves controlled by, or closely linked to and favourable towards, government policies and governing political parties.‘ 123 Here we see that government ownership is considerably more blatant and transparent in Malaysia and Singapore than in Australia.
The licensing system 124 for publication in Malaysia and Singapore also transcends this debate to show that media restrictions in Malaysia and Singapore are considerably worse.
Furthermore, the simple banning of international press publications in Malaysia and Singapore shows the inherent problems facing the dispersal on information in these countries.
125 The issue of defamation as addressed by Whiting and Marjoribanks solidifies the conclusion that in considering which is worse, governmental control in Malaysian and 123 Whiting and Marjoribanks, above n 1, 131.
124 Ibid, 132.
125 Ibid.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 50 Volume 2(S) No.
1 (2015) Singaporean media or big company control in Australian media, journalists in Malaysia and Singapore face a considerably tougher challenge, and that balanced media representation in these two countries is limited.
The awarding of damages for defamation cases brought to the courts against journalists in Malaysia and Singapore is unprecedented and acts as a huge barrier in journalistic freedom.
This problem is not present in Australia.
Indeed, achieving a successful suit against Andrew Bolt‘s incredibly racist remarks against light-skinned aboriginals was a difficult task.
126 In Malaysia and Singapore, defamation is at the forefront of journalist inability to report in a broad and balanced manner.
No leader of the PAP in Singapore has ever lost a defamation case against an opposition leader and no foreign publisher has ever successfully defended a defamation suit brought against them.
127 Unlike in Australia, where the publishing of sensitive topics is likely to bring greater readership, in Malaysia and Singapore there is a huge array of topics that are off limits; relations with ASEAN states, China, race, religion, internal politics, political personalities, corruption and government linked companies.
128 One can see from this list that there are not many topics of substance left to report on.
Although being berated over the phone is more likely than being sued in modern times, the real threat of becoming bankrupt defending a defamation suit in Malaysia and Singapore is a real problem that affects the role of journalism in Malaysia and Singapore.
129 Although it is clear that there are some parallels on the issue of journalistic pressure in Malaysia/Singapore and Australia, it is also evident that in a discussion of which side faces more severe pressure the answer must be Malaysia and Singapore.
This is concluded from what is 126 ABC, Bolt breached discrimination act, judge rules, ABC, 29 September 2011, http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 viewed 27 May 2014.
127 Whiting and Marjoribanks, above n 1, 136.
128 Ibid, 142.
129 Ibid.
http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 51 Volume 2(S) No.
1 (2015) outlined above, but also in light of notions such as that the Australian media is clearly more open to political debate and when bias becomes too extreme, there is the ability for media inquiries.
Mr Ray Finkelstein QC conducted such a media inquiry in 2011.
130 Such liberty is not afforded to journalists in Malaysia and Singapore, and one can see that the Australian government has taken a priority in making the media and its agenda transparent.
IV.
CONCLUSION The media has never been considered a clear, objective source of topics; particularly not political topics.
One must take news sources, especially newspapers articles, with a grain of salt.
All journalists are subjected to workplace pressures.
However, obviously political circumstances and media environments vary between nations.
It cannot be denied that journalists in Malaysia and Singapore, as is made evident by Whiting and Marjoribanks, are subjected to severe cases of self monitoring, and it is further evident that Malaysia and Singapore certainly have unique problems in regards to the ease of the courts awarding damages for defamation, and the social and cultural norms in these societies have certainly accepted these court cases as a normal aspect of media reporting.
As was stated at the opening of this paper, Whiting and Majoribanks have depicted Malaysia and Singapore as being unique in their journalistic problems and as having unique aspects in regards to the problems faced in regards to media reporting and restrictions on the media.
It must be concluded that some of these problems are unique and some of these are not unique and should not be depicted as such.
It is not necessarily that pseudo-democracies are alone in experiencing these problems, Australia also faces journalistic self-monitoring and a biased media pool, however, Malaysia and Singapore clearly suffer greater restrictions.
In 130 Mr Ray Finkelstein, QC, Independent Media Inquiry report, 14 September 2011, Australian Government, Department of Broadband, Communications and the Digital Economy, http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry viewed 26 May 2014. http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 52 Volume 2(S) No.
1 (2015) regards to the argument of which is worse, governmental control on the media in Malaysia and Singapore or big company control on the media in Australia, it is clear that blatant government control, in light of the chapter by Whiting and Marjoribanks is considerably worse.
REFERENCES ABC, Bolt breached discrimination act, judge rules, ABC, 29 September 2011, http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discriminationact/3025918 Andrew Bolt, Deceit and conceit of Prime Minister Julia Gillard’s latest blue, The Herald Sun, June 12, 2013, http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-ofprime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 Cultural Survival, Inc. Media Autonomy in the Third World, Cultural Survival, February 2010, http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/mediaautonomy-third-world Mr Ray Finkelstein, QC, Independent Media Inquiry report, 14 September 2011, Australian Government, Department of Broadband, Communications and the Digital Economy, http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry Terry Flew, FactCheck: does Murdoch own 70% of newspapers in Australia?,The Conversation, 8 August 2013 http://theconversation.com/factcheck-does-murdoch-own-70-ofnewspapers-in-australia-16812 Cherian George, Contentious Journalism and the Internet, Towards Democratic Discourse in Malaysia and Singapore, (Singapore University Press, 2006) Roy Greenslade, ‘Kick this mob out’: Murdoch flexes his election muscle from day one, The Guardian, 5 August 2013, http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-electionaustralia Bianca Hall, Sunday papers unite behind Coalition, The Sydney Morning Herald, September 1 2013, http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papersunite-behind-coalition-20130901-2sye9.html David McKnight, Rupert Murdoch: An Investigation of Political Power, (Allen & Unwin, 2012) Jeannette McMahon, Political front page causes a stir, ABC, 2 September 2013, http://www.abc.net.au/local/stories/2013/09/02/3838874.html http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 http://www.abc.net.au/news/2011-09-28/bolt-found-guilty-of-breaching-discrimination-act/3025918 http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.heraldsun.com.au/news/opinion/deceit-the-biggest-conceit-of-prime-minister-julia-gillards-latest-blue/story-fni0ffxg-1226662729427 http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.archive.dbcde.gov.au/2013/august/independent_media_inquiry http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 http://theconversation.com/factcheck-does-murdoch-own-70-of-newspapers-in-australia-16812 http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia http://www.theguardian.com/commentisfree/2013/aug/05/daily-telegraph-election-australia http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.smh.com.au/federal-politics/federal-election-2013/sunday-papers-unite-behind-coalition-20130901-2sye9.html http://www.abc.net.au/local/stories/2013/09/02/3838874.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 53 Volume 2(S) No.
1 (2015) Anthony Smith, The Politics of Information: Problems of Policy in Modern Media, (The Macmillan Press Ltd, 1978) Margaret Simons, Has Sydney’s Daily Telegraph lost touch with its readers?,The Guardian, 28 May 2014, http://www.culturalsurvival.org/publications/cultural-survivalquarterly/brunei/media-autonomy-third-world Kirsty Simpson, Gina Rinehart lifts stake in Fairfax to 15% as pressure for board seats builds, The Sydney Morning Herald, June 5 2012, http://www.smh.com.au/national/ginarinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-2012061420d5n.html Amanda Whiting and Timothy Marjoribanks, ‗Media Professionals' Perceptions of Defamation and other Constraints upon News Reporting in Malaysia and Singapore‘ in Andrew Kenyon, Tim Marjoribanks, Amanda Whiting (eds.)
Democracy, Media and Law in Malaysia and Singapore (Routledge, London, 2013), 129-156 http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.culturalsurvival.org/publications/cultural-survival-quarterly/brunei/media-autonomy-third-world http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html http://www.smh.com.au/national/gina-rinehart-lifts-stake-in-fairfax-to-15-as-pressure-for-board-seats-builds-20120614-20d5n.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 54 Volume 2(S) No.
1 (2015) COUNTER-TERRORISM IN INDONESIA Jordan Sebastian Meliala 131 Faculty of Law Brawijaya University Abstract Since the incident of the World Trade Center (WTC) in USA, Indonesia has become an easy target for the next terrorism.
Counterterrorist campaigns can be undertaken by military and paramilitary forces.
Counterterrorism refers to proactive policies that specifically seek to eliminate terrorist environments and groups, Regardless of which policy is selected, the ultimate goal of counterterrorism is clear: to save lives by proactively preventing or decreasing the number of terrorist attacks.
But, so far the Government of Indonesia is only able to capture the terrorists, but is unable to eradicate terrorism.
Therefore, the government of Indonesia still needs a comprehensive ways to counter terrorism in Indonesia.
I.
INTRODUCTION Terrorism is coordinating attacks aimed to generate the feeling of terror against a group of people.
Unlike the war, acts of terrorism are not obeyed to the procedures of warfare such as execution time is always a sudden, random target and victims are often civilians 132 .
Terrorism, however defined, has always challenged the stability of societies and the peace of mind of everyday people.
Defining terrorism has been greatly debated and written about for decades.
Countless books have entire chapters dedicated to this topic.
There are three of the more commonly cited definitions come from the FBI, the U.S. Department of state, and the U.S. Department of Defense, and they are outlined here.
131 The writer is a student at faculty of Law, Brawijaya University.
Email address at Jordan.meliala@aiesec.net.
132 Maslathif Dwi Purnomo, Violence, Extremism and Terrorism in Indonesia: A Case study of Terrorism acts in Indonesia during 2000 until 2011‘, 2012, 34, IACSIT Press, 74 mailto:Jordan.meliala@aiesec.net Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 55 Volume 2(S) No.
1 (2015) The FBI defines terrorism as ―the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.
133 The U.S. Ministry Of Foreign Affairs defines terrorism as ―an activity, directed against persons involving violent acts or acts dangerous to human life which would be a criminal violation if committed within the jurisdiction of the U.S and is intended to intimidate or coerce a civilian population to influence the policy of a government by intimidation or coercion or to affect the conduct of government by assassination or kidnapping‖.
134 The Department of Defense defines terrorism as ―the calculated use of violence or threat of violence to inculcate fear intended to coerce or to intimidate governments or societies in the pursuit of goals that are generally political, religious, or ideological‖.
135 Terrorism in the world is not new thing, but it comes specifically a big thing since the Incident of World Trade Center (WTC) or has famously known as the 9/11 tragedy which took place in New York, United states of America on September 11, 2001.
The terrorist attack through the air, they do not use military aircraft but using a US commercial aircraft, so it is not caught by United States‘ radar.
US commercial aircraft had been hijacked, and two of the plane crashed into the twin towers of the World Trade Center and the Pentagon.
In total, approximately 3000 people died in the attacks.
Terrorist attack the World Trade Center because they think that the World Trade Center was a "symbol of America".
However, they attack the building is an international organization representing the world's economic prosperity.
So, in fact, they do not 133 Justice department, Federal Bureau of Investigation, (12 June 2014) <http://www.fbi.gov/publish/terror/terrusa.html> 134 See further on General military training, Terrorism, N.p.,n.d., p1-3-10,pl-3-14, and p1-3-16.
135 Heymann, P.B., Terrorism and America: A Commonsense strategy for a democratic Society, MIT Press, Cambridge, MA, 1998, 3 http://www.fbi.gov/publish/terror/terrusa.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 56 Volume 2(S) No.
1 (2015) just attack the United States, but also around the world.
United States thinks that Osama bin Laden as the prime suspect of the attacks.
136 .
International and regional attention on the radicalism Islamic groups in Indonesia came not only after the tremendous terrorist attacks on Bali on 12 October 2002.
Right after the 11 September 2001 terrorist attacks in the USA and the military of USA retaliation against Al Qaeda and the Taliban in Afghanistan, Southeast Asia suddenly became concerned by the USA 137 .
Those concerns were stronger after a string caught of arrests made by Singaporean, Malaysian and also Philippine authorities of a number of Islamic militants linked to the illegal black organization called Jemaah Islamiyah (JI) which associated with Al Qaeda or other group with the same ideology.
The indications were true by several organization members in Singapore, and some in the Philippines, provide some indications that a regional of terrorist network does in fact exist in the region 138 .
Several years before the bombing on Bali on 2002, terrorism also bombed the Jakarta stock exchange on 2000, but more than that, the terrorism in Indonesia has been stimulated since 1981, this was evidenced by the hijacking of one of the most famous commercial aircraft, which was Garuda Indonesia DC-9 Woyla which flight from Palembang to Medan.
In the event that a crew of flight, one soldier, and three terrorists were killed 139 .
Furthermore, during 2000-2011 Indonesia has become the land for developing terrorist attack.
Their motifs were remaining unknown, this interesting and worth studying, what and 136 Ibid.
137 Ramakrishna,Kumar, Tan See,Seng, After Bali: The Threat Of Terrorism in Southeast Asia, Nanyang Technological University and World Scientific Pub, 2003,341 138 BBC, Profile: Jemaah Islamiah ( 1 April 2014) <http://www.bbc.co.uk/news/world-asia-16850706> 139 Okezone, Tak Hanya Malaysia Airlines Garuda pun pernah di bajak ( 27 March 2014) <www.okezone.com/read/2014/03/15/411/955701/tak-hanya-malaysia-airlines-garuda-pun-pernah-dibajak> http://www.bbc.co.uk/news/world-asia-16850706 http://www.okezone.com/read/2014/03/15/411/955701/tak-hanya-malaysia-airlines-garuda-pun-pernah-dibajak Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 57 Volume 2(S) No.
1 (2015) how was the government of Indonesia encounter and combat the terrorism?
That‘s the important point for this research.
II.
LEGAL MATERIALS AND METHODS A.
Type of Research Type of research that is used by author in researching problems in this research is a normative.
Normative research is a process to identify the rule of law, legal principle, even law doctrines in order to answer the law issue.
B.
Types of Legal materials 1) Primary Legal Materials Primary legal materials are an authoritative legal materials, which means has an authorities.
Primary legal materials used are: 1.
Law of the Republic of Indonesia No.
9 of 2013 on the Prevention and Combating the Financing of Terrorism Crime.
2.
Law No.
15 of 2003 on Criminal Acts of Terrorism 3.
Law of the Republic of Indonesia Number 12 of 1995 on Community.
4.
Presidential Instruction No.
4 Year 2002 on Terrorism.
5.
United Nations Convention against Transnational Organized Crime.
6.
Presidential Regulation Number 46 Year 2010 on the National Agency for Combating Terrorism.
7.
Code of Criminal Law.
2) Secondary Legal Materials.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 58 Volume 2(S) No.
1 (2015) Secondary legal materials that are used in this paper is the legal materials that explain the primary legal materials, in the form of literatures or books related to terrorism and radicalization.
3) Tertiary Legal Materials.
Tertiary legal materials used in this paper is a material that can provide guidance or explanation of the primary legal materials, such as dictionaries, articles, legal journals and from the internet.
4) Result and Discussion The actions of terrorism that occurred in Indonesia since 2000 until 2011 can be seen in the events as follows: Year 2000 a) Philippine Embassy Bombing, August 1, 2000.
The bomb exploded from a car parked in front of the Philippine ambassador's house, Menteng, Central Jakarta.
2 people were killed and 21 others were injured, including the Philippine ambassador Leonides T Caday.
140 b) Malaysian Embassy Bombing, August 27, 2000.
The grenade exploded in the compound of the Malaysian Embassy in Kuningan, Jakarta.
There were no fatalities.
141 c) Jakarta Stock Exchange Bombing, 13 September 2000.
The explosion happened in the parking lot P2 of Jakarta Stock Exchange Building.
10 killed, 90 others were injured.
104 cars were severely damaged, 57 damaged.
142 140 Bangla 2000,Car bomb explodes at home of Philippine ambassador, (2 August 2002) <http://www.bangla2000.com/news/archive/international/8-2-2000/news_detail4.html> 141 Malaysian embassy bombing, (23 May 2013),< http://jurnalsrigunting.com/tag/kedutaan-besar-malaysia/ > 142 Levi Silalahi, Erwin Prima , Tempo news, Teror Bom di Indonesia (Beberapa di Luar Negeri) dari Waktu ke Waktu , (17 April 2004) <http://tempo.co.id/hg/timeline/2004/04/17/tml,20040417-01,id.html> http://www.bangla2000.com/news/archive/international/8-2-2000/news_detail4.html http://jurnalsrigunting.com/tag/kedutaan-besar-malaysia/ http://tempo.co.id/hg/timeline/2004/04/17/tml,20040417-01,id.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 59 Volume 2(S) No.
1 (2015) d) A Bomb blasted on Christmas Eve, December 24, 2000.
Another series of bomb blasts on Christmas Eve in several cities in Indonesia, it has gotten the lives of 16 people and injured 96 others and 37 cars also damaged.
143 Year 2001 a) The Bombing at HKBP Church of Santa Anna, July 22, 2001.
Kalimalang Region, East Jakarta, 5 people was killed.
144 b) The Bombing in Plaza Atrium Senen, Jakarta, 23 September 2001.
The bomb exploded in the Atrium Plaza, Senen, Jakarta.
6 people were seriously damaged.
c) The Bombing at KFC restaurants, Makassar, October 12, 2001.
The bomb explosion resulted in the glass, the ceiling, and neon sign KFC rupture.
There were no damages.
Luckily, Another bomb which was placed in The Makassar branch office of MLC Life didn‘t explode.
145 d) The Bombing at School of Australia, Jakarta, 6 November 2001.
Simple homemade bombs exploded in the courtyard of Australian International School (AIS), Pejaten, Jakarta.
146 Year 2002 a) The Bombing at New Year, January 1, 2002.
Mangosteen grenade exploded in front of the restaurant Bulungan, Jakarta.
One person was killed and another wounded 147 .
In Palu, Central Sulawesi, four bomb blasts occurred at various churches.
There were no fatalities.
143 Tim Penulis, Detik.com, Detik-detik Sebelum Aksi Bom Natal 2000 Christmas, (8 May 2012), <http://www.beritasatu.com/hukum/46781-detik-detik-sebelum-aksi-bom-natal-2000.html> 144 ICH/Darussalam dan Julianus Kriswantoro, Liputan 6 News, Tiga Bom Ditemukan di Halaman Gereja HKBP, (24 July 2001), <http://news.liputan6.com/read/17015/tiga-bom-ditemukan-di-halaman-gereja-hkbp> 145 Iwan Taruna, Liputan 6 News, Restoran KFC di Makassar Dibom, (13 October 2001), <http://news.liputan6.com/read/21665/restoran-kfc-di-makassar-dibom> 146 Human Terror, List of terrorism in Indonesia on Human Terror, List of terrorism in Indonesia, (31 July 2010) <http://humanteror.blogspot.com.au/2010/07/list-of-terrorism-in-indonesia.html> http://www.beritasatu.com/hukum/46781-detik-detik-sebelum-aksi-bom-natal-2000.html http://news.liputan6.com/read/17015/tiga-bom-ditemukan-di-halaman-gereja-hkbp http://news.liputan6.com/read/21665/restoran-kfc-di-makassar-dibom http://humanteror.blogspot.com.au/2010/07/list-of-terrorism-in-indonesia.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 60 Volume 2(S) No.
1 (2015) b) Bali Bombing, October 12, 2002.
Three explosions occurred in Bali.
202 victims of the majority of Australian citizens were killed and 300 others were injured.
At the same time, in Manado, North Sulawesi, simple homemade bombs also exploded in the office of Consul General of the Philippines, there were no casualties.
148 c) The Bombing at McDonald‘s restaurants, Makassar, December 5, 2002.
Homemade bomb wrapped in a steel plate container exploded in Makassar McDonald's restaurant.
3 people were killed and 11 wounded.
149 Year 2003 a) Bombing at the Police Headquarter Complex, Jakarta, February 3, 2003, homemade bomb exploded in the lobby of Wisma Bhayangkari, Jakarta Police Headquarters.
There were no fatalities.
150 b) Bombing at Soekarno-Hatta Airport, Jakarta, 27 April 2003. the bomb exploded in the public areas of the terminal 2F, the international airport Soekarno-Hatta, Cengkareng, Jakarta.
2 people were seriously injured and eight other moderate and mild injuries.
151 c) JW Marriott bombing, August 5, 2003.
The bomb destroyed part of the JW Marriott Hotel.
11 people were killed and 152 others were injured.
152 Year 2004 a) The Bombing at Palopo, January 10, 2004.
Killed four people.
153 147 Tim Liputan 6 SCTV, Liputan 6 News, Ledakan Bom Mewarnai Malam Pergantian Tahun (2 June 2002), <http://news.liputan6.com/read/26381/ledakan-bom-mewarnai-malam-pergantian-tahun> 148 Muhammad Darlis, Tempo Interaktif, Bom di Gereja Pantekosta Palu Lukai Seorang Polisi, (1 January 2002), <http://www.tempo.co/read/news/2002/01/01/05817/Bom-di-Gereja-Pantekosta-Palu-Lukai-Seorang-Polisi> 149 Tim Penulis, Global Jihad, Makassar McDonald Bombing, (21 December 2008) <http://www.globaljihad.net/view_page.asp?id=1279> 150 Tim Liputan 6 SCTV, Liputan 6 News, Bom Meledak di Wisma Bhayangkari, (3 February 2003), <http://news.liputan6.com/read/48959/bom-meledak-di-wisma-bhayangkari> 151 Ratna Nuraini, Teknologi news, Duarr... Bom Guncang Kelima Bandara Ini, (21 July 2013), <http://teknologi.inilah.com/read/detail/2012432/duarr-bom-guncang-kelima-bandara-ini/870/5-bandara-soekarnohatta-indonesia-2003> 152 Tim Penulis Kompas, Kompas, Catatan Ledakan Marriot Tahun 2003, (17 July 2009) <http://nasional.kompas.com/read/2009/07/17/10125777/catatan.ledakan.marriott.tahun.2003> http://news.liputan6.com/read/26381/ledakan-bom-mewarnai-malam-pergantian-tahun http://www.tempo.co/read/news/2002/01/01/05817/Bom-di-Gereja-Pantekosta-Palu-Lukai-Seorang-Polisi http://www.globaljihad.net/view_page.asp?id=1279 http://news.liputan6.com/read/48959/bom-meledak-di-wisma-bhayangkari http://teknologi.inilah.com/read/detail/2012432/duarr-bom-guncang-kelima-bandara-ini/870/5-bandara-soekarno-hatta-indonesia-2003 http://teknologi.inilah.com/read/detail/2012432/duarr-bom-guncang-kelima-bandara-ini/870/5-bandara-soekarno-hatta-indonesia-2003 http://nasional.kompas.com/read/2009/07/17/10125777/catatan.ledakan.marriott.tahun.2003 Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 61 Volume 2(S) No.
1 (2015) b) Australian Embassy Bombing, 9 September 2004.
A large explosion occurred in front of Australian Embassy.
5 people were killed and hundreds injured.
The explosion also resulted in damage to several buildings in the vicinity such as the Tower Plaza 89, Tower Grasia, and BNI Building.
154 c) A bomb blast at Immanuel Church, Palu, Central Sulawesi on December 12, 2004.
155 Year 2005 a) Two bombs exploded in Ambon on March 21, 2005.
156 b) The Bombing at Tentena, May 28, 2005.
22 people were killed.
157 c) The Bombing at Pamulang, Tangerang, June 8, 2005.
The bomb exploded at the home page of the Expert Circuit Board Assembly Policy Mujahidin Indonesia M Iqbal alias Abu Jibril in Pamulang West.
There were no fatalities.
158 d) Bali Bombing, October 1, 2005.
The Bomb detonated in Bali.
At least 22 people were killed and 102 injured in the blast that occurred in R. AJA 's Bar and Restaurant, Kuta Square, Kuta Beach area and in the Nyoman Cafe, Jimbaran.
159 e) The Bombing at Market Palu, December 31, 2005.
The bomb exploded at a market in Palu, Central Sulawesi that killed 8 people and wounding at least 45 people.
160 153 BBC, Four die in Indonesia cafe blast, < http://news.bbc.co.uk/2/hi/asia-pacific/3386113.stm> 154 Simon Jeffery, Mark Oliver and agencies, The Guardian, Australian embassy bomb kills nine, (9 September 2004),<http://www.theguardian.com/world/2004/sep/09/indonesia.australia1> 155 Tim Liputan, Indosiar News, Bom Meledak di Gereja Immanuel Palu Ciderai Seorang Satpam, (12 December 2012), <http://www.indosiar.com/fokus/bom-meledak-di-gereja-immanuel-palu-ciderai-seorangsatpam_29499.html> 156 Yusnita, Tempo Interaktif, Bom Meledak di Batu Merah Ambon, (21 march 2005), <http://tempo.co.id/hg/nusa/maluku/2005/03/21/brk,20050321-69,id.html> 157 Den Tim Liputan 6 SCTV, Liputan 6, Dua Bom Meledak di Poso, Lima Tewas, (28 May 2005), <http://news.liputan6.com/read/102428/dua-bom-meledak-di-poso-lima-tewas> 158 Umi, Detik News, Komposisi Bom Pamulang Sama dengan Mercon, (9 June 2005), <http://news.detik.com/read/2005/06/09/114028/377954/10/komposisi-bom-pamulang-sama-dengan-mercon> 159 Raymond Bonner and Jane Perlez, The New York Times, Bali Bombings Kill at Least 25 in Tourist Spots, (2 october 2005), <http://www.nytimes.com/2005/10/02/international/asia/02bali.html?pagewanted=all> 160 Aih, Suara Merdeka, Bom Palu, Polisi Periksa 27 Saksi, (2 January 2006), <http://www.suaramerdeka.com/harian/0601/02/nas01.htm> http://news.bbc.co.uk/2/hi/asia-pacific/3386113.stm http://www.theguardian.com/world/2004/sep/09/indonesia.australia1 http://www.indosiar.com/fokus/bom-meledak-di-gereja-immanuel-palu-ciderai-seorang-satpam_29499.html http://www.indosiar.com/fokus/bom-meledak-di-gereja-immanuel-palu-ciderai-seorang-satpam_29499.html http://tempo.co.id/hg/nusa/maluku/2005/03/21/brk,20050321-69,id.html http://news.liputan6.com/read/102428/dua-bom-meledak-di-poso-lima-tewas http://news.detik.com/read/2005/06/09/114028/377954/10/komposisi-bom-pamulang-sama-dengan-mercon http://www.nytimes.com/2005/10/02/international/asia/02bali.html?pagewanted=all http://www.suaramerdeka.com/harian/0601/02/nas01.htm Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 62 Volume 2(S) No.
1 (2015) Year 2009 July 17, 2009.
Two powerful explosions occurred at the JW Marriott and Ritz-Carlton, Jakarta.
The explosion occurred almost simultaneously at around 7:50 pm.
161 Year 2010 Robbery of Bank CIMB Niaga in Medan September 2010.
162 Year 2011 a) Bombing in Cirebon, 15 April 2011.
Suicide bomb blast in a mosque during Muslim Friday prayers.
163 b) The Bombing at Ivory Serpong, 22 April 2011.
A planned bomb targeting the Christ Church Cathedral in Tangerang, Banten.
164 c) The Bombing at Solo, 25 September 2011.
Suicide bomb blast in GBIS Kepunton, Solo, Central Java after the worship service and the congregation out of church.
One person suicide bombers were killed and 28 others seriously injured.
165 III.
DISCUSSION a.
Counter Terrorism in Indonesia.
Counter terrorist campaigns can be undertaken by military and paramilitary forces.
These are long term policies of conducting operations against terrorist cadres, their bases, and support apparatuses.
Counterterrorism refers to proactive policies that specifically seek to eliminate 161 Odi, Detik News, Bom JW Marriott Meledak di JW Lounge, Bukan di Restoran Syailendra, (18 July 2009),<http://news.detik.com/read/2009/07/18/204111/1167801/10/bom-jw-marriott-meledak-di-jw-lounge-bukandi-restoran-syailendra> 162 Gus, Detk News, Kronologi Perampokan Bank CIMB Niaga Medan Aksara, (19 august 2010), < http://news.detik.com/read/2010/08/19/120431/1423434/10/kronologi-perampokan-bank-cimb-niaga-medanaksara> 163 Tim penulis, BBC Indonesia, Polisi menangkap 5 orang terkait kasus bom Cirebon, (8 october 2011), < http://www.bbc.co.uk/indonesia/berita_indonesia/2011/10/111008_limatersangkabomcirebon.shtml> 164 Inggried, Kompas.com, Bom Serpong Sempat Meledak, (22 April 2011), < http://nasional.kompas.com/read/2011/04/22/18494676/Bom.Serpong.Sempat.Meledak> 165 Agus Mulyadi, Kompas.com, Bom Solo Bagian dari Upaya Adu Domba, (25 September 2011), < http://nasional.kompas.com/read/2011/09/25/15260572/Bom.Solo.Bagian.dari.Upaya.Adu.Domba.> http://news.detik.com/read/2009/07/18/204111/1167801/10/bom-jw-marriott-meledak-di-jw-lounge-bukan-di-restoran-syailendra http://news.detik.com/read/2009/07/18/204111/1167801/10/bom-jw-marriott-meledak-di-jw-lounge-bukan-di-restoran-syailendra http://news.detik.com/read/2010/08/19/120431/1423434/10/kronologi-perampokan-bank-cimb-niaga-medan-aksara http://news.detik.com/read/2010/08/19/120431/1423434/10/kronologi-perampokan-bank-cimb-niaga-medan-aksara http://www.bbc.co.uk/indonesia/berita_indonesia/2011/10/111008_limatersangkabomcirebon.shtml http://nasional.kompas.com/read/2011/04/22/18494676/Bom.Serpong.Sempat.Meledak http://nasional.kompas.com/read/2011/09/25/15260572/Bom.Solo.Bagian.dari.Upaya.Adu.Domba Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 63 Volume 2(S) No.
1 (2015) terrorist environments and groups, Regardless of which policy is selected, the ultimate goal of counterterrorism is clear: to save lives by proactively preventing or decreasing the number of terrorist attacks.
As a corollary, antiterrorism refers to target hardening, enhanced security and other defensive measures seeking to deter or prevent terrorist attacks 166 .
In Indonesia, there are 3 (Three) departments which are responsible in combatting terrorism: b.
Police: Detachment 88 Indonesian National Police institution (referred to as the Police) is the vanguard of security in Indonesia.
The development of the police cannot be separated from the history of the struggle for independence of the Republic of Indonesia since Indonesian proclamation.
In the past, the police has been faced with tasks that are unique and complex.
In addition, to manage the security and public order in times of war, the police also directly involved in the fight against the invaders with other military armed forces.. 167 Currently, the performance of the police has not only focused current conflict / violence, but also on the preventive side.
This is also straight with the vision of the Police is to become a patron and defender whose always compact to the society, as well as a professional and proportional law enforcement and always uphold the supremacy of law and human rights 168 .
In order to achieve this vision, the police have missions 169 : a) Aspects of security, warranty, security and peace so that people are free from physical interference or psychological interference 166 Martin,Gus, Understanding terrorism, Sage publications, 2006, 476 167 POLRI , Sejarah POLRI,< http://www.polri.go.id/organisasi/op/sp/> 168 POLRI,Visi POLRI, <http://www.polri.go.id/organisasi/op/vm/ > 169 POLRI, Misi POLRI, <http://www.polri.go.id/organisasi/op/vm/ > http://www.polri.go.id/organisasi/op/sp/ http://www.polri.go.id/organisasi/op/vm/ http://www.polri.go.id/organisasi/op/vm/ Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 64 Volume 2(S) No.
1 (2015) b) Providing guidance to the public through preemptive and preventive efforts in order to raise the awareness of legal in society (Law abiding citizen) c) Maintaining the public order and safety with regard to norms and values that apply in the frame of territorial integrity of the Unitary Republic of Indonesia.
d) Continuing to restore the security in several areas of conflict in order to ensure the integrity of the Unitary Republic of Indonesia In case of combating terrorism in Indonesia, the police also has an important role, especially with the establishment of special anti-terror Detachment named Detachment AntiTerror Special 88 (hereinafter referred to Detachment 88).
The Establishment of Detachment 88 has a long history, it was associated with the institutional system of defense and security in Indonesia.
The momentum of the global campaign against terrorism, war, was a turning point for strengthening and developing of anti-terror institutions which are well established, reliable and professional.
The strengthening of anti-terror institution is eventually done in the police service, beside this, other than as a strategy to gain support and assistance from the western countries to keep giving aid to build anti-terror institutions, and the Police also regarded as an institution that is able to develop the anti-terror institution.
When the global fight against terrorism campaign was getting stronger, the Indonesian government responded by issuing a Presidential Instruction (Instruction) No.
4 Year 2002 on Terrorism, which was then reinforced by the issuance of the National Policy in combatting Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 65 Volume 2(S) No.
1 (2015) terrorism in the form of Regulation in Lieu of Law (GRL) 170 No.1 and 2 of 2002.
As the response of Instruction, then the ministry of politics and security coordinator formed the AntiTerrorism Coordinating Desk directly under the coordination of the Ministry of Politics and security coordinator.
In case of anticipating the terrorism, the Indonesian national police department has established 3 departments in combatting terrorism: 1.
Detasemen C Resimen IV Gegana.
2.
Police Bomb Task Force Detachment 88.
Besides the Detasement C resimen IV Gegana and Police Bomb Task Force, Indonesian National Police also has a similar organization with the name of the Anti-Terrorism Directorate VI under the Criminal Investigation Police Headquarters.
The existence of the Anti-Terrorism Directorate VI overlapped and had the same functions and duties as are carried out by the Police Bomb Task Force.
Then, the Police Headquarters finally reorganized the Directorate Anti-Terror VI, then the Chief of Police formally published the Skep police no.
30/VI/2003 dated June 20, 2003 marked as the establishment of the Special Detachment 88 Anti-Terror Police, or known as AT Police Detachment 88.
Detachment 88, is defined here as a highly trained police unit that specialize in unconventional operations.
This unit is usually not organized in the same manner as conventional forces, because their missions require them to operate quickly and covertly in very hostile environments.
Operations are frequently conducted by small teams of operatives, although fairly large units can be deployed if required by circumstances.
Depending on its missions, Detachment 88 is trained for long range, reconnaissance, surveillance, ―surgical‖ 170 GRL is a form of legislation enacted by the President in emergency circumstances.
In the hierarchy of Indonesian law, a GRL(‗perpu`) is one rank below a law or act (‗Undang-undang`).
Under the Constitution it is required for the Perpu to be brought before Parliament approval.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 66 Volume 2(S) No.
1 (2015) punitive raids, hostage rescue, abductions and liaisons with allied counterterrorist forces.
It‘s training and organizational configurations are ideally suited to counter terrorist operations.
The existence of the Skep police as the issuance of Law no.
15 of 2003 on Terrorism or commonly called the Anti-Terrorism Act, which reinforce theof the police as a key element in the eradication of terrorism, while the TNI (Army) and BIN are the only supporting elements of the eradication of terrorism.
The condition is actually in line with the Instruction and Government Regulations, which issued by the government before the legislation of combating terrorism is enacted into law.
Based on article 46 Paragraph 7 Perkap 171 No 21 Tahun 2010, Detachment 88 or commonly known as Densus 88 has tasked in follows: Detachment 88 charges of organizing the functions of intelligence, prevention, investigation, prosecution, and operational assistance in the framework of the investigation of criminal acts of terrorism.
The prevention efforts undertaken by the Police Headquarters is still less than optimal, this is due to three things that become obstacles 1) anti-terror entity's organizational structure, 2) the number of existing personnel and 3) judicial obstacles.
1.
Anti-terror entity‘s organizational structure Currently in the entity of Indonesia National police, there are three departments who have the duties and functions that handles terrorism, they are Detachment 88, Direktorat VI anti-terror, Datasemen C Resimen IV Gegana Brimob.
Although the Detachment 88 was formed, the existence of three units still maintained, with the assumption that each entity can co-exist and synergy, but in fact the existence of three units in one institution and 171 Perkap is a form of legislation enacted by the Indonesia‘s police.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 67 Volume 2(S) No.
1 (2015) small differences between the unit.
Indonesian National police contains an internal risk conflict and surely will hamper the prevention of terrorism in Indonesia.
The existence of three anti-terror in one department is being part of unfavorable, the internal police at least require clarification on the role and each main function.
But, until now, the role and function of the Direktorat VI anti-terror, Detachment 88 and Datasemen C Resimen IV Gegana Brimob are almost identical and similar to each other, although the problem has not happened until now, but it is quite possible that problems will arise soon.
2.
The number of existing personnel Related to the number of personnel of Detachment 88, until now there are 400 personnel have joined Detachment 88 which has spread in some areas in Indonesia.
Viewing the tasks and functions of Detachment 88, numbers are still too low.
This because, many of its personnel doing a long term under cover, whereas, in Indonesia there are still a lot of terrorism, critical spots so that they need more numbers to back up.
3.
Judicial obstacles.
It is associated with the procedures, duties and responsibilities that must be performed by Detachment 88.
Detachment 88 is also given the authority to make arrests even the authority to shoot dead if endangered.
However, the arrestment period only given 2 weeks or 14 days, actually this is a very short period of time, remembering the integration and examination of terrorist is longer and harder than any other common criminal suspect, so it takes longer time.
c. BNPT (The Interdepartmental National Antiterrorism Agency) Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 68 Volume 2(S) No.
1 (2015) Based on the decision of the Ministry of Political and Security coordinator number kep26/Menko/Polkam/11/2002.
Then the Minister of Political and security coordinator formed the desk in preventing terrorism (DKPT) or in Indonesian version known as Desk Koordinasi Pemberantasan Terorisme.
The DKPT was given a task to assist the Minister of Political and security coordinator in formulating policies for the prevention of terrorism, which includes aspects of deterrence, prevention, reduction, termination settlement, and all legal action if necessary.
In its journey, DKPT subsequently changed the name and function into the Interdepartmental National Antiterrorism Agency (BNPT) which has duties and functions as set out in the Presidential Decree No.
46 Year 2010 as below 172 : 1.
Formulate the policies, strategies, and also national programs in combating terrorism 2.
Coordinating with the government agencies which involved terrorism field area.
Based on that, then the function of BNPT is as below 173 : 1.
Forming the policies, strategies and programs in the counterterrorism field area 2.
Monitoring, analysis, and evaluation in counterterrorism field area 3.
A Coordination in the implementation of prevention and fight against radical ideology propaganda.
4.
The implementation of deradicalization 174 5.
The protection of objects as potential targets of terrorism attacks.
6.
The implementation of international cooperation in counterterrorism field area 172 BNPT, Tugas pokok dan fungsi BNPT,< http://www.bnpt.go.id/profil.php> 173 BNPT,Fungsi BNPT, < http://www.bnpt.go.id/profil.php> 174 De-readicalization is a misleading term to encompass what are context specific and culturally determined efforts to reduce the risk of involvement or re-engagement.
Hence ‗risk reduction‘ is a more appropriate and accurate description of this progress.
http://www.bnpt.go.id/profil.php http://www.bnpt.go.id/profil.php Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 69 Volume 2(S) No.
1 (2015) The prevention efforts undertaken by the Interdepartmental National Antiterrorism Agency are still less than optimal, this is due to two things that become obstacles: 1.
15 year 2003 and the Presidential regulation No.
46/2010 are the only regulation in combatting and preventing terrorism.
2.
Problems of Human Resources (HR) which assessed in BNPT and also need a new adjustment in infrastructure side.
d. The Correctional Facility.
From the previous discussion revealed the fact that in a criminal case as extraordinary crime, both the punishment of material and formal criminal has some differences with other criminal cases.
So that the process of investigation, prosecution and court proceedings also have its own peculiarities.
The next step is determining the treatment of terrorism prisoners in the correctional system as a process to create a presence of reformation, retribution, restraint, and deterrence to the prisoners themselves even the impact socially.
Inmates criminal acts of terrorism in general have a strong ideology that is considered a crime that they did is Jihad which struggle to defend religion.
Besides having a hard ideology, the criminal acts of terrorism prisoners also have a closed stance with the other inmates and even closed on programs that should be taken by the prisoners.
However, not most of them has closed character, there are some that are extroverted to the surrounding environment in prison.
By looking at the characters of terrorist, the correctional facility‘s officer will separate the terrorist‘s room with other inmates.
This separation serves to facilitate the officers to conduct surveillance against terrorism prisoners.
With such control all activities, the terrorist is closely Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 70 Volume 2(S) No.
1 (2015) monitored by the officer or inmate who is believed to be a spy.
This is done in order to avoid the dissemination of the Jihad concept to all inmates in a correctional facility.
One of the correctional facility‘s programs is the development of legal awareness, the goal of this program is to achieve a high level of legal awareness in the society.
This program is also to guide the terrorist to recognize the rights and obligations in order to participate uphold law and justice, order, peace, rule of law and the behavior of every Indonesian citizen.
Related to the implementation of legal awareness program, there is one other program which given to the terrorist.
The program, called de-radicalization.
De-radicalization is a misleading term to encompass what are context specific and culturally determined efforts to reduce the risk of involvement or re-engagement.
Hence ‗risk reduction‘ is a more appropriate and accurate description of this progress.
The methodology developed by Indonesia is called ―cultural interrogation.‖ It requires the interrogator to be immersed in the culture of the terrorist, understand his hopes and fears, and speak his language.
Besides that, the program is reuniting the terrorist with their families, and to remind them of their earthly responsibilities as husbands and fathers.
The police pay for the families‘ travel and also gives them some additional financial support.
Since there are no governments or police funds available for this activitiy, the interrogators are forced to raise funds through private donations from friends and supporters.
From this terrorism prevention program, this program has been very successful in eliciting information that has enabled the police to disrupt the terrorist network in Indonesia.
Some individuals are cooperating privately with the police to disengage another militants from another Jihad network.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 71 Volume 2(S) No.
1 (2015) So far, this approach is not successful works to all inmates, some show no remorse for their involvement in terrorism and tell the interrogators that one day they will switch places, the terrorist will interrogate the police, or that their struggle will continued by their children or grandchild.
IV.
CONCLUSION Whereas government agencies (stakeholders) which involved in the handling, prosecution and prevention of terrorist acts have yet to implement the de-radicalization program effectively.
The ministry of law and human rights, BNPT (The Interdepartmental National Antiterrorism Agency) and Police Headquarters have a slightly different program on counter terrorism in Indonesia.
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1 (2015) Raymond Bonner and Jane Perlez, The New York Times, Bali Bombings Kill at Least 25 in Tourist Spots, (2 october 2005), <http://www.nytimes.com/2005/10/02/international/asia/02bali.html?pagewanted=all > Simon Jeffery, Mark Oliver and agencies, The Guardian, Australian embassy bomb kills nine, (9 September 2004),<http://www.theguardian.com/world/2004/sep/09/indonesia.australia1> Tim Penulis Kompas, Kompas, Catatan Ledakan Marriot Tahun 2003, (17 July 2009) <http://nasional.kompas.com/read/2009/07/17/10125777/catatan.ledakan.marriott.tahun.2 003> Tim Liputan 6 SCTV, Liputan 6 News, Ledakan Bom Mewarnai Malam Pergantian Tahun (2 June 2002), <http://news.liputan6.com/read/26381/ledakan-bom-mewarnai-malampergantian-tahun> Tim Penulis, Global Jihad, Makassar McDonald Bombing, (21 December 2008) <http://www.globaljihad.net/view_page.asp?id=1279> Tim Liputan 6 SCTV, Liputan 6 News, Bom Meledak di Wisma Bhayangkari, (3 February 2003), <http://news.liputan6.com/read/48959/bom-meledak-di-wisma-bhayangkari> Tim Liputan, Indosiar News, Bom Meledak di Gereja Immanuel Palu Ciderai Seorang Satpam, (12 December 2012), <http://www.indosiar.com/fokus/bom-meledak-di-gerejaimmanuel-palu-ciderai-seorang-satpam_29499.html> Tim penulis, BBC Indonesia, Polisi menangkap 5 orang terkait kasus bom Cirebon, (8 october 2011), < http://www.bbc.co.uk/indonesia/berita_indonesia/2011/10/111008_limatersangkabomcire bon.shtml> Umi, Detik News, Komposisi Bom Pamulang Sama dengan Mercon, (9 June 2005), <http://news.detik.com/read/2005/06/09/114028/377954/10/komposisi-bom-pamulangsama-dengan-mercon> Yusnita, Tempo Interaktif, Bom Meledak di Batu Merah Ambon, (21 march 2005), <http://tempo.co.id/hg/nusa/maluku/2005/03/21/brk,20050321-69,id.html> http://nasional.kompas.com/read/2009/07/17/10125777/catatan.ledakan.marriott.tahun.2003 http://nasional.kompas.com/read/2009/07/17/10125777/catatan.ledakan.marriott.tahun.2003 http://news.liputan6.com/read/26381/ledakan-bom-mewarnai-malam-pergantian-tahun http://news.liputan6.com/read/26381/ledakan-bom-mewarnai-malam-pergantian-tahun http://www.globaljihad.net/view_page.asp?id=1279 http://news.liputan6.com/read/48959/bom-meledak-di-wisma-bhayangkari http://www.indosiar.com/fokus/bom-meledak-di-gereja-immanuel-palu-ciderai-seorang-satpam_29499.html http://www.indosiar.com/fokus/bom-meledak-di-gereja-immanuel-palu-ciderai-seorang-satpam_29499.html http://www.bbc.co.uk/indonesia/berita_indonesia/2011/10/111008_limatersangkabomcirebon.shtml http://www.bbc.co.uk/indonesia/berita_indonesia/2011/10/111008_limatersangkabomcirebon.shtml http://news.detik.com/read/2005/06/09/114028/377954/10/komposisi-bom-pamulang-sama-dengan-mercon http://news.detik.com/read/2005/06/09/114028/377954/10/komposisi-bom-pamulang-sama-dengan-mercon http://tempo.co.id/hg/nusa/maluku/2005/03/21/brk,20050321-69,id.html Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 74 Volume 2(S) No.
1 (2015) MODERN SLAVERY IN INDONESIA: BETWEEN NORMS AND IMPLEMENTATION Savira Dhanika Hardianti 175 Faculty of Law Brawijaya University Abstract People in the 21st century are still sold like objects, forced to work for little or no wages paid and at the mercy of 'employer'.
Global Slavery Index (GSI) in 2013 showed that an estimated 29.8 million people living in modern-day slavery.
In Indonesia there are 210 970 people living in slavery.
Although Indonesia has some of the laws governing modern slavery are included in the Law of Anti-Trafficking.
This paper tries to find the norms and implementation in practice of modern slavery.
How norms are implemented by the government and what barriers to enforce the law.
Keywords: Forced Labor, Slavery, Human Rights, Human Trafficking I.
INTRODUCTION Slavery is a problem that should be a concern to the international community as a violation of human rights.
Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are carried out.
The international prohibition on slavery is absolute; there are no exceptions (as there are for forced labor).
Slavery is an institution in which the slave master‘s exercise of the rights of ownership destroys the human personality the person as a bearer of rights and reduces the slave to chattel, without rights.
Human rights are the basic rights and freedoms that belong to every person in the world.
Based on United Nations Universal Declaration of Human Right 1948 (UDHR), No one shall be held in slavery and the slave trade shall be prohibited in all their forms.
But in reality, some people now in the 21st century are still sold like objects, forced to work for less Money or not paid at all and 175 This writer is a student at faculty of Law, Brawijaya University.
Email address at saviradhanika@ymail.com Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 75 Volume 2(S) No.
1 (2015) at the complete mercy of their 'employers'.
176 Definitions of modern slavery hardly found in any literature.
But is in slavery if they are: 1.
Forced to work through mental or physical threat; 2.
Owned or controlled by an 'employer', usually through mental or physical abuse or the threat of abuse; 3.
Dehumanized, treated as a commodity or bought and sold as 'property'; 4.
Physically constrained or has restrictions placed on his/her freedom of movement.
Global Slavery Index (GSI) in 2013 showed that an estimated 29.8 million people were forced to work and paid less than they should accept or unpaid.
Table 1: 177 Countries with the highest estimate population in Modern Slavery Country Name Rank Estimate of Population in Modern Slavery Lower Range of Estimate Upper Range of Estimate India 1 13,956,010 13,300,000 14,700,000 China 2 2,949,243 2,800,000 3,100,000 Pakistan 3 2,127,132 2,000,000 2,200,000 Nigeria 4 701,032 670,000 740,000 Ethiopia 5 651,110 620,000 680,000 Russia 6 516,217 490,000 540,000 Thailand 7 472,811 450,000 500,000 Democratic Republic of the Congo 8 462,327 440,000 490,000 Myanmar 9 384,037 360,000 400,000 176 What Is Modern Slavery, (6th April 2014) <http://www.antislavery.org/english/slavery_today/what_is_modern_slavery.aspx> 177 Ibid Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 76 Volume 2(S) No.
1 (2015) Bangladesh 10 343,192 330,000 360,000 Tanzania 11 329,503 310,000 350,000 Sudan 12 264,518 250,000 280,000 Nepal 13 258,806 250,000 270,000 Uganda 14 254,541 240,000 270,000 Vietnam 15 248,705 240,000 260,000 Indonesia 16 210,970 200,000 220,000 The table above shows that Indonesia is ranked 16 in modern slavery, with around 210,970 Indonesian people enslaved.
Modern slavery practices in Indonesia can be seen in some companies where workers are treated like a slave, not like the other workers.
The forms of slavery are various.
Some of the forms of slavery are Bonded Labor, Forced Labor, Descent-based slavery, Trafficking, Child slavery, early and Forced Marriage.
This paper would be focused on Forced Labor.
Forced labor is any work or services which people are forced to do against their will under the threat of some form punishment.
Almost all slavery practices, including trafficking in people and bonded labor, contain some element of forced labor.
The worst case is always remembered as an act of Slavery in Indonesia is the case in Pot Plant, which is located in Tangerang, West Java, Indonesia.
The owner gets 11 years after he was proven guilty of holding employees at his factory captive, including several minors, and make them work without being paid.
They were also not allowed to change their clothes and all their belongings were confiscated by their employer.
However, protecting human rights is one of the Indonesian Government responsibilities.
Being a forced labor means living in a modern slavery.
Therefore, this paper will try to answer: How is forced labor according to Indonesian law?
What is Indonesian Government effort in combating forced labor?
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 77 Volume 2(S) No.
1 (2015) II.
LEGAL MATERIALS AND METHODS A.
Type of Research Type of research that is used by author in researching problems in this research is a norm.
Normative research is a process to identify the rule of law, legal principle, even law doctrines in order to answer the law issue.
B.
Types of Legal materials 1) Primary Legal Materials Primary legal materials are an authoritative legal materials, which means has an authority.
Primary legal materials used are: a.
The Slavery Convention 1926 b. Indonesian constitution 1945 c. Act number 39 year 1999 on Human Rights d. Act Number 13 Year 2003 on Manpower e. Act no 21 year 2007 on Eradication of the Criminal Act of the Trafficking in persons f. Indonesian criminal code 2) Secondary Legal Materials.
Secondary legal materials that are used in this paper is the legal materials that explain the primary legal materials, in the form of literatures or books related to a modern form of slavery.
3) Tertiary Legal Materials.
Tertiary legal materials that are used in this paper is materials which could provide clues or explanations towards primary legal materials, such as dictionaries, Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 78 Volume 2(S) No.
1 (2015) articles, law journals and from the internet.
III.
Result and Discussion Forced labor According to Indonesian Law Indonesia is a larger country with the population more than 200 million people, with 7, 15 million people unemployed.
178 Poverty is almost everywhere and it makes them to accept a wide variety of work, and it could be one of the factors of human trafficking in Indonesia.
We must remember that slavery is a type of human trafficking.
International concern with slavery and its suppression is the theme of many treaties, declarations and conventions of the nineteenth and twentieth centuries.
The first of three modern conventions directly related to the issue is the Slavery Convention of 1926, drawn up by the League of Nations.
179 Based on The Slavery Convention 1926 article 1, Slavery can be described as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
People who forced to work and paid nothing is a kind of modern slavery.
The regulation concerning about modern slavery is not just The Slavery Convention 1926, but also Suppelementary Slavery Convention, UN Trafficking Protocol, Abolition Forced Labor Protocol, and etc.
It means since 1926 the world has agreed that no one shall be in slavery.
Although Indonesia is one of UN members, but some of those conventions have not been ratified by The Indonesian Government.
178 Official report of Central Bureau of Statistic of Manpower Affairs February 2014 No.
38/05/Th.
XVII, 5 May 2014 179 Factsheet No 14, Contemporarry Forms of Slavery (26th June 2014) <http://www.ohchr.org/Documents/Publications/FactSheet14en.pdf> Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 79 Volume 2(S) No.
1 (2015) Table 2: 180 The Conventions Relevant to Modern Slavery INDONESIA RATIFIED THE SLAVERY CONVENTION NO SUPPLEMENTARY SLAVERY CONVENTION NO UNTRAFFICKING PROTOCOL YES ABOLITION FORCED LABOR CONVENTION (ACT NUMBER 19 YEAR 1999) YES WORST FORMS OF CHILD LABOR CONVENTION YES CRC OPTIONAL PROTOCOL ON THE SALE OF CHILDREN YES From the table and explanation above shows that the slavery convention and supplementary slavery convention, which are the ―main‖ conventions concerning about slavery has not been ratified by Indonesia.
But it does not mean that Indonesia has no regulation about slavery practice.
The Indonesian constitution year 1945 Article 28I (1) constitution of Indonesia ensures that: The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances.
Indonesian citizens are subjected to modern slavery in various forms.
181 (1) No one shall be held in slavery or servitude 180 The table is compiled from many resources.
181 Walk Free Fondation, 2013.
Global Slavery Index 2013 : Indonesia (6th April 2014) <http://www.globalslaveryindex.org/country/indonesia/> Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 80 Volume 2(S) No.
1 (2015) (2) Slavery, the slave trade and servitude shall be prohibited in all their forms a.
Occupational safety and health protection; b.
Protection against immorality and indecency; ―Slavery is the status or condition of a person who is under the ownership of another person.
The slavery-like practice is the act to put someone under another person's power so that the person is not able to resist the job that is unlawfully commanded by another person.
Even that person does not want to do it.” The penal code also gives punishment for the employer who does the slavery-like practices.
Indonesian penal code (Kitab Undang-Undang Hukum Pidana) article 333 (1) stated that: Any person who with deliberate intent and unlawfully deprives someone or keeps someone deprived of his liberty, shall be punished by a maximum imprisonment of eight years.
Those articles in Indonesian national law above shows that Indonesia ensures that no person shall be in enslavement, or in any forms of it.
Indonesia has a faith to protect the human rights.
Global Slavery Index 2013 states that Corruption weakens Indonesia‘s response to modern slavery.
182 However, to end the modern slavery practice, especially the forced labor practice, it needs government's attention to monitoring and to solve it.
The Indonesian Government Effort in Combating Forced Labor The preamble of UDHR 1948 that was adopted on 10 December 1948 states that recognition of the inherent dignity and of the equal and inalienable rights of all members of the 182 Walk Free Fondation, op.cit Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 81 Volume 2(S) No.
1 (2015) human family is the foundation of freedom, justice and peace in the world.
183 The concept of human rights is related to the ethics and morals.
184 Protecting human rights is not as easy as it seems.
It does not only need the government, but also the other people to protect human rights, starts from respect to others.
To end the practice of forced labor means giving back the human dignity of the labor force.
They will regain their lost desire and can build a better life.
It will make manifest of human equality.
Then there arose a question, how to put an end to this practice?
Over the past decade the Government of Indonesia has demonstrated a clear commitment to address human trafficking.
It all can be shown when Indonesia adopted Anti-Trafficking Law and also founded ―Task Force on Preventing and Handling Human Trafficking‖.
This task force functioned to advocacy, socialization, monitoring the protection of human trafficking victims, monitoring law enforcement, reporting and evaluating.
Besides that, The Indonesian government has been maximizing the task of the ministry of law and human rights and national police.
But even though Indonesian government has done so many things, the fact is combating forced labor is not easy.
There are some problems handling human trafficking in Indonesia.
Ledia Hanifa, member of the House of Representative Indonesia on her presentation stated that the sectorial budget bundling, lack of Number of Human Resources, and Insufficient Infrastructure are the main problems in handling human trafficking.
Then again, Indonesia has more than 17.000 islands so that the enforcement of the law will be so challenging because the central government is located in Jakarta.
Although the task force is made in every city in Indonesia, but the coordination between them will be really difficult if the government not monitoring regularly.
183 Malcom N. Shaw QC, Hukum Internasional, Bandung, Nusamedia, 2013, 261 184 Ibid Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 82 Volume 2(S) No.
1 (2015) Then what the government should do is to improve the regulation so that the laborer will be well-protected under the law.
Indonesia needs to amend the Act number 13 year 2003 on manpower and explain about slavery-like practices so that all companies will not make any space to do a modern-day slavery.
Governments should actively enforce the laws to ensure that all slaves, victims of forced labor, debt bondage and trafficking are free, and all slave holders, employer/enforcers and traffickers are prosecuted and required to pay damages to their victims.
Governments that ratify Conventions are obliged to incorporate them into their own laws and to make sure that these laws are applied and respected.
The International conventions were ratified by Indonesia related to the Modern Slavery Practice, but as the writer stated above that the Slavery Convention and Supplementary Slavery convention has not been ratified by the Government.
Indonesia should have to ratify those conventions so that Indonesia can implement it to national laws.
The government also needs to be regulated and monitoring regularly to make sure that the laws are enforced by the corporation.
Indonesian government also should make an agency which concern to report regularly that if there is a violation, especially if there is a practice of forced labor or all-kinds of slavery in Indonesia, Creating a National Action Plan for trafficking in person, Establish Integrated Services for Witnesses and / or Victims of human trafficking in the District / City.
Besides that, the Indonesian government should educate people since the factor of human trafficking caused by low education.
To change and even to end the practice of slavery, what governments should have to give to people is education about what the slavery is, what the slavery-like practices, and in what forms the slavery in modern-day.
When people educated about slavery, they at least will know whether they were treated like a slave or not and be reported to the government whether they are in a slavery condition or not.
Brawijaya Law Journal Contemporary Issues In South-East Asia Countries 83 Volume 2(S) No.
1 (2015) IV.
CONCLUSION Based on The Slavery Convention 1926 Article 1 (1), Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
Slavery in Indonesia is regulated under the forced labor practice has to end.
The government needs to ratify the slavery convention and the supplementary convention and implement those conventions in Indonesia.
Besides, The Indonesian government should have to amend the regulation which is regulating about forced labor, or modern slavery practices.
Indonesia also needs to educate people about slavery so they can know whether they are in slavery or not.
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1 (2015) *http://www.antislavery.org/english/slavery_today/what_is_modern_slavery.aspx Walk Free Fondation, 2013.
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DOI: http://doi.org/10.21776/ub.blj.2021.008.01.07 | 113 Childhood Statelessness: Critiquing International Norms and Enforcement Strategies Biju R K Faculty of Law, University of Calicut, India Email: rkb.rajamangalam@gmail.com Submitted : 2020-09-01 | Accepted : 2021-04-26 Abstract: Over the past decade, there has been renewed interest in and commitment to resolving the endemic problem of statelessness, most clearly exemplified by the United Nations High Commissioner for Refugees’ Global Action Plan to End Statelessness 2014-24, which sets out to end statelessness by 2024.
Despite the plethora of recent attention to questions of citizenship, its converse, the problem of statelessness and its effect on children, has not been adequately investigated.
This paper attempts to delineate the causes of childhood statelessness in particular and to analyze the international legal framework for reducing and preventing it.
It examines how statelessness is created, how it persists and why it brings with it the deprivations it does.
It then subjects the customary and modern international legal norms governing childhood statelessness and enforcement strategies at Global level to close scrutiny and identifies the clearly discernible drawbacks and road blocks.
It concludes with suggestions, inter alia, to make the jus soli citizenship a mandatory default clause in the citizenship laws of every country, to further prioritize birth registration and data collection and to strengthen the UPR process and reporting procedure.
Keywords: Childhood Statelessness, Citizenship, Jus Soli, Refugees.
I.
INTRODUCTION ‘Statelessness’ refers to a situation where ‘a person is not considered as a national by any State under the operation of its law’.1 In practical terms, statelessness 1 Article 1(1), Convention Relating to the Status of Stateless Persons, 360 U.N.T.S.
117 (28 September 1954).
For details on the interpretation of Article 1(1) of the 1954 Convention, see, UNHCR, Guidelines on the Definition of “Stateless Person” in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (20 February 2012).
2 ‘Nationality’ is commonly used as a synonym for ‘citizenship’, referring to a specific type of legal means having no nationality2 and thus no legal connection3 (vinculum juris4) with any State or in other words, belonging to nowhere.
Absence of such a legal bond makes a person a non-entity for purposes of bond between a person and a State.
Under some domestic contexts, nationality and citizenship can also have distinct meanings, but in this paper, the two terms are used interchangeably.
3 ‘Nationality’ has been defined by the International Court of Justice as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments’ [‘Nottebohm Case’ (Liechtenstein v. Guatemala)].
4 Meaning ‘bond of legal necessity’.
mailto:rkb.rajamangalam@gmail.com Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 114 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies law.5 This problem takes two conceptually distinct forms: (1) the lack of legal identity; and (2) the inability to prove the legal identity that one does have.6 The people who lack legal identity include both de jure and de facto stateless people.
De jure stateless are those who have no legal nationality at all.
De facto statelessness is the result of refusal of the State of nationality to afford protection to some of its nationals.
Inability to prove the legal identity, on the other hand, arises where people who are legal citizens lack the documents necessary to assert their legitimate claim to citizenship.
These are people whose birth, family affiliation, or connection to society is not registered or otherwise provable.
They may, despite their possession of nationality and a legal status, find themselves effectively stateless.7 These three classes of people together constitute the stateless population of the world today.
There are currently more than twelve million stateless people around the world of which approximately one third are children.8 Children are the most vulnerable human beings with a special need for legal protection.
But the human beings, 5 Paul Weis, ‘The United Nations Convention on the Reduction of Statelessness’ (1961) 11 International and Comparative Law Quarterly 1073.
6 Jacqueline Bhabha, ‘From Citizen to Migrant: The Scope of Child Statelessness in the Twenty-First Century’ in Jacqueline Bhabha (ed) Children Without a State – A global Human Rights Challenge (The MIT Press, 2011) 1.
7 Ibid.
8 Statelessness related statistics are not reported on a systematic basis, as States generally do not collect and publish precise data regarding stateless persons.
The given figure is as reported in UNHCR’s global statelessness statistics for 2017, published in June 2018 in its annual “Global Trends” report available at: <www.unhcr.org/globaltrends2017/.>.
This figure may be unreliable due to difficulty of definition and identification of statelessness, but it provides a general picture of the problem.
irrespective of whether children or adults, require a competent and powerful authority to oversee the protection of their rights and such authority is the State.
Citizenship is the means by which any human being acquires and exercises her rights as a member of an organized political community known as the State.
Without citizenship from anywhere, State protection is almost non-existent.9 That is the reason why authors like Hannah Arendt viewed the right to a citizenship as the ‘right to have rights.’10 Arendt, who herself was a stateless refugee for 18 years, believed that the supposed universalism of human rights could only be guaranteed through citizenship.
Statelessness, she argued, was tantamount to the loss of all rights including the right to be a human.
Though nationality does not, on its own, guarantee wellbeing or enjoyment of the constituent elements of a dignified human life, its absence is strongly correlated with serious rights violations and profound human suffering.11 Even though the right to citizenship, including that of children, is protected under international law,12 in the existing international legal regime it is still the See also, Institute on Statelessness and Inclusion, The World’s Stateless (December 2014) 6-7, 40-43 <http://www.institutesi.org/worldsstateless.pdf.>.
9 See, Frelick, B and M. Lynch, ‘Statelessness: a forgotten human rights crisis’, (2005) 24 Forced Migration Review 65.
<https://www.fmreview.org/sites/fmr/files/FMRd ownloads/en/sudan/frelick-lynch.pdf> 10 Hannah Arendt, ‘The Decline of the Nation-State and the End of the Rights of Man’ in The Origins of Totalitarianism (The World Publishing Company, New York: 1962) 267.
See also, Trop v. Dulles, 356 U.S. 86 (1958).
11 Jacqueline Bhabha, ‘The importance of nationality for children’ in Institute on Statelessness and Inclusion (ed.
), The World’s Stateless Children (Wolf Legal Publishers (WLP), 2017) 112.
12 The Universal Declaration of Human Rights (UDHR) provides a general right to nationality under article 15.
The international human rights treaties including the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR) as well as http://www.unhcr.org/globaltrends2017/.%3e Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 115 plenary power of a sovereign State to define ‘citizenship’ for purposes of its domestic jurisdiction and to provide for the regulatory framework necessary for granting the same.13 In many jurisdictions the legal means14 to gaining citizenship is either too complicated or expensive.
This renders children of migrants and refugees vulnerable to statelessness.
The importance of nationality for children overlaps but is not co-extensive with the importance of nationality for adults.15 If a child does not secure citizenship of a nation immediately upon or as soon as possible after birth, she may be left stateless with extremely severe consequences.
Statelessness in children has much more impact than that has in adults for a child’s early environment, physical, emotional and affective, has lifelong potential impacts on her wellbeing and functioning during adulthood.
Stateless children, through no fault of their own, inherit circumstances which provide them only with animal existence16 and uncertain future, and surrounded by a sense of worthlessness.17 As pointed out in a study report of Youth Advocate Program International: Lack of citizenship subjects children to significant threats to their safety and well-being.
Children without official papers are vulnerable to abduction, the Convention on the Reduction of Statelessness, provide particular norms with respect to the right to nationality for children.
13 Convention on Certain Questions Relating to the Conflict of Nationality Laws, opened for signature 12 April 1930, 179 LNTS 89 (entered into force 1 July 1937) art 1.
14 State’s legal instruments related to nationality can be the Constitution, a Presidential Decree or a citizenship Act and the legal means to gaining citizenship include the procedure prescribed thereunder.
15 Above n 11.
16 ‘To be stripped of citizenship is to be stripped of worldliness; it is like returning to a wilderness as cavemen or savages ...they could live and die without leaving any trace.’ (Arendt, above n 6) sale and trafficking, illegal adoption, and sexual exploitation.
Many more are living in slave-like conditions after being trafficked for labor or sexual purposes to other countries.
Unable to prove their true ages with legal documentation, stateless children cannot legally prove that they are too young to work or to serve in the military.
Many thousands of displaced, abandoned, abducted, lost and refugee children have been forced to participate as combatants in armed conflicts.18 In addition to these, statelessness is found to have a huge impact on the mental health of children and can lead to depression, alcoholism, domestic violence and suicide.19 Being stateless also means not being able to access many other basic rights available to citizens.
For stateless children, medical care may be less readily available or more costly than for others.
Children without birth certificates cannot be legally vaccinated in at least 20 countries.20 Education is usually limited or unavailable for stateless children.
Moreover, left unresolved, childhood statelessness will create new and insurmountable roadblocks for children as they move from childhood to adolescence and adulthood.
Despite the numerous international instruments providing for the right to 17 Feeling expressed by a stateless woman named Chen as cited in Philippe Leclerc and Rupert Colville, ‘In the shadows’, (2007) 147 Refugees 6.
<https://www.unhcr.org/enie/publications/refugeemag/46d2e8dc2/refugeesmagazine-issue-147-excluded-strange-hiddenworld-stateless.html>.
18 Sarah Aird et al., Stateless Children – Youth who are without citizenship (Youth Advocate Program International, 2002) 7.
19 Constantin Sokoloff and Richard Lewis, Denial of Citizenship: a challenge to human security (European Policy Centre, 2005) 22.
20 Maureen Lynch and Melanie Teff, ‘Childhood statelessness’, (April 2009) 32 Forced Migration Review 32.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 116 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies nationality of a child, including the Convention on the Rights of the Child (CRC),21 the International Covenant on Civil and Political Rights (ICCPR),22 and the Convention on the Reduction of Statelessness,23 the problem of childhood statelessness continues to grow gradually.
The status of children who are stateless or atrisk of statelessness has become a critical humanitarian issue, especially as there appears to be no resolution to this problem until present.
There is general consensus that preventing statelessness is better than trying to resolve statelessness that has already arisen.
This involves identifying the causes of statelessness and prescribing binding legal norms for its immediate reduction and ultimate eradication.
Thus, this paper seeks to analyze, in the context of the global campaign to end childhood statelessness by 2024,24 the principal circumstances in which children find themselves without any nationality and to critically evaluate the adequacy and efficacy of existing international norms relating to the right of every child to a nationality.
This paper analyzes the question as to how and on what principle can it be legally ensured at the international level that children are provided with a nationality at birth.
II.
LEGAL MATERIALS AND METHODS The methodology adopted in this paper is the normative juridical method.
It is also analytical, descriptive and qualitative.
The data utilized for this doctrinal study is based on primary and secondary sources.
Primary 21 Article 7.
22 Article 24 (3).
23 Articles 1 to 4.
24 In October 2013, the UN High Commissioner for Refugees called for the ‘total commitment of the international community to end statelessness.’ The Global Action Plan to End Statelessness: 2014 – sources are relevant international legal instruments including conventions, customary norms as evidence of general practice accepted as law, general principles of law recognized by civilized nations and case law.
Such sources of primary authority which have been referred to include the Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930 Hague Convention), Universal Declaration of Human Rights (1948), Convention Relating to the Status of Refugees (1951), Convention Relating to the Status of Stateless Persons (1954), Convention on the Reduction of Statelessness (1961), International Covenant on Civil and Political Rights (1966), American Convention on Human Rights, "Pact of San Jose", Costa Rica (1969), Convention on the Rights of the Child (1989), African Charter on the Rights and Welfare of the Child (1990), Covenant on the Rights of the Child in Islam (2005), European Convention on Nationality (1997), InterAmerican Program for Universal Civil Registry and the “Right to Identity” (2008), Prevention and Reduction of Statelessness and Protection of Stateless Persons in the Americas (2014) and relevant judgements of the International Court of Justice.
Secondary sources include books, journals, and reports conducted by UN High Commissioner for Refugees (UNHCR) and non-governmental organizations (NGOs).
Extensive survey of available literatures has been undertaken and upon careful and critical scrutiny of the same the conclusions have been drawn and presented followed by suggestions.
2024, developed in consultation with States, civil society and international organizations, sets out a guiding framework made up of 10 actions that need to be taken to end statelessness by 2024.
<https://www.unhcr.org/statelesscampaign2014/G lobal-Action-Plan-eng.pdf> Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 117 III.
RESULT AND DISCUSSION Causes of Childhood Statelessness A variety of reasons have been identified25 as responsible for the steady increase in the number of stateless children.
But it is to be noted that the causes of statelessness around the world are remarkably consistent.
Foundlings left without a nationality because of the lack of familial ties or evidence of birthplace is one of the oldest statelessness problems which States have sought to address by concluding international agreements.26 For a large number of children, statelessness is a direct result of their parents’ stateless status, as many countries around the world observe a jus sanguinis nationality regime, whereby citizenship is granted only to those children whose parents are recognized citizens.
Another reason for statelessness is conflict between the citizenship laws of different countries.
Membership in one State may carry a different set of rights and obligations, within a different legal framework, than does membership in another State.27 In cases of marriage between persons 25 See, for instance, Marilyn Achiron, Nationality and Statelessness: Handbook for Parliamentarians No 22 (Inter-Parliamentary Union/UNHCR, 2nd ed, 2014) 3, 3; Laura van Waas, Nationality Matters.
Statelessness under International Law, (Antwerp/Oxford/Portland, Intersentia, 2008); Jacqueline Bhabha, ‘From Citizen to Migrant: The Scope of Child Statelessness in the Twenty-First Century’ in Jacqueline Bhabha (ed) Children Without a State – A global Human Rights Challenge (The MIT Press, 2011; Kristy A Belton, ‘Statelessness: A Matter of Human Rights’ in Rhoda E HowardHassmann and Margaret Walton-Roberts (eds), The Human Right to Citizenship: A Slippery Concept (University of Pennsylvania Press, 2015) 31, 36-40; Jeffrey L Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’, (1998) 19 Michigan Journal of International Law 1141; Sophie Nonnenmacher and Ryszard Cholewinski, ‘The Nexus between Statelessness and Migration’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under of different nationalities, conflict can arise between nationality laws, leaving children stateless.28 Again, the hitherto unprecedented scale of migration of families across the borders, especially forced or undocumented migration, adds complexity to the question of access to citizenship.
Many governments fail to realize their obligations towards forced migrant children.29 The nationality laws of some States terminate citizenship upon completion of continuous residence abroad for a specified period, while some other States stipulate that nationality cannot be transmitted indefinitely to successive generations living abroad.
In these situations, children of later generations face the risk of statelessness which assume greater proportion if the host State does not grant jus soli citizenship to children born in its territory.
Technical flaws in nationality laws can also cause statelessness, for example when a person is required to renounce her original nationality before being able to apply for a new nationality.
In such cases, if naturalization does not occur and there are no other protections in place, she is left stateless.
International Law (Cambridge University Press, 2014) 247, 249-50; Paul Weis, Nationality and Statelessness in International Law (Kluwer Academic Publishers Group, Dordrecht: 1979) 215; Gerard-René de Groot, Children, their right to a nationality and child statelessness (Cambridge University Press 2014); Michelle, Foster et al, ‘Part One: The Prevention and Reduction of Statelessness in Australia An Ongoing Challenge’ (2017) 40 Melbourne University Law Review 456, 458.
26 The 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws had already set out, under Article 14, a safeguard for children of unknown parents and foundlings.
27 Jeffrey L. Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’, (1998) 19 Michigan Journal of International Law 1141.
28 This is in spite of the provisions of the 1957 Convention on the Nationality of Married Women.
29 Jo Boyden, ‘The Statelessness of the World’s Children’, (2007) 21 Children & Society 237.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 118 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies Plugging such gaps in laws and policies that may cause statelessness at birth among children has been pointed out as a key area to be addressed in order to prevent statelessness.30 Sometimes children are stateless because they have difficulties in proving their links to a State.
Lacking birth registration and birth certificates creates such a risk.
Children may not be registered because parents fear drawing attention to their own status.
A child can also become stateless when a birth record is destroyed or lost and there is no other means to link them with a particular country.31 Problems also occur on a large scale in practice when the father refuses to recognize the child as his own or to take action to register the child with the authorities of his country.
Discrimination,32 for example, on the basis of ethnicity, race, religion or gender, is yet another major cause of statelessness globally.
The UN Human Rights Committee has consistently stressed the importance of non-discrimination in addressing the right of every child to a nationality.33 In this regard, gender inequality is most serious where discriminatory nationality laws deny mothers the right to pass their nationality on to their 30 UN High Commissioner for Refugees and ASEAN Intergovernmental Commission on Human Rights, Report of the ASEAN Regional Workshop on Statelessness and the Rights of Women and Children (19 November 2011) 11.
<http://www.refworld.org/docid/50f674c42.html> 31 Maureen Lynch and Melanie Teff, ‘Childhood statelessness’, (April 2009) 32 Forced Migration Review 31.
32 For a legal definition of ‘discrimination’, see, para 7, UN Human Rights Committee, General Comment No.
18: Non-Discrimination, UN Doc CCPR/C/GC/18 (10 November 1989).
33 See for instance, para 8, Human Rights Committee, General comment No.
17: Article 24 (Rights of the child) (29 September 1989).
34 ‘In many places, gender-based discrimination disproportionately impacts individuals from marginalised ethnic or religious groups, especially when the authorities have discretion to grant children.34 This is a particular problem in about 25 countries around the world,35 and can also arise when a child is born to parents from different countries, or where the father is unknown36 or refuses to acknowledge the child.
As rightly pointed out by Catherine Harrington:37 States may have legitimate concerns regarding the acquisition of citizenship.
However, such concerns can and must be addressed without resorting to discrimination, including on grounds of sex, as required under international human rights law.
Unfortunately, many authorities and elected officials are unaware of their State’s international legal obligations.38 Political rifts and conflicts leading to the establishment of new States may also create childhood statelessness.
State succession can leave people without a nationality, for example where the original State of nationality dissolves leaving a person without the nationality of the new State.
Solving existing cases of statelessness that have already been created by changes in political geography and forestalling new cases in the event of future situations of state succession are tough challenges that the nationality to the children of women citizens only in “exceptional” circumstances’ [Institute on Statelessness and Inclusion, The World’s Stateless Children (Wolf Legal Publishers (WLP), January 2017) 497-98] 35 UN High Commissioner for Refugees (UNHCR), Background Note on Gender Equality, Nationality Laws and Statelessness 2020 (14 July 2020) 2.
36 For example, as a result of rape.
37 Campaign Manager of the Global Campaign for Equal Nationality Rights, an international coalition led by organizations including the Women’s Refugee Commission, the Institute on Statelessness and Inclusion, and the Office of the United Nations High Commissioner for Refugees.
38 Catherine Harrington, ‘Campaigning for gender equality in nationality laws’ in Institute on Statelessness and Inclusion, The World’s Stateless Children (Wolf Legal Publishers (WLP), January 2017) 499.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 119 international community faces in addressing statelessness.39 In some countries, law may also not protect against statelessness in the context of adoption or surrogacy, or allow for the deprivation or loss of nationality of children.40 While there are countries without safeguards that protect against childhood statelessness, other countries have partial safeguards, conditional on the fulfilment of unreasonable criteria.
Even in countries with full safeguards, implementation can be discriminatory and/or ineffective.41 Thus, from the foregoing it follows that broadly three types of childhood statelessness can be distinguished.
Firstly, children who are the victims of conflict of laws or administrative malfunction; secondly, victims of directly discriminatory laws and policies and finally, children affected by state succession.
Norms of Customary International Law on Statelessness It is true that States have the sovereign right to determine the policy, procedures and conditions for acquisition and termination of citizenship, but State sovereignty in relation to nationality matters is subject to certain limitations through norms set by international law.
Nowadays, the scope of such limitations is on the increase and what was once conceded to be in the exclusive discretion of States has become the target of human rights activism.
States have started perceiving statelessness as a broad human 39 Institute on Statelessness and Inclusion (ISI), The World’s Stateless (Wolf Legal Publishers, January 2014) 24.
40 Institute on Statelessness and Inclusion (ISI), The World’s Stateless Children (Wolf Legal Publishers (WLP), January 2017) 160.
41 Ibid.
42 According to Article 38 of the Statute of the International Court of Justice, “international custom, as evidence of a general practice accepted as law”, is one of the sources of international law.
rights issue rather than as a mere ‘technical problem’.
States are now obligated to prevent statelessness and to take actions to resolve existing cases.
Such obligation to protect stateless persons and to reduce statelessness is derived not only from international instruments dealing explicitly with this issue but from norms of customary international law also.
Customary international law refers to international obligations arising from general international practices,42 as opposed to obligations arising from formal written conventions and treaties.
It reflects the psychological need for pattern and regularity on the part of the States.43 In contrast to compliance by individuals with domestic laws on the ground of fear of the authority of law and sanctions, compliance with international law depends on the recognition by States that they should comply.
Thus, it is the widespread and consistent State practice and opinio juris44 that constitute the corpus of customary international law.45 There are fundamental norms under customary international law evolved for tackling the problem of statelessness which are binding on all States.
The prohibition qualifies as a norm of customary international law because it has been consistently viewed as a matter of concern for the international community as 43 Daniel M. Bodansky, ‘The Concept of Customary International Law’ (1995) 16(3) Michigan Journal of International Law 667.
44 Opinio juris denotes a subjective obligation, a sense on the part of a State, that it is bound by the norm in question.
45 International Law Commission, Identification of Customary International Law: Text of the Draft Conclusions Provisionally Adopted by the Drafting Committee, UN Doc.
A/CN.4/L.872 (2016) 1.
<http://legal.un.or/lc> Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 120 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies expressed in various UNGA resolutions46 which raise presumption in favour of opinio juris.
Many great scholars of public international law have also concluded that customary international law secured the right to a nationality and prohibited the creation of statelessness and that a person who is not otherwise a national of any State must be considered national of the State in which he was born.47 Apart from the above stated norms of ‘right to a nationality’ and ‘duty to avoid statelessness’, there is another principle of equal importance which is the ‘norm of nondiscrimination’.
The duty not to discriminate is the international human rights law principle of equal treatment that bears directly on the issue of nationality.
The norm prohibits discrimination in law or in fact in any field regulated and protected by public authorities, which are imposed on States in regard to their legislation and the implementation thereof.
Governmental actions, everywhere in the world, shall be in conformity with the norm of nondiscrimination.
The emergence of the norm of non-discrimination in international law has been duly noted by the International Law Commission in its deliberations.48 International law is thus evolving on the issue of statelessness from the negative function of limiting the competence of States in the conferral of nationality towards the imposing of positive obligations on States to grant nationality in accordance with the genuine effective links of the persons concerned.
Such affirmative obligations, 46 For example, see UNGA Res.
50/152, 51/75, 62/125, 63/149, 64/129, 65/193, 66/135, 67/149, 67/150 etc.
47 William Thomas Worster, The Presumption of Customary International Law: A Case Study of Child Statelessness (December 21, 2017) 6.
<http://dx.doi.org/10.2139/ssrn.3091912> developed during the past fifty years, find expression in the general norms of right to a nationality, duty to avoid statelessness, and nondiscrimination.
The importance of the recognition of these principles as norms of customary international law lies in the fact that they will then bind the States without having the need for any contractual basis.49 But what makes the domestic application of a customary international norm problematic is that its evidentiary basis is so loose that it provides excessive discretion for States to claim violations by others or defences for themselves.
The existence of consistent State practice and opinio juris, the objective and subjective elements necessary for constituting a customary norm is practically difficult to establish.
Furthermore, where such a norm is applied by a court, it provides excessive discretion to the court.
Many scholars therefore dismiss customary international law as increasingly irrelevant and prefer to have positive legislative instruments in place for effectively addressing the problem of childhood statelessness.
Modern International Legal Regime Concerning Childhood Statelessness The evolution of international legal framework on childhood statelessness has been along two tracks: one to protect and assist those individuals who were already stateless, and the other to try to eliminate, or at least to reduce, the incidence of 48 Jeffrey L. Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’ (1998) 19(4) Michigan Journal of International Law 1141.
49 The limited number of States Parties to the 1954 and 1961 Conventions all the more underlines the importance of general human rights obligations relating to the right to a nationality.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 121 statelessness.50 The 1930 Hague Convention,51 held under the auspices of the Assembly of the League of Nations, was the first international attempt to ensure that all persons have a nationality.52 The opening article of the Convention mandates that the States, while exercising their right to determine their citizens, shall conform to the relevant provisions of international law.53 The Permanent Court of International Justice (PCIJ) had, as early as in 1923, stated in its Advisory Opinion on the Tunis and Morocco Nationality Decrees that, ‘the question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations.’54 Nationality, which is in principle a subject matter within domestic jurisdiction, was thus held to be governed also by rules of international law to the extent of the limitations imposed on State discretion by obligations undertaken towards other States.
It was this theme that was incorporated in the 1930 Hague Convention.
Subsequently in the post-war period, the 1948 Universal Declaration of Human Rights (UDHR)55 which is now considered as customary law binding on all countries,56 declared under Article 15, out of the particular interest of the international 50 Marilyn Achiron, Nationality and Statelessness Handbook for Parliamentarians (Inter Parliamentary Union and UNHCR, 2nd edn, 2014) 8.
51 Convention on Certain Questions Relating to the Conflict of Nationality Laws, opened for signature 12 April 1930, 179 LNTS 89 (entered into force 1 July 1937).
52 Above n 50.
53 Article 1 reads: ‘It is for each State to determine under its own law who are its nationals.
This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’ 54 Advisory Opinion No.
4, Nationality Decrees Issued in Tunis and Morocco, (1923), Permanent community in declaring a minimum set of inalienable and indefeasible human rights, that everyone has the human right to a nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Here it is noticeable that Article 15 of the UDHR does not prescribe the specific nationality to which a person is entitled.
In order, therefore, to ensure that individuals are not deprived the rights associated with nationality, the international community designed two main treaties, namely the 1951 Convention relating to the Status of Refugees (1951 Refugee Convention) and the 1954 Convention relating to the Status of Stateless Persons (1954 Convention).
The principles contained in these conventions have been further elaborated upon and reinforced by other treaties, jurisprudence, and state practice.57 Since many of the refugees are stateless also, the interrelation between the two conventions is apparent.
The provisions of the 1954 Convention are, in many respects, similar to those of the 1951 Refugee Convention.58 However, due to the special situation of refugees, the 1951 Refugee Convention contains specific reference to non-penalization for unlawful entry and to Court of International Justice (7 February 1923) 23.
55 GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
56 Sarah Aird et al, Stateless Children Youth Who are Without Citizenship (Youth Advocate Program International, 2014) 3.
57 Carol A. Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 156-182, 156.
58 This is because the 1954 Statelessness Convention was originally intended to be a Protocol to the 1951 Refugee Convention and both the conventions address similar rights with a few distinctions.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 122 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies the principle of non‑refoulement.59 These principles are not contained in the 1954 Convention.
As such, if a person qualifies for both refugee and stateless status, the State is expected to apply to her the more favourable provisions of the 1951 Refugee Convention.60 In 1950, the International Law Commission (ILC) commenced the process of drafting what emerged later as the 1961 Convention on the Reduction of Statelessness (1961 Convention).61 The 1961 Convention is the only universal instrument that elaborates clear, detailed and concrete safeguards to ensure a fair and appropriate response to the threat of statelessness.
The purpose of the Convention, as set out in its Preamble, is ‘to reduce statelessness by international agreement’.
It obliges contracting States to grant nationality to persons born in their territory who without such nationality would not be recognized by any State as a national, and would thus be ‘otherwise stateless’.
It gives contracting States several alternatives including automatic acquisition of its nationality upon birth in its territory, acquisition of nationality at an age determined by domestic law or acquisition on application if certain conditions are fulfilled.
It requires States parties to adopt nationality legislations that 59 Non-refoulement is a principle of international law which prohibits States from expelling or returning a refugee or asylum seeker to a territory where there is a risk that her life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.
(Article 33, Convention relating to the Status of Refugees, 1951).
60 Above n 52, 11.
61 Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).
62 International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965) 660 UNTS 195 (entered into force 04 January 1969).
reflect prescribed standards relating to the acquisition or loss of nationality.
But it neither prohibits the possibility of deprivation of nationality under certain circumstances, nor requires States to grant citizenship to all currently stateless persons.
The 1965 Convention on the Elimination of All Forms of Racial Discrimination,62 obliges States to “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” particularly in the enjoyment of several fundamental human rights, including the right to nationality.63 The right of every ‘child’ to acquire a nationality has been specifically set out for the first time in the 1966 International Covenant on Civil and Political Rights (ICCPR).64 Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),65 addresses discrimination against women in nationality laws, one of the major cause of statelessness.
The 1989 Convention on the Rights of the Child (CRC),66 which has been ratified by almost all States,67 defines a ‘child’ as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.’68 With regard to nationality, it contains three important 63 Ibid Article 5.
64 International Covenant on Civil and Political Rights (ICCPR) (1966) 999 UNTS 171 (entered into force 23 March 1976) Article 24.
Article 26 of the ICCPR also sets out a non-discrimination clause which applies very broadly, including to nationality legislation and how it is implemented.
65 Convention on the Elimination of All Forms of Discrimination Against Women (1979), 1249 UNTS 13 (entered into force 3 September 1981).
66 Convention on the Rights of the Child, (1989) 1577 UNTS 3 (entered into force 02 September 1990).
67 Except USA and Somalia.
68 Ibid Article 1.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 123 articles articles 2, 7 and 8.69 Read with Article 24 of the ICCPR, these provisions imply that it is not acceptable to postpone the right to acquire a nationality until a person reaches the age of eighteen years.70 Here also, it is particularly important to note that, neither the ICCPR nor the CRC indicate which nationality a child may have a right to, nor do they guarantee that the nationality is acquired at birth.
Jaap Doek, former Chairperson of the UN Committee on the Rights of the Child (CRC Committee) has commented that ‘the drafters could have adopted the jus soli approach rather than providing that ‘all necessary measures are taken to prevent the child from having no nationality.’71 In 1996, the UN General Assembly recognised the prohibition of arbitrary deprivation of nationality as a ‘fundamental principle of international law.’72 From 1997 onwards, resolutions on ‘Human Rights and the Arbitrary Deprivation of Nationality’ have been adopted periodically by the 69 Article 2 stipulates that: ‘States Parties shall respect and ensure the rights set forth in the… Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.’ Article 7 states that: ‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.’ Article 8 (1) provides that: ‘States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
70 Gerard-Rene de Groot, Children, their right to a nationality and child statelessness (Cambridge University Press 2014) 146.
71 Jaap Doek, ‘The CRC and the Right to Acquire and Preserve a Nationality’ (2006) 25 Refugee Survey Quarterly 26–32, 26.
72 UN General Assembly, Resolution 50/152: Office of the United Nations High Commissioner for Refugees (9 February 1996), para.
16.
Commission on Human Rights and the Human Rights Council.
In addition to these global instruments, several regional instruments also contain provisions on the nationality rights of children to reinforce its legal basis.73 Although the record of ratification of relevant international instruments varies, the great majority of States are parties to one or several of these treaties that guarantee the right to citizenship.
Moreover, the right of every child to a nationality has also been recognized and further elaborated through the decisions of regional human rights courts and committees.74 Doctrinal Foundations of National Citizenship Regimes75 Even though norms of customary international law as well as provisions of international legal instruments recognize the right to a nationality of all members of the human family including children, ascriptive and functional criteria for citizenship vary 73 For example, the 1969 American Convention on Human Rights; the European Convention on Nationality (1997); the African Charter on the Rights and Welfare of the Child (1990); Covenant on the Rights of the Child in Islam (2005); InterAmerican Program for Universal Civil Registry and the “Right to Identity” (2008); Prevention and Reduction of Statelessness and Protection of Stateless Persons in the Americas (2014) etc.
74 See, Inter-American Court of Human Rights case of Yean and Bosico v. Dominican Republic (8 September 2005, available at: http://www.refworld.org/docid/44e497d94.html.
); the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) case of Children of Nubian descent in Kenya v. Kenya (22 March 2011, available at: http://www.refworld.org/docid/4f5f04492.html.
); the European Court of Human Rights case of Mennesson v. France [26 June 2014, available at: http://acerwc.org/?wpdmdl=8606 (FR).
75 The expression ‘citizenship regimes’ is used in the sense of institutionalized systems of formal and informal norms that define access to membership, as well as rights and duties associated with membership, within a polity.
http://www.refworld.org/docid/4f5f04492.html Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 124 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies significantly across the world.
Since it is still the State’s prerogative to define its own citizenship, it is the domestic citizenship laws that currently determine which links between the child and the State should be reflected in the formal bond of citizenship.
There is no common standard or fundamental principle in this regard.
Generally, it can be seen that two sharply differing legal principles govern automatic citizenship-attribution rules in the present-day world: the jus soli (right of soil) rule of citizenship and the jus sanguinis (right of blood) rule.
By the doctrine of jus soli, a person acquires citizenship of the country where she is born irrespective of the citizenship of her parents.
By the doctrine of jus sanguinis, on the other hand, a person acquires the citizenship of her parents irrespective of the place of her birth.
Thus, unlike the right of the soil, jus sanguinis is based on ethnic grounds rather than the territory.
Naturalization is a third legal method for acquiring citizenship.
It is the process of acquiring citizenship after birth.
Whereas birthright attribution of citizenship, either by way of jus soli or by jus sanguinis, is involuntary and ascriptive, naturalization is a voluntary process.
It requires express consent of the individual and acceptance by the State to which she migrates.
International law does not express a preference for any one of the above principles for granting birthright citizenship over the other.76 Since researches have mostly been focused on various aspects of immigration policies and citizenship, a systematic analysis of birthright citizenship is lacking.
But it is pertinently clear that it is in the ‘best interests of the child’ to acquire a nationality at or very soon after birth.
So far 76 Indira Goris et al, ‘Statelessness: what it is and why it matters’ (2009) 32 Forced Migration Review 4. as regards the question as to which State bears the responsibility for granting nationality to a child born stateless is concerned, there is no single, definitive answer for the time being.
Some States follow one rule almost to the exclusion of the other, and the ensuing conflict of laws create problems of statelessness among children.
Some other States follow a hybrid of these principles which also may result in conflict, chaos and confusion.
This points to the urgent need to have a uniform rule for fixing States’ responsibility to grant nationality to stateless children.
According to the provisions of both the 1954 Convention and the 1961 Convention, the solution for statelessness is to look to the State with which the individual has a genuine and effective link.
Such link may be birth on the territory, descent, residence or marriage to a national.77 However, the link should not be based on discriminatory grounds like race, colour, gender, religion or political opinion.
When we consider which of the permissible links is the most effective one in ensuring that no child is left stateless, it seems jus soli is preferable to apparently ethnic jus sanguinis and other grounds.
If we are concerned with providing children with the protections that come with citizenship status at birth, the most efficient way to do this is to grant them citizenship of the country where they are born, without exceptions.
The advantages of practicing such unconditional jus soli, with standard exceptions for children born to foreign diplomats or other State representatives and foreigners in transit, are manifold.
Because newborns have no control over the actions of their parents, jus soli citizenship creates a 77 U.N. Secretary-General, Arbitrary Deprivation of Nationality: Report of the Secretary-General, U.N. Doc.
A/HRC/10/34 (Jan. 26, 2009) para 62.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 125 guarantee that children will have some form of national citizenship they can call their own.
No questions need be answered on behalf of the child about ethnicity, culture, or status.
This eliminates the possibility of a child being victimized by a culture because of who or what her parents happen to be.
Moreover, in view of the human rights obligations of States, the State within whose territory a child is born will have to ensure her fundamental human rights and for that purpose attribution of nationality would be desirable.
Territorial birthright citizenship has the further benefit of allowing the children of unauthorized migrants to grow up and to participate fully in the life of their country of birth and to continue residence as citizens so as to make de jure statelessness comparatively rare.
Another obvious scenario for which it is vital to have a provision for nationality by jus soli is where the parents are stateless.
In that case, birth on the territory can provide a simple way to establish which State should provide citizenship.
In the Nottebohm Case,78 the International Court of Justice (ICJ) has confirmed that birth in a territory is one of the important connections underlying the ‘genuine link’ test for nationality.79 After conducting an elaborate survey of authorities, Worster, in his article published in 2019,80 asserted that a specific norm has emerged under international law which 78 Liechtenstein v. Guatemala [1955] ICJ Rep 1 (6 April 1955).
79 William Thomas Worster, The Presumption of Customary International Law: A Case Study of Child Statelessness (December 21, 2017) <http://dx.doi.org/10.2139/ssrn.3091912> 80 William Thomas Worster, ‘The Obligation to Grant Nationality to Stateless Children Under Customary International Law’ (2019) 27 Michigan State International Law Review 441.
81 The use of the mandatory ‘shall’ in Article 1 of the 1961 Convention (“Such nationality shall be granted…”), indicates that a Contracting State requires the State where the child was born to grant nationality to it, if it would be otherwise stateless and no State has granted it nationality.
It is also to be noted that the right of every child to acquire a nationality and the principle of the best interests of the child together create a presumption that States need to provide for the automatic acquisition of nationality at birth by an otherwise stateless child born in their territory, in accordance with Article 1(1)(a) of the 1961 Convention.
Providing for a discretionary naturalization procedure for otherwise stateless children is not permissible under the 1961 Convention.81 Enforcement Strategies at the International Level Statelessness is not merely a legal problem; it is a human problem.82 So far as children are concerned, the problem is bigger than ‘just’ a child rights issue and a range of strategies must be adopted as part of an effective international response.
If every child has the right to a nationality, how is that right to be realized, how is nationality to be ascribed are the questions to be answered.
Even though article 24 of ICCPR and other relevant provisions of international instruments guarantee the right to acquire a nationality, there is no specification by which time this right has to be implemented and what procedure is to be adhered to for enforcing the remedies guaranteed.
must grant its nationality to otherwise stateless children born in their territory where the conditions set forth in Article 1(2) and incorporated in their application procedure are met.
82 Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 156, 159.
A similar observation can be found in Paul Weis, ‘The United Nations Convention on the Reduction of Statelessness, 1961’ (1962) 11 International and Comparative Law Quarterly 1073, 1090.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 126 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies Article 11 of the 1961 Convention on the Reduction of Statelessness provides for an agency to help individuals and States to clarify nationality issues and to advise on how to avoid the creation of statelessness.83 This role was subsequently assigned to the United Nations High Commissioner for Refugees (UNHCR) when the Convention came into force.84 The duties of the UNHCR with regard to statelessness include identifying cases of statelessness, reducing statelessness, preventing statelessness, and providing assistance to stateless persons.
UNHCR’s involvement may be triggered when there are indications that an individual or population could be stateless.
UNHCR will generally also need to become involved where there is a risk of future statelessness due to such factors as gaps in legislation, administrative hurdles to acquisition or confirmation of nationality, or State succession.85 Where causes of statelessness relate to constitutional provisions or nationality legislation, UNHCR Field Offices can proactively provide advice on international standards and how they may be implemented at the national level.
For this purpose, Field Offices may invoke the 1961 Convention and its obligations with State parties.
In States which are not parties, the 1961 Convention can be used as a yardstick to identify gaps in nationality legislation and 83 Article 11 calls for the establishment of ‘a body to which a person claiming the benefit of this Convention may apply for the examination of his or her claim and for assistance in presenting it to the appropriate authority’.
84 General Assembly resolutions 3274 (XXIV) and 31/36 designated UNHCR as the body mandated to examine the cases of persons who claim the benefit of the 1961 Convention and to assist such persons in presenting their claims to the appropriate national authorities.
Subsequently, the United Nations General Assembly conferred upon UNHCR a global mandate for the identification, prevention and reduction of statelessness and for the international protection of stateless persons.
to advise governments on measures to prevent and reduce statelessness.
In the specific case that a national constitution is being adopted or amended, Field Offices and other UN agencies may draw on the 2009 Guidance Note of the Secretary-General: United Nations Assistance to Constitutionmaking Processes.86 However, despite all these provisions, the actions of UNHCR are likely to be compromised by virtue of its status as an intergovernmental body that renders it subject to the twists and turns of political interests.
For example, UNHCR can maintain a presence in any given country only through the invitation of the host government.87 These structural considerations limit significantly UNHCR’s scope for action.
The UN Committee on the Rights of the Child (CRC Committee) also works closely with State Parties and UN Agencies, in monitoring the implementation of the Convention on the Rights of the Child (CRC) and its Optional Protocols.
As the UN treaty body mandated to interpret and monitor States Parties’ compliance with the CRC, the works of the CRC Committee is central to gaining a better understanding of States Parties’ obligations under Article 7 of the CRC.
Although the Committee has commented on relevant issues in all regions and across a range of themes, it has not yet See, UNGA resolutions A/RES49/169 of 23 December 1994 and A/RES/50/152 of 21 December 1995.
The latter endorses Executive Committee Conclusion No.
78 (XLVI) – 1995.
85 UNHCR Action to Address Statelessness: A Strategy Note, March 2010, available at: https://www.refworld.org/docid/4b9e0c3d2.html 86 UN Secretary General (UNSG), Guidance Note of the Secretary-General: United Nations Assistance to Constitution-making Processes, April 2009, available at: http://www.unhcr.org/refworld/docid/4b8648b52.
html.
87 Jo Boyden, ‘The Statelessness of the World’s Children’, (2007) 21 Children & Society 237.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies | 127 been able to achieve consistency in addressing recommendations on the same challenges to all relevant States.88 There may be different reasons for this, but it demonstrates the need both for there to be greater awareness among all stakeholders of the issues which the Committee considers to fall within the scope of Article 7 of the CRC and greater capacity of these stakeholders to engage with the Committee on problems that occur in respect of these issues, across different countries.89 Given the significant challenges that are faced around the world in realizing children’s right to acquire a nationality and ending childhood statelessness, there is real scope for the further, structural promotion of general measures of implementation on this issue.
In particular, it must be noted that the Committee has not yet made relevant recommendations on resource allocation, participation of civil society and international cooperation.90 Given that the 1954 and 1961 Conventions have been ratified by few States and are not monitored by associated UN treaty monitoring bodies, it is difficult to enforce human rights standards delineated in these two treaties.
Furthermore, the treaty bodies mandated to monitor the Convention on the Rights of the Child and the Covenant on Economic, Social, and Cultural Rights, give less focus to the provisions related to statelessness embedded in the two treaties.
It is in this context that the role played by civil society actors including Non-Governmental Organizations (NGOs) and National Human Rights Institutions (NHRIs) in promoting the national-level implementation of international human rights norms, including 88 Institute on Statelessness and Inclusion (ISI), Addressing the right to a nationality through the Convention on the Rights of the Child A Toolkit for Civil Society (ISI, June 2016) 16. child rights becomes crucial.
Because of their ability to get close to the affected persons, they are in a better position to understand what barriers exist with respect to the full realization of particular rights and to provide useful information on the impact of laws, policies and practices.
They can transmit necessary data on children’s access to nationality, standards accepted and interpretations of child rights across national mechanisms to UN bodies.
Such information can, in turn, help international monitoring bodies to engage in an effective and wellinformed dialogue with States about the implementation of their international obligations.91 IV.
CONCLUSION AND SUGESTIONS Action 2 of the UNHCR Global Action Plan to End Statelessness 2014-24 calls on States to ensure that no child is born stateless.
Fortunately, childhood statelessness is by no means an unsolvable problem.
The foregoing discussion reveals that, within the realm of international human rights law, there is broad recognition of the child’s right to acquire a nationality, but there are variations in the manner in which this right is formulated.
There is also limited guidance on how the right is to be exercised.
There is no uniform doctrinal basis for birthright citizenship attribution.
In this regard, it is suggested that there shall be a guarantee in every State legislation to the effect that nationality can be acquired on the principle of jus soli (place of birth).
Such clear choice for a default jus soli rule and constitutional recognition of the principle for the mandatory granting of nationality to children who would otherwise 89 Ibid.
90 Ibid 18.
91 Ibid 19.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 128 | R K Childhood Statelessness: Critiquing International Norms and Enforcement Strategies be stateless seems to be the only plausible solution for the problem of childhood statelessness.
Here, it is important to note that such a safeguard can be introduced into national law without changing or undermining a State’s main doctrinal approach to nationality.
The need for improved data on children’s access to nationality, as well as on the scale and impact of childhood statelessness, is an area that must be further prioritized.
For this purpose, universal birth registration is a sine qua non.
Even though the rules set out in the 1961 Convention will apply regardless of whether a child’s birth is registered, registration of birth, which is a right of the child under the CRC and the International Covenant on Civil and Political Rights, will provide a clear evidence for resolving disputes.
The requirement under Article 7 of the CRC for registration of births of all refugee children through the same procedure applicable to nationals should also be strictly complied with.
Another measure that is needed to prevent and resolve childhood statelessness is the coordinated, focused and ceaseless efforts on the part of UN Human Rights Bodies.
Such Bodies shall strengthen the Universal Periodic Review (UPR) process and ensure simplified State Party reporting to the UN Treaty Bodies including the CRC Committee.
They shall also require from State Parties quantitative and qualitative data and shall issue recommendations and doctrinal guidance for addressing gaps in law and practice wherever found necessary.
Collective and committed international action involving States, UN Agencies and civil society actors is thus essential to ensure that the right of every child to acquire a nationality is effectively safeguarded and childhood statelessness is eradicated.
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DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.09 | 273 Victimization of Women in Prisons: A comparative analysis of India and Indonesia Parula, Luvleenb a School of Law, UPES, Dehradun, Uttarakhand, India Email: parulraj1999@gmail.com b School of Law, UPES, Dehradun, Uttarakhand, India Email: luvleenabrol@gmail.com Submitted : 2020-08-31 | Accepted : 2020-09-28 Abstract: Prisons have become a world of their own, and women are its new citizens.
There have been many studies on incarcerated as a result of the growing numbers of women in prisons, and feminist studies.
The on-going reconstruction of literature on this subject has given rise to a new question as to whether we should consider women in prisons, as victims in need of protection, or has this narrative changed?
Even with the development of international and municipal legal instruments and agencies for the protection of incarcerated women, there have been various instances where women are victimized in prisons.
Both India and Indonesia are part of different international treaties and enacted several laws but lack a systemized prison system to ensure their overall protection.
This paper unfolds as follows: The first section delves into the conceptual development of the sexual rights of women in the international sphere, focusing specifically on women in prisons.
Subsequently, the second section analyzes in detail various studies, article, and news reports on the subject of sexually abusive treatment of women inmates offering a brief overview of the concerns in India and Indonesia.
The methodology adopted for this paper is primarily doctrinal, for the comparative analyses of the rights available to women inmates under various national and international legal instruments.
Keywords: sexual rights; sexual victimization; incarcerated women; physical & mental health; constitutional rights.
I.
INTRODUCTION Initially, prisons came into existence as an alternative to barbaric physical punishments or public punishments, and had an inherent purpose of disciplining and controlling the bodies and impacting their 1 M. Foucault, Discipline And Punish (New York: Vintage Books, 1995) souls instead of torturing the bodies.
1 but they soon became what can be called ‘Necropolitics’.
The etymology ‘Necropolitics’ as described by Mbembe, can be understood as “the generalized instrumentalization of human existence and mailto:parulraj1999@gmail.com mailto:luvleenabrol@gmail.com 274 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia the material destruction of human bodies and populations”.2 Prisons effectuate the death of one’s social life by depriving the prisoners from political (right to stand in elections, right to vote), cultural (right to perform cultural rites and performances), and personal life (right to have or meet family, freedom to marry, right to have sexual pleasures).
They also catalyze deaths, as a result of inadequate medical and health facilities and sanitary conditionsespecially for women as their needs vastly vary from those of a man in prison.
Prisons are made by men for men and women are stuck in ‘His’ world.
There are comparatively fewer researches on female prisoners as compared to those on male prisoners.
Until recently, criminologists mostly usually focused on male prisoners.
Pollock (1994) questioned that whether women experience equal treatment in the criminal justice system.3 By taking a brief look at history, we can conclude that the prisons were initially designed to incarcerate men, and the inclusion of women was a poor set up.
Their needs as well as experiences in prisons differ entirely from those of men; and the correctional programs and treatments that were usually designed for men failed to serve their purpose as gendered, social, and individual response to women’s needs.
Among the other important issues that women face in prisons, the most ignored one by administrators, prison authorities, policy 2 A. Mbembe, ‘Necropolitics’ (2003) 15(1) Public Culture <https://warwick.ac.uk/fac/arts/english/cu rrentstudents/postgraduate/masters/modules/postc ol_theory/mbembe_22necropolitics22.pdf> 3 Stephanie S. Covington and Barbara E. Bloom, ‘Gendered Justice: Women In The Criminal Justice System’ (2003) Carolina Academic Press https://www.stephaniecovington.com/asset s/files/4.pdf .
makers, scholars and the media is the that of sexual violence against prison inmates.
Sexual Violence, as defined by World Health Organization in a World report on Violence and Health, “any sexual act or attempt to obtain any sexual act or unnecessary sexual comments or advances or acts to traffic or against the person’s sexuality using any kind of coercion done by any person regardless of their relationship with the victim at any place not limiting to home and work”..4 Sexual violence is the prime component of Necropolitics in prisons.
The first ever study on sexuality of women inmates was conducted in 1900s (Otis1913), where homosexual relationships of incarcerated women were criticized and called as a perversion.5 It was observed that such acts were done by inmates for enthrallment, and fun, consequently leading to the same sex relationships.
In his study he majorly focused on the issues of race, homosexuality, and dominance of a black girl over a white girl.
This was later reversed and stated that race is not an important factor in the dominance of sexual relationships.
Subsequent to Otis, there were many studies conducted on prisoners' sexual relationships and their consequences, but the main subject of focus was violent sexual relationships.
Only few of such relationships were consensual and most of it were forced 4 Who.Int <https://www.who.int/violence_injury_prevention /violence/global_campaign/en/chap6.pdf>.
5 Margaret Otis, ‘A Perversion Not Commonly Noted’ (1913) 8(2) The Journal of Abnormal Psychology https://psycnet.apa.org/doiLanding?d oi=10.1037%2Fh0073016.
https://www.stephaniecovington.com/assets/files/4.pdf https://www.stephaniecovington.com/assets/files/4.pdf https://psycnet.apa.org/doiLanding?doi=10.1037%2Fh0073016 https://psycnet.apa.org/doiLanding?doi=10.1037%2Fh0073016 Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 275 and was put under the category of prison rape.
Furthermore, in a documentary by Jonathan Schwartz, it was found that the right to penetration which was symbolically the part of hyper-masculine environment was considered as the ultimate indication of domination among the male prison populations.
Angela Davis brought the issue in front of the world about how dominance of one in a same sex relationship affects the nature of violence by the officials in prisons.6 The dominating one in the same sex relationship usually faces verbal or physical abuse, whereas the submissive one experiences sexual abuse.
The over-powering of one another in a sexual relationship sometimes leads to sexual violence or nonconsensual sex, which comes under the ambit of prison rape.
Prison rape has been defined differently by different states.
It has been viewed in terms of between inmates, or between inmates and prison workers, and sometimes during conjugal visits.
In some jurisdictions, the permission for conjugal visits are allowed only to the inmates with good behaviors, or for married couples, and some allow only for domestic partners.
7 In modern times, countries such as Canada, Germany, Russia, Spain, Belgium, SaudiArabia, Denmark have allowed conjugal visits; and countries like US, Brazil and Israel even allow same sex conjugal visits.
Different types of sexual interactions occur in Prisons.
Prison rape, usually 6 Angela Y. Davis and Cassandra Shaylor Source, ‘Race, Gender, and the Prison Industrial Complex: California and Beyond’ (2001) Vol.
2, No.
1 pp.
1-25 https://www.jstor.org/stable/40338793 7 Tomer Einat and Sharon Rabinovitz, ‘A Warm Touch In A Cold Cell’ (2012) 57(12) International Journal of Offender Therapy and Comparative Criminology.
committed either by the prison handling authorities or by co-prisoners has two possible contentions – first, to satisfy the over sexual needs and desires which by selfpleasure are not fulfilled; and the second, is to show dominance and manifest power, in order to create fear in the minds of other prisoners.
This fear often restrains inmates from reporting the rape; And even if the complaint was lodged by any such victim, most reports are trivialized, thus making prison life traumatic for the victims.
In 2003, for the first time, The United states government had made a major breakthrough for the protection of prisoners from sexual violence.
The enormous pressure laid by the human rights groups made the US house of representatives and Senate pass the Prison Rape Elimination Act (PREA) for the protection of prisoners from sexual violence.
The report released by Human Rights Watch NO ESCAPE: Male Rape in U.S.
Prisons, in 2001 contributed most to the PREA’s passage two years later.8 This issue of prison rape did not only get the attention at national level through press but also opened the way for new scope of understanding and eliminating the issue.
The contribution of media to the U.S. government’s initiative proved very constructive and influenced many other nations thus made them follow the same path.
II.
LEGAL MATERIALS AND METHODS 8 Brenda V. Smith, ‘Side By Side Comparison Of Standard To Address Prison Rape: National Prison Rape Elimination Commission Standards And Proposed Standard Of U.S. Department Of Justice For Adult Prisons And Jails’ (2011) SSRN Electronic Journal.
https://www.jstor.org/stable/40338793 276 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia This article draws upon two kinds of Doctrinal research as legal methodology: 1.
Discursive material on the development of scope of sexual rights especially in relation to prisons 2.
Comparative analysis of different Constitutional provisions, Penal provisions, welfare statutes constituting the rights of women prisoners, International conventions as well as academic and semi-activist documents.
To begin with, internet resources such as the websites of Human Rights Watch, United Nations, along with news reports and articles on the subject of sexual violence in prisons in both India and Indonesia, were closely examined in order to collate material on welfare practices.
This initial study was used to develop an understanding of the subject, and the early outlines of the arguments and answers presented later in the paper.
There upon, the empirical data were re-examined and selected as per their value in substantiating the arguments.
In General, reports of international conventions regarding sexual victimization in prisons provided the most comprehensible articulations that are of interest to this paper.
The international and regional documents, treaties declarations, statutory provisions of the Indian and Indonesian legal system such the Constitution, Penal Code, and the studies and reports of the different committees for the protection of women prisoners along with the laws related to the penitentiary system of the Republic of Indonesia have been referred to, examined and studies as the primary sources.
Other secondary sources such as books, journals, media including print media, have also been examined.
Authoritative internet has been studied and analyzed thoroughly.
Statistical data on prisons have been interpreted with the help of graphs and pie charts.
A thorough analysis of India on this subject has been supplemented with reference to extensive principles established by the Judiciary and reports of Commissions which have been incorporated in the administration of the criminal justice system; While on the other hand the analysis of Indonesia on the same subject is, for the most part, based on news reports, commission report, and existing legislations and policies.
III.
RESULTS AND DISCUSSIONS Sexual rights as human rights Human rights are universal, basic, and inalienable in nature.
Every human being is born with such rights and it cannot be taken away by any state practice.
They are available to all human beings irrespective of their race, caste, creed, sex, religion, or personal beliefs.
Sexual rights are intrinsic to human rights.
Sexual rights as a concept has always been a part of human conscious and got a broader platform when terms like sexual and reproductive health, sexual and reproductive rights were started being used by various international organizations in the late 1970’s.
Prior to 1990’s no international instrument had encompassed the sexual rights within it as an integral part of human rights.
Sexual rights can be understood as the series of entitlements related to one’s sexuality which flows from the codified and uncodified principles of human rights in terms of sexuality and sexual relationships.
While deliberating upon the question of sexual rights of women, it is imperative perceive the issue dynamically, and include the aspects of sexual and reproductive health, in order for better framing of policies on the subject, and also increasing public awareness Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 277 as an outcome of crystallization of sexual rights as fundamental or rudimentary for the state.
The National Human Rights Commission (NHRC) investigated nationally on the human rights standards in the context of reproductive and sexual rights and concluded that as reproductive and sexual health are two distinct concepts but are overlapping concerns to study.
There must be some clear understanding of these different approaches on which health providers and women health advocates are working, which can possibly result in the practice of medicine as an instrument in context with women empowerment and understanding of women sexual rights.
There is an affirmative need of sexual rights for women to exercise their citizenship fully and claim the protection against human rights violation.
9 Fried and Lewis (2000) found two forms of information: personal stories from various tribunals and got women testified about the violations against them and gathered a detailed study on the sexual rights discussed through documents and debates at (Cairo, 1994) International Conference on Population and Development and The UN Fourth World Conference on women.
10 For example, liberty to decide to carry or terminate the pregnancy.
All such principles of human rights emerge from the 1974 Universal Declaration of Human rights followed by 1979 Convention on the Elimination of All forms of Discrimination against Women.
In international law as well as municipal law 9 Diane Richardson, ‘Constructing Sexual Citizenship: Theorizing Sexual Rights’ (2000) 20(1) Critical Social Policy.
10 Susana T. Fried and Ilana Landsberg-Lewis, ‘Sexual Rights: From Concept to Strategy,’ in K. Askin and D. Koenig (eds.)
Women's Human Rights Reference Guide (New York: Transnational Press, 2000), pp.
91-122. there are so many conventions, statutes, precedents, rules, and customs related to the protection of women and children.
There are charterbased bodies like Human Rights Council, earlier known as Commission for Human rights which through Universal Periodic review keeps all the member countries well informed about each other's human rights records and directly reports any such violations to the UN General Assembly during the state practices. Moreover, right against torture is protected under ICCPR and CAT and all the signatories have implemented their provisions in their domestic laws.
U.N. Committee Against Torture monitors CAT.
Human Rights Committee monitors ICCPR.
Both the committees recognize sexual violence in detention centers.
The ICCPR has provided that all people, including prisoners also, have different civil and political rights and no such person shall be tortured or subjected to cruelty, inhuman or degrading treatment or punishment.11 The CAT enormously focuses on this right and mandates the nations who have ratified it to take strict actions in preventing acts of torture within their jurisdictions.
Regional conventions, national constitutions and criminal laws contain the principles of human rights and imposes state’s duty in protecting and promoting it.
Moreover, Individuals can also file complaints under UNHR treaties in case if there is any such violation as a result of state practices like in the case of KL vs Peru12, the 11 International Covenant on Civil and Political Rights opened for signature 16 December 1966 (entered into force on 23 March 1976, 999 UNTS 171 (entered into force on 23 March 1976) art 7 12 ‘OHCHR | Peru Compensates Woman In Historic UN Human Rights Abortion Case’, Ohchr.Org https://www.ohchr.org/EN/NewsEvents/Pages/Pe ruAbortionCompensation.aspx .
https://www.ohchr.org/EN/NewsEvents/Pages/PeruAbortionCompensation.aspx https://www.ohchr.org/EN/NewsEvents/Pages/PeruAbortionCompensation.aspx 278 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia most notable decision in the history of sexual rights by an International organization came which made government accountable for non-availability of the legal termination services.
At the national level, Constitutions, precedents set by the Constitutional or other decision-making bodies or apex Courts and national as well as state legislations incorporates the principles of sexual rights in the society.
The state is not only bound to end any form of discrimination and promote awareness but is also obliged to scrutinize the efficiency of the legislations in all spheres of life.
Thus, creating a three-tier obligation of respect, protect and fulfil rights.
13 The impact of the Universal Declaration of Human Rights is huge including on the Constitution of India.
The preamble of the Constitution enshrines the ideals of human rights such as the dignity of an individual, social justice.
It has also been recognized in Part IV of the Indian Constitution as Fundamental Rights.
Part IV, i.e., Directive Principles of State policy directs the state to uphold human rights.
On the other hand, in Indonesia human rights are recognized in Part XA of the Constitution, Article 28 A to 28J ha a very important role in protection, promotion and fulfilment of Human Rights.
Article 39 of the Constitution of India provides the right to opt for free legal aid.
This right protects women from being misquoted and harassed and seek legal assistance without any financial constraints.
Also, Article 21 of the Indian Constitution implicitly provides Right to Privacy.
This right protects the dignity of sexually by hiding the identity of the victimized women, especially when she 13 A. Miller, E. KismÃdi, J. Cottingham, & S. Gruskin, ‘Sexual rights as human rights: A guide to authoritative sources and principles for applying human rights to sexuality and sexual chooses to file a complaint from any prejudice or interference in her daily life by society.
Victimization in Prisons Prisons have become an invisible component of the society and lives of prisoners are not valued much is a fact which leads to the ignorance of the state protections for them.
Custodial misconducts like verbal abuse, rape threats, denial of goods and facilities, over-supervisions, sexual abuse, use of threat or violence are very common (Amnesty International USA, 1999; General Accounting Office, 1999; Human Rights Watch Women’s Rights Project, 1996).
For example: women prisoners are asked to strip their clothes if they want to get the goods they wished for.
The International Covenant for Civil and Political Rights provides Article 6 emphasizes on the Right to Life which covers various other rights like right to safe and healthy environment, right to proper medical services, right to bodily integrity and autonomy etc.
as one of the human rights and it can never be taken away from any human being even if he is in prison, and this right must be protected by law.
Lord Macaulay thought about the reformation of Indian Prison System to provide just and humane conditions for prisoners and later Mulla Committee 1983 recommended the same and suggested rehabilitation for prisoners.
States are obliged to guarantee the legal protection to all vulnerable classes of the society and ensure their social, physical, and psychological well-being.
health’ (2015) 23 (46) Reproductive Health Matters, 16-30.
<https://www.jstor.org/stable/26495862> Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 279 In general, women are disguised as weak and vulnerable, and women in prison are more vulnerable to exploitation at the hands of authorities.
We need to critically evaluate the services and facilities in the women prisons as with their growing numbers in the limited capacity of prisons, it will lead to more competition for survival among women, rising the chances of custodial violence by the staff.
These services should analyze the special requirements and be altered as per the different backgrounds of the women that include factors such as poverty, race, gender inequality, issues related to marriage and family as well as the personal factors which individually affect the women in the criminal justice system.
Personal and psychological factors actuate more depending on the environment of the prisons thus making structuralizing the prisons, a significant variable.
Creating a gender-responsive service will be a prodigious step in overshadowing the past environments of the prisons and it is indispensable to structuralize the site where women should be kept, selection and training of the staff, and tailor programs, owing to the realities of their lives over and above mitigating the needs of the individual participants.14 According to data recorded by the National Crime Records Bureau as shown in fig.
1, there were 19,242 women inmates at the end of 2018.
Out of which Uttar Pradesh had the highest number, i.e., 3,533 of women in prison, followed by West Bengal with 1,506: Maharashtra having 1,336 and then Madhya Pradesh having 1,322.
In India, there are only 24 jails in 15 states and union territories (UTs) established for women with the total capacity of 5593 which currently holds around 3243 whereas the rest of states and UTs do not have separate jails for women.15 Figure 1: Data of Female inmates from National Crime Research Bureau India 2018 On the Other hand, in Indonesia, total number of prisons and detention centers are 421 and only 9 out of them incarcerate women and children.
In the year of 2020, total number of female prisoners are 12,131 14 Gendered Justice (n 3).
which is the 5.2% of total population of the prisons and 4.5% Female prison population rate per 100,000 of national population.
The population of women in prisons are less than men but as per the study of Ministry of 15 National Crime Records Bureau, Prison Statistics India Executive Summary (2018) (3).
0 2000 4000 6000 8000 10000 12000 14000 N u m b e r o f fe m a le i n m a te s States Highest Number of female inmates in Indian states 280 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia Justice and Human Rights in the year 2009, the release rate is far less than that of men.
In Indonesia, the data released by Ministry of Women's Empowerment and Child Protection of the Republic of Indonesia does not specify the violence in prisons.
It has published the data of violence against males and females and not related to third genders.
The total number of cases of violence against women are 7646.
It is a big draw back that the ministry did not publish the data as to what all will include in the ‘other’ places of incident.16 And number female victims according to place of incident are: Figure 2: Data from Ministry of Women's Empowerment and Child Protection of the Republic of Indonesia Sanitation and Hygiene Many female prisons do not even provide basic facilities like sanitation and hygiene.
The National Prison Manual suggested having one toilet and one bathing cubicle for every 10 prisoners which are rarely seen reality.17 Women bathrooms and toilet should be made with safe entrances and built-in secure areas away from male interaction, but this is not always the case seen.
Also, there is a lack of sufficient amount of water in prisons for women which worsen the situations for sanitation and hygiene.
Even reports of 16 ‘SIMFONI-PPA’, Kekerasan.Kemenpppa.Go.Id https://kekerasan.kemenpppa.go.id/ringkasan.
17 Bureau of Police Research and Development, Model Prison Manual for the Superintendence And Management Of Prisons In India (2013).
prisoners are evidence that they are not able to have a bath for multiple days.
It is highly recommended to periodically cleanse with disinfectants in the prisoner's accommodations by workers, but it is often found that inmates themselves cleanse their toilets and bathrooms.
It has also been required by state’s prison manuals to provide a minimum number of clothes and undergarments to each woman prisoner according to climate and hygiene standards, but it was found that prisoners have only limited stock of clothes and did not get the opportunity to wash their clothes regularly.
57,50% 1,50% 22,40% 4,60% 13,90% 0,10% Female victims by place of incident Households Workplace Other School Public Facilities Institute of Crash Courses https://kekerasan.kemenpppa.go.id/ringkasan Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 281 According to Prison Statistics Report, 2018 (India), many women prisoners belonged to the menstruating age group ranging from 18 to 50 years.
They should be facilitated with proper sanitary conditions and menstrual hygiene products.
18 There is an urging need for strict implementation of State and National Prison Manuals along with the regular inspections from municipal and international autonomous bodies without any wrongful interferences.
Medical Treatments In the Indian Constitution, Directive Principles of State Policy guide the state and provide a fundamental base to Right to Health that includes accessible healthcare to everyone.
Separate Hospitals for every ward have been recommended by the National Prison Manual.
Comprehensive Health Screening such as tests to detect any sexually transmitted or blood-borne disease, concerns related to mental health, and the presence of any drugs has also been recommended.
And all the prisoners must be vaccinated while entering the premises along with diligent care to elderly people and prisoners who are drug addicts.
Imprisonment not only negatively affects physical health but also leaves a strain on psychological health.
The initial shock is the severance of ties from their families.
Many women have cases of substance abuse and sudden withdrawal impacts their health very crucially and, in that situation, living within four walls with a stranger makes the whole experience more traumatic.
They were usually worried about who will be taking care of their families or children, anxious about what conditions will be in the prisons which 18 National Crime Records Bureau, Prison Statistics India Executive Summary (2018).
can lead to anxiety, epileptic seizures, and self-harm.
Besides spending on health concerns, the prison administration should also focus on the fact that many of the prisoners enter the prison with the preexisting physical and psychological condition which needs intervention.
In India, Lady medical officers are appointed for the care of women prisoners.
Provisions in the National Prison Manual provides inspection of prisoners and regular counselling and psychotherapy.
Women prisoners dealing with mental illness are not given proper facilities because of which, according to the report by National Crime Records Bureau there have been 360 deaths of women prisoners due to mental illness in India.
19 Women prisoners with treatments of post-traumatic stress disorder or any other kind of mental illness should not be kept with other inmates and be given accommodation separately under an observer or in mental health hospitals.
Prisoners must be provided with adequate care and attention especially those dealing with health-related problems including mental, physical, sexual, and reproductive issues.
In case of an emergency, prison authorities must be mandatorily trained to provide first aid.
Right to privacy and dignity, right to medical confidentiality and right not to share information should also be extended to incarcerated women.
Even though rules are inscribed in State manual, the female prisons are not entitled to proper hospitals with lady medical officers especially gynecologists.
Women prisoners in Indonesia have also been found facing various medical issues as shown in fig.3.
The formal facilities 19 National Crime Records Bureau, Prison Statistics India Executive Summary (2018).
282 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia for such issues were only clinics in prisons which had very few numbers of doctors and nurses, and usually, each prison had only one doctor or one nurse for the visit and some prisons didn’t have any doctors or nurses for the inmates (Ministry of Justice and Human Rights, 2014).
Figure 3 Data from Int J Prison Health 20 Pregnancy and Child Rearing Women in their post-natal phase should be given separate and proper accommodation for at least one year after delivering a baby to maintain their standard of hygiene and for the protection of baby from infections and other diseases.
The Supreme Court of India had issued guidelines in 2006 regarding children in prisons.
21 Before sentencing a pregnant woman, the authorities must ensure basic minimum facilities considering prenatal, natal, and postnatal issues for them.
As per the law in Indonesia, women can keep their babies with them in prisons until they are two years of age 22 but there is no formal structure or special facilities to take care of them and usually prisons adopt an informal system 20 Amala Rahmah et al, ‘The Health Of Female Prisoners In Indonesia’ (2014) 10(4) International Journal of Prisoner Health.
21 R.D.
Upadhyay vs State Of A.P.
& Ors (1999) SC 2183 where block/cell leader will provide the goods/facilities as per the needs of that particular block/cell inmates.
Pregnant women should be provided with better diet, proper examinations by gynecologists in the Government Hospitals.
Arrangements should also be made for temporary release of women for the delivery of babies in hospitals and not in the prisons as well as suspension of sentence must be considered.
Women in solitary confinements: Solitary Confinement is used as punishment and for exacerbating the mental illness.
Solitary Confinement is psychologically very disturbing especially for the prisoners who have preexisting 22 ‘Laws On Children Residing With Parents In Prison’, Loc.Gov (Webpage, 2014) https://www.loc.gov/law/help/children-residingwith-parents-in-prison/foreign.php .
69,50% 40,60% 34,70% 23% 23% 33,30% 27,50% 4% 5,80% 5,80% 2% Medical issues faced by women in prisons of Indonesia Headaches Sore back Cough or flu problems with their digestive tract pruritus or scabies excessive menstrual pain irregular menstruation vaginal bleeding https://www.loc.gov/law/help/children-residing-with-parents-in-prison/foreign.php https://www.loc.gov/law/help/children-residing-with-parents-in-prison/foreign.php Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 283 mental illness.
The isolation and absence of normal life can further contribute to psychological deterioration.
Pregnant women or postpartum prisoners should be sent to solitary confinement only in very extreme situations or circumstances.
It hampers availability of the important health care services which pregnant women has otherwise right to get.
Women are usually embarrassed to request medical help or hesitate for such services from correctional officers because these requests require intimate medical information.
Women in solitary confinement experiences the high rate of physical or sexual abuse and traumas as they are forced to be in conditions where they are under surveillance for 24 hours of authorities.
Human rights organizations totally condemned the presence of male officers to supervise women prisoners because presence of them can reinforce the feelings of vulnerability in women and can again retraumatize those who have violent history.
Their presence increases the risk of sexual violence at the sites.
Instances of force, misusing of restraints, abuse of power, and sexual abuses by male officers increases in solitary confinement as these cells are separated and cannot be detected easily by anyone.
The vulnerable population should never be kept in Solitary confinementlike pregnant, postpartum prisoners, prisoners having mental health issues, or any other health problems because they may be exacerbated in isolation.
Prisoners sentences 23 Unni Krishnan & Ors.
v. State of Andhra Pradesh & Ors [1993] SCR (Supreme Court of India) 24 Sunil Batra v. Delhi Administration [1979] SCR (1) 392 (Supreme Court of India) 25 Washington Post, https://www.washingtonpost.com/news/worldvie ws/wp/2017/06/28/an-inmate-was-brutallyto solitary confinement should undergo mental and medical health check us by practitioners before and during their stay.
Prisons should be regularly and publicly inspected and monitored by special authorities.
According to Supreme Court Right against solitary confinement comes under Article 21 of the Constitution i.e.
Right to Life23 and states that keeping a prisoner in solitary confinement for a long period would lead to physical and mental ill health.24 Excerpts from the news reports of India and Indonesia Many cases regarding sexual violence happened to women when they face criminal officer both in India and Indonesia.
For examples: 1) June 2017, India: On June 24, 2017, female inmates rioted because a woman inmate died the previous day in the custody.
A witness described that she heard the screams of the deceased as her legs were forcefully opened and a stick was shoved into her vagina by female guards in the prison after she complained about the availability of food to them.25 2) April 2019, India: Superintendent of Jail, a woman police personnel and some prisoners were inquired in the case of sexual harassment as a woman prisoner at Muzaffarpur’s Shahees Khudiram Bose Central Jail, India alleged them for not only sexually harassing her but her daughter as well.26 3) October 1989, Indonesia assaulted-in-an-indian-prison-sparking-a-riot-butmedia-coverage-has-turned-her-death-into-afootnote/ .
26 ‘Woman Prisoner Alleges Sexual Harassment By Jail Superintendent’, The Asian Age (Webpage 4 April 2019) <https://www.asianage.com/india/allhttps://www.washingtonpost.com/news/worldviews/wp/2017/06/28/an-inmate-was-brutally-assaulted-in-an-indian-prison-sparking-a-riot-but-media-coverage-has-turned-her-death-into-a-footnote/ https://www.washingtonpost.com/news/worldviews/wp/2017/06/28/an-inmate-was-brutally-assaulted-in-an-indian-prison-sparking-a-riot-but-media-coverage-has-turned-her-death-into-a-footnote/ https://www.washingtonpost.com/news/worldviews/wp/2017/06/28/an-inmate-was-brutally-assaulted-in-an-indian-prison-sparking-a-riot-but-media-coverage-has-turned-her-death-into-a-footnote/ https://www.washingtonpost.com/news/worldviews/wp/2017/06/28/an-inmate-was-brutally-assaulted-in-an-indian-prison-sparking-a-riot-but-media-coverage-has-turned-her-death-into-a-footnote/ https://www.washingtonpost.com/news/worldviews/wp/2017/06/28/an-inmate-was-brutally-assaulted-in-an-indian-prison-sparking-a-riot-but-media-coverage-has-turned-her-death-into-a-footnote/ https://www.asianage.com/india/all-india/140419/woman-prisoner-alleges-sexual-harassment-by-jail-superintendent.html 284 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia Mrs Suhani, 28, was arrested on October 11, 1989, was arrested as she was caught during shoplifting.
She was taken to the police station in Pasar Minggu where she was raped by three policemen.
Her family was asked by the police to pay off Rp.
79,950 (about $50) to settle the case.
When she tried to complain against them, she was forced to say that it was consensual.27 4) May 1989, Indonesia Rustamat, 29, was arrested for stealing ten kilograms of tangerines from a neighbour.
After 52 days in the custody of the police, he died.
His wife made a statement that she was offered by a police officer to have a sexual relationship with him in return of a less statement for her husband.28 5) December 2019, Indonesia: On December 06, 2019, two police officers had been investigated for sexual harassment of a woman prisoner at Papua Police headquarters in Jayapura which was then confirmed by Papua Police chief Insp.
Gen. Paulus Waterpauw.29 Legal Instruments on Rights of Incarcerated Women: A comparative Study 1) National Instrument Constitution of any country is the grundnorm, and all the powers, rights, and liabilities flow from it.
It is the base for any state policy or law.
In this part, we have critically analyzed the different articles of the india/140419/woman-prisoner-alleges-sexualharassment-by-jail-superintendent.html>.
27 Human Rights Watch, Prison Conditions in Indonesia, Report, (1990) 77.
28 Ibid 25.
29 Police Officers Accused Of Sexually Harassing Prisoner In Indonesia, Asiaone (Web Page) <https://www.asiaone.com/asia/police-officersaccused-sexually-harassing-prisoner-indonesia>.
Indonesian and Indian constitutions and their relevance with the rights of women prisoners against sexual harassment.
a) India: The protection for women in prison under India national regulation regulate in many aspects.
Prisoner rights have been protected under the Constitution of India and Prisons Act, 1894.
Prisoners are entitled to every fundamental right inscribed in the Constitution which cannot be curtailed because of their status in the society unless explicitly reduced by the legal setup.30 Additionally, Article 14 of the Indian Constitution states that “the state shall not deny to any person equality before law or the equal protection of the laws within the territory of India”.
31 This Article is very important as it can be interpreted to end discrimination and encourage equality among different prisoners.
Moreover, Article 15 empowers the state to prevent discrimination based on religion, race, caste, sex, place of birth or any of them32 and Article 19 grants freedom to all citizens of the country.
Some of the freedoms because of their nature are not allowed to the prisoners while they are in prisons however, the right to speech and expression, nondiscrimination which is mentioned under those articles persists with them.33 Then, Article 21 states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law”.34 This article specifies 30 State of Andhra Pradesh v Challa Ramkrishna Reddy [1989] AP 235.
31 Constitution Of India Article 14.
32 Constitution of India Article 15.
33 Constitution of India Article 19.
34 Constitution of India Article 21. https://www.asianage.com/india/all-india/140419/woman-prisoner-alleges-sexual-harassment-by-jail-superintendent.html https://www.asianage.com/india/all-india/140419/woman-prisoner-alleges-sexual-harassment-by-jail-superintendent.html https://www.asiaone.com/asia/police-officers-accused-sexually-harassing-prisoner-indonesia https://www.asiaone.com/asia/police-officers-accused-sexually-harassing-prisoner-indonesia Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 285 two concepts, right to life and right to liberty.
This article is for all the citizens including prisoners.
There are various rights within the ambit of article 21 which are available to prisoners: i.
Right of inmates to have a safe environment.35 ii.
Right to have a free trial.36 iii.
Right to have free legal aid.37 iv.
Protection against custodial violence and death.38 v. Right to life with human dignity.39 Besides the Constitution, other rights provided to prisoners are: i.
Right to meet their friends.40 ii.
Right against solitary confinement and protection from torture.41 There are also various provisions in the Prisons Act, 1894 that talk about the reformation of prisoners such as: i.
Providing accommodation and sanitary conditions to prisoners.42 ii.
Providing shelter and safe custody.43 iii.
Medical examination of prisoners by qualified medical practitioners.44 iv.
Separation of prisoners according to their gender or type of crimes.45 These rights are for the protection of both men and women.
They are equally provided with all facilities according to the Constitution of India and Prison Act, 1894.
Moreover, Crimes against the body and 35 Upendra Baxi v State of UP [1983] 2 SCC.
36 Rattiram v. State of M.P.
(2012) 4 SCC.
37 M.H.
Hoskot v. State of Maharashtra (1978) 3 SCC.
38 D.K.
Basu v. State of W.B.
(1997) 1 SCC.
39 Jeeja Ghosh v. Union of India (2016) 7 SCC.
40 Sunil Batra v. Delhi Administration [1980] SC 1579.
41 Prem Shankar Shukla v. Delhi Administration (1980) SC 1535.
42 Prisons Act 1894 (India) s 4. women have been penalized under Indian Penal Code, 1860.
On the other hand, section 294 talks about the conduct of any person making any obscene acts in any public place or singing obscene songs to annoy shall be punished for the imprisonment for the term of up to 3 months or fine or even both.46 Section 354 A of the code addresses sexual harassment whether by any physical contact or conduct involving sexual overtures.47 Section 354 B: outraging the modesty of a woman: includes the offence of an assault or using any criminal force against the woman or abetting her to disrobe or get naked.
48 All these provisions are related to the offence committed by man against women.
Only a man can be punished under this part.
Moreover, Section 354 D talks about the offence called stalking and it constitutes a woman continuously followed or contacted by someone either online or in-person where she clearly shows no attention in that.
This section is an exception to an act of stalking done by the person when he is legally authorized to do so.49 The section 375 constitutes rape of a woman, if a man commits any sexual intercourse without her consent, by fraud, force or in fear violating her privacy her sanctity.50 It also explains how any act can constitute to rape like inserting of a finger or any object in the mouth, vagina or anus of a woman will also be included in it and it 43 Prisons Act 1894 (India) s 7.
44 Prisons Act 1894 (India) s 24(2).
45 Prisons Act 1894 (India) s 27.
46 Indian Penal Code 1860 (India) s 294.
47 Indian Penal Code 1860 (India) s 354A.
48 Indian Penal Code 1860 (India) s 354B.
49 Indian Penal Code 1860 (India) s 354D.
50 Indian Penal Code 1860 (India) s 375.
286 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia doesn’t confine itself to the penile-vaginal intercourse only.
Then, Section 376 has the punishment for rape which can be extended to life imprisonment or capital punishment.51 Section 376 also includes rape by police officer committed within the limits of a police station where he is appointed, or in the premises of any station house, may or may not be situated in the police station where he is appointed, and the woman was in the custody of that police officer or any officer subordinate to him.52 Public Servant includes the prison authorities also, putting prisoners in confinement and committing any sexual act.53 An act would be rape if a person supervising the management or the jail, remand home or any place of custody established by law for women takes advantage of his official position.
Section 509 if someone utters any word or makes any gesture intends to insult the modesty of a woman and intrudes her privacy.
The offender is punished with simple imprisonment for the term which may extend to three years and can be combined with fine also.54 Critically analyzing the provisions of Indian Penal Code 1860 that though there are provisions for the women protecting them from sexual harassment but the word ‘modesty’ has not been defined anywhere.
As per the Justice Verma Committee Report, 51 Indian Penal Code 1860 (India) s 376.
52 Tuka Ram And Anr vs State Of Maharashtra (1979) 1 SCR.
53 Indian Penal Code 1860 (India) s 24.
54 Indian Penal Code 1860 (India) s 509.
55 Lalu Jumaidi, I. Nyoman Nurjaya and Zainal Asikin, ‘Legal Protection For Prisoners For A Conditional Exemption In The Perspective Of Human Rights’ (2017) 8(1) Mediterranean Journal of Social Sciences.
56 Pasal 28 A Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (Indonesia).
there is a need to include more specific acts which can be covered under section 509 such as acts or gestures creating unwelcoming threat or fear of sexual nature.
The word obscene has also not been defined anywhere yet and has been used differently as per the instances of the case.
b) Indonesia: The Constitution of Indonesia, 1945 and Pancasila recognize and incorporate human rights.
55 Part X and XA of the Constitution talks about the citizens and their fundamental rights.
It could be seen such as: i.
Right to life has been enshrined under Article 28 A of Indonesian Constitution56; ii.
Article 28 D talks about the right to equality;57 iii.
Article 28G states various rights like protection of oneself and protection of one’s dignity, honor, property etc;58 iv.
Article 28H focuses on the health and well-being of the citizens that assertively pose a duty on the state to provide it to them;59 v. Article 28I incorporates the principle of Convention against torture and imposes the duty on the state to act for the same;60 and vi.
Article 34 obligates the state to take care of weak and vulnerable people and to empower them.61 57 Pasal 28 D Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (Indonesia).
58 Pasal 28 G Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (Indonesia).
59 Pasal 28 H Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (Indonesia).
60 Pasal 28 I Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (Indonesia).
61 Pasal 34 Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 (Indonesia).
Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 287 These human rights under part XA explain that it puts an obligation on the state to make and enforce the laws based on the principles of human rights as enshrined in it.
These rights cannot be curtailed in any circumstances except by the procedure of law and have been incorporated in the Law of the Republic of Indonesia Number 12 of 1995 related to corrections which have various amendments related to penitentiary system and states that inmates should be treated with equal dignity.
The guarantee to enjoy human rights is also put forth in Law No.
39 of 1999 on Human Rights.
Article 3 of the Law Number 12 1995 states that the main objective of the correctional institution is to reform the inmate so that he can re-enter the society with good and healthy behaviour and act as a responsible citizen.62 Furthermore, Article 5 explains the principles on which correctional system is based that are: i. Aegis ii.
Equality of treatment, care, and service iii.
Education iv.
Guardianship v. Respect for human dignity vi.
Loss of liberty is the only suffering vii.
Guaranteed right to be in touch with the family and certain people.63 Article 12 states that on the following basis: i.
Age of the inmate.
ii.
Gender of the inmate.
iii.
Length of the sentence imposed.
62 Pasal 3 Undang Undang No.
12 Tahun 1995 (Indonesia).
63 Pasal 5 Undang Undang No.
12 Tahun 1995 (Indonesia).
64 Pasal 12 Undang Undang No.
12 Tahun 1995 (Indonesia).
65 Pasal 14 Undang Undang No.
12 Tahun 1995 (Indonesia).
66 Pasal 2 Undang Undang No.
12 Tahun 1995 (Indonesia).
iv.
Type of crime; and v. According to the needs of the inmates There will be a classification in the correctional system and female prisoners will be kept in the designated setup for them.64 Meanwhile, Article 14 talks about the rights of prisoners which include rights like health services, proper food, and the right to file a complaint.
65 As mentioned in Article 2 these rights are subject to state legislations and human rights which are inscribed in international instruments.
66 Government Regulation no.
87 of 2014 talks about reproductive rights67 and one’s autonomy in taking decisions related to one’s sexual life.68 Articles 285 to 290 of the Code of Penal explicitly talks about the violation of women but it doesn’t categorize the sexual harassment in the fiduciary relationship or by police if we compare it with sexual violence eradication bill which hasn’t been passed yet, the Code of Penal needs various changes to fit the needs of a dynamic society and to protect women in all spheres.69 2) International Instruments a) India: National Human Rights Commission of India has played a significant role in the protection of human rights accorded by the Protection of Human Rights Act, 1993.
Its function is to recommend and discuss with the concerned ministries and conform the international human rights standards which are accepted by the Government of India.
67 Pasal 73 c Health Law No.36 Tahun 2009 (Indonesia).
68 Pasal 5C Population Law No.52 Tahun 2009 (Indonesia).
69 Ani Purwanti and Rian Adhivira Prabowo, ‘Women Rights Fulfillment As The Victim Of Gross Human Rights Violation: Urgency For The Sexual Violence Eradication Bill’ (2018) 8(3) Indonesia Law Review.
288 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia It urged the ministry of human rights for the formal notification of The Convention on the Elimination of all forms of Discrimination (CEDAW).
India has signed CEDAW on July 30, 1930, and ratified it on July 9, 1993, with reservations.
The reservations were put on Article 29 of the convention.
India had made a declaration to abide by all the obligations of the convention related to the ‘policy of non-interference’ concerning Article 5(a) and 16(1).
Though India supports Article 16(2) of the Convention, this Article is not practical in a country like India with a variety of customs and religions.
Despite the reservations on the convention, the status of women is getting better legally and in terms of political participation.
India has also incorporated the protection of women in Articles 13, 14, and 15 of the Constitution.70 India agreed to International Covenant on Civil and Political Rights (ICCPR) on April 10, 1979.
India has made declarations related to the article 1,9,12,13,19(3), 21, and 22.
The last review of India under ICCPR was conducted in 1997.
According to that review, though India has a wide range of constitutional institutions and legislative framework for Human Rights there is a serious need for the implementation of CCPR ability to put it into the practice and made some recommendations to comply with.
The NHRC reviewed and conveyed its comments on various National laws and draft bills that cover the rights mentioned under ICCPR including legislations such as Terrorist and 70 National Human Rights Commission India, ‘A Handbook on International Human Rights Coventions’ (2012) <https://nhrc.nic.in/sites/default/files/A_Handboo k_on_International_HR_Conventions.pdf>.
71 Citizens Against Hate and Quill Foundation, ‘India’s compliance with ICCPR’ (2019) <https://tbinternet.ohchr.org/Treaties/CCPR/Shar ed%20Documents/Ind/INT_CCPR_ICS_Ind_349 09_E.pdf> .
Disruptive Act (Prevention) Act, 1987; Protection from domestic violence bill, 2000; Communal violence (prevention, control, and rehabilitation of victims) bill, 2005; Prevention of torture bill, 2009 and many others.71 India also signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) in 1997 but didn’t ratify it.
It has made some reservations against the provisions of CAT such as in Articles 20, 21, and 22.
The International Commission of Jurists and many other states have urged the Government of India to ratify the convention during Universal Periodic Review.72 India is also a member of ASEAN Regional Forum since 1996.
ASEAN – India partnership has its goals and objectives set from 2016-2020 of Peace, Progress and Shared Prosperity.
Both sides have been addressing the common and emerging challenges for overall peace, stability, and prosperity.
b) Indonesia: The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is the earliest international human rights treaty which was signed and ratified by Indonesia and it became the foundation for the National Commission on Violence against Women of Indonesia in 1999 set up under the Presidential Order No.
181/1998 which majorly recommends changes, do 72 Law commossion of India, ‘Implementation of ‘United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment’ through Legislation (Report 273) (2017) <https://lawcommissionofindia.nic.in/reports/Rep ort273.pdf>.
https://nhrc.nic.in/sites/default/files/A_Handbook_on_International_HR_Conventions.pdf https://nhrc.nic.in/sites/default/files/A_Handbook_on_International_HR_Conventions.pdf https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/Ind/INT_CCPR_ICS_Ind_34909_E.pdf https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/Ind/INT_CCPR_ICS_Ind_34909_E.pdf https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/Ind/INT_CCPR_ICS_Ind_34909_E.pdf Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 289 campaigns, creates awareness, and investigates the matters.73 Indonesia has also signed International Covenant on Civil and Political Rights and ratified it by legislating it as the Law No.
12/2005.
The Indonesian government has enacted its human rights laws through Law No.
39/1999 on Human Rights which also makes it mandatory for the government to create the National Human Rights Commission of Indonesia (NHRCI)and Law No.
26/2000 for the formation of Human Rights Court.74 It has also signed Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and ratified through Law No.
29/1999 but with 1 reservation only that it will not be bound to the jurisdiction of International Court of Justice.75 As a member of ASEAN, Indonesia has made lots of efforts in the promotion and protection of human rights in the region by being a signatory of ASEAN Declaration of the Advancement of Women (1988), ASEAN Declaration on the Elimination of Violence Against Women (2004), and ASEAN Declaration Against Trafficking in Persons Particularly Women and Children (2004).76 It is an exigency to bring a detailed model of prison institutions to disseminate contemporary principles and practices regarding the victimization of offenders in the prisons.
It’s impossible to bring a one set of rules for all the places or territories in the world.
In the same manner, one set of rules can’t be made for every age group people, gender, and community.
Prison Authorities must be prepared to protect and provide care 73 United Nations Human Rights Treaty Bodies, Core Documents, (2010) <https://tbinternet.ohchr.org/_layouts/15/TreatyB odyExternal/CoreDocuments.aspx>.
74 Tentang Hak Asasi Manusia, Undang-Undang Nomor 39 Tahun 1999 to vulnerable classes and no discrimination should be done to prisoners based on the race, colour, sex, language, and religion.
Incarcerated women must also be provided with recreational facilities and educating sessions.
The only way to observe a violent death is by post mortem and if there is a case of unnatural death of a prisoner there should be a proper inquiry on the matter.
The growing numbers in prisons with 2,10,693 as per June 2020, ranked Indonesia fourth in the world.77 So, there must be proper disciple among prisoners and staff authorities facilitated with a safe environment and better lives in prisons.
Indonesia has established various institutions and practices to curb human rights violations but the failure of legislation and lag in implementations led to the abuse of the administration of criminal justice.
IV.
CONCLUSION Globally, women are face many issues in prisons, of which the most contumelious is that of sexual harassment.
Despite vast development on the area of the sexual rights worldwide, women still are impuissant to claim it in their routine relationships, forget about incarcerated women asserting such rights.
The development of international law on this aspect has created immense awareness but due to unenforceability, it could not be implemented on all the states without any reservations thereto.
Indonesia and India both have significantly made welfare changes in criminal justice administration for the protection of incarcerated women, but the system is still flawed and needs prompt improvements.
75 Core Documents, (n 74) ‘CAT’.
76 Core Documents, (n 74) ‘ASEAN’.
77 Statista, Countries With The Most Prisoners 2020, (Webpage) <https://www.statista.com/statistics/262961/count ries-with-the-most-prisoners/>.
https://www.statista.com/statistics/262961/countries-with-the-most-prisoners/ https://www.statista.com/statistics/262961/countries-with-the-most-prisoners/ 290 | Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia Indonesia has implemented some of the standards from Bangkok Rules which are partially binding in nature affects its efficiency and lack of comprehensive and verifiable data to formulate effective policies empirical data and researches begs the question of safety, security and rights and ongoing treatments of the women inmates.
The Indonesian prison system needs to legislate and implement an extensive as well as efficacious set of regulations to improve the ongoing situation of the prisons like the introduction of a new law in 2014 for juvenile offenders.
The government should regulate the prison administration and should anticipate proper funds for regular evaluations of the prison systems and give authority to the National Commission on Violence against Women and the National Commission on Human Rights for collecting data on the victims, their relationships with perpetrators, on prosecutions, convictions and sentences in relation to the violence and sexual abuse with women in prisons.
Since the only way to report the sexual abuse or any kind of torture in prisons is to the warden, the grievance redressal mechanism system should be genuine, non-partisan and responsive for the effective justice and reparation and the absence of provisions in the Code of Penal makes lodging complaints about police misconduct more strenuous if compared with that of India, it has specific provisions for different conducts or acts that violates the integrity of women.
There has been no statistics of violence against transsexual people in Indonesia in general and as well as in prisons.
We could not find any cases on Supreme Court and Constitutional court directory related to sexual harassment of women in prisons.
There has be no latest news reported on sexual assault on women in prisons and most of the studies and reports on the government sites are not in English, so it made a lag in the qualitative research.
And there was only one study on the general health of the women in prisons, when compared to India there have been a lot of news reports, prison statistics and reports from various organs of government which gives a better insight as to the conditions of prisons.
There have been studies on individual states also by the government as well as non-profit and nongovernmental organizations which creates more transparency and judicial activism on such concerns makes justice and reparation available to victims.
Though there are number of legislations laid down for the welfare and protection of women and the treatment of prisoners in the International domain, states have yet to implement it.
Prison Statistics provided by NCRB in India do not specifically mention the cases of sexual harassment or assault in the prison by inmates or prison authority which makes it very difficult to know the exact number of victims.
There has been no positive outcome of the suggestions provided by National prison manuals in India for the protection of women in the prison because of its ineffective implementation.
To strengthen the basic rights of women in prisons, following areas like legal aid in prisons, better systems of conjugal visits, permanent availability of doctors in the cells should be looked upon and governments must let international human rights organizations to independently inspect and interview the inmates.
More importantly, the psychological health of the inmates has been overlooked and no recent study has been found on this aspect in India or Indonesia.
Moreover, we need to be conversant with the prison system as the sacrosanct part of the society and sensitize our attitude towards the same.
A sensitized society, conscious media, Parul, Luvleen Victimization of Women in Prisons: A comparative analysis of India and Indonesia | 291 and functional organizations are the strongest metals to the statutory armor.
V. ACKNOWLEDGEMENT The completion of this article could not have been possible without the expertise of our beloved mentor Ms. Mehreen Manzoor (Asst.
professor, School of Law, UPES, Uttarakhand) for her keen interest, inspiring guidance and constant encouragement at all stages of our work.
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DOI: http://doi.org/10.21776/ub.blj.2021.008.02.02 | 185 Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism in the Context of Enhancing the Indonesian Constitution David Tan Faculty of Laws, Universitas Internasional Batam, Indonesia Email: david.tan@uib.ac.id Submitted: 2021-08-10 | Accepted: 2021-10-05 Abstract: A lot of literature discusses the role of state administration, but there is still very little that emphasizes the unique picture related to juxtaposing aspects of fiduciary constitutionalism with administrative constitutionalism, especially at the stage of constitutional legal studies with the context of constitutionalism in Indonesia.
Implementing a fiduciary state administration is very much needed, but the most significant obstacle is the enigma of administrative constitutionalism.
The purpose of this inquiry is to analyze the development of the Indonesian Constitution in the future by elaborating the theory of fiduciary constitutionalism, issues related to administrative constitutionalism, and discussions related to the incorporation of the former and the latter into the practice of legal and political representation in the Indonesian Constitution using the perspective of judicial engagement theory.
The research method used is the doctrinal legal approach using secondary data in the legal literature to gain academic insight.
This research finally leads to a conclusion that focuses on the aspects of fiduciary and administrative constitutionalism, which can explain this phenomenon in enhancing the Constitution in Indonesia through several internalized recommendations.
Keywords: administrative constitutionalism, Constitution, fiduciary constitutionalism, government, legislative I.
INTRODUCTION A government that works in good faith for the welfare of its citizens is an obligation that becomes the positive rights of every citizen.
This reaction is frequently referred to as a "positive right" in legal jurisprudence.
The notion is that in some instances, the government of the state – owes something to people.
It is not optional, nor something that is provided or not contingent on how benevolent people in authority are feeling.
It is a right that every person has.
The right to housing, education, sustenance, and the right to health, including medical attention, and the right toward certain environmental safeguards and required aid for the poor are all positive constitutional rights acknowledged in Indonesian judicial systems.
The existence of a particular http://doi.org/10.21776/ub.blj.2021.008.02.02 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 186 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … affirmative right in a constitutional document is quite helpful.1 Positive rights' status is undoubtedly enhanced by a constitutional foundation of this sort, both realistically and politically.
It also allows us to consider what a constitution is, beyond just an essential written document and the treatment of people that it should represent.
The government's participation in our lives is frequently desired – and sometimes required – but it is also extensive and ongoing.
Its actions unavoidably have a variety of consequences, not just on our individual decisions but also on the trajectory of our existence.2 In his book The Cosmopolitan Constitution, Alexander Somek highlights a thesis about the development of the Constitution in three separate epochs.
Constitutionalism in the first era, best illustrated by the American experience, is about limiting government authority.
The Constitution is the manifestation of a people's rights, as it is based on their sovereignty.
3 The legitimacy of the Constitution is based 1 The difference between "negative rights" – liberty rights from any government action – and "positive rights" – rights that necessitate government action – is contentious.
It is frequently highlighted out that rights generally perceived as negative rights – such as the right to free speech, religious freedom, right to due process, and the protection of individual rightsnecessitate government measures in the form of enforcement or public spending of resources to be realized.
Just about everyone refers to the United States Constitution as a charter of negative liberties.
See Laura S Underkuffler, 'Fiduciary Theory: The Missing Piece for Positive Rights' in Evan J Criddle et al.
(eds), Fiduciary Government (Cambridge University Press, 2018) 96, 104.
2 Andrew S Gold, 'The State as a Wrongful Fiduciary' in Evan J Criddle et al.
(eds), Fiduciary Government (Cambridge University Press, 2018) 183, 195.
3 The Constitution of the United States declares that it was written by "We the People," a national, legally formed entity instead of a tangible, historical individual with natural states of mind.
The writer attempts to connect with a broad audience, which implies a desire to appeal to a on the 'constituent power' of a free people.4 Following World War II, a new version of the current Constitution evolved.
Constitutional legitimacy, therefore, stemmed from a determination to the preservation of human rights rather than from the people.
Therefore, the legitimacy of a constitution had become a matter of how well it withstood scrutiny in a network of global peer review.5 This second period of constitutionalism paved the way for the third epoch of constitutionalism, dubbed "The Cosmopolitan Constitution" by Somek.
The Cosmopolitan Constitution has two aspects to it.
The first one is political.
In addition to human rights protection, the Cosmopolitan Constitution prohibits discrimination based on nationality.
The Cosmopolitan Constitution also establishes methods for governing governmental relationships with authorities beyond the state.
Second, and much more sinisterly, the Cosmopolitan Constitution delegated political power to several international administrative bodies.
As a result, some claim that a new type of constitutional power hypothetical reasonable reader.
See Gary Lawson and Guy I Seidman, ‘Authors’ Response: An Enquiry Concerning Constitutional Understanding’ (2019) 17 Georgetown Journal of Law & Public Policy 491, 498.
4 Martin Loughlin, ‘The Concept of Constituent Power’ (2014) 13(2) European Journal of Political Theory 218, 234.
5 Constitutionalism 1.0 was about people's ideals being realized voluntarily, but Constitutionalism 2.0 dismisses voluntarism in favor of the "universal values of freedom, equality, and solidarity."
The emphasis has shifted from liberty to human dignity.
As an example of the transition to Constitutionalism 2.0, Somek points to Germany's post-World War II constitutional history.
In Constitutionalism 2.0, a constitution is formed by "an expression of rational acknowledgment of the highest significance and authority of human dignity and human rights," rather than by a sovereign people.
The Indonesian Constitution of 1945, which has been amended and refined to accommodate the protection of human rights, is also an example of a constitution in this phase.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 187 has emerged as the authority for a "managed global society.
"6 Although Somek's thesis appears to apply to the Indonesian Constitution, it is crucial to remember that the Constitution will keep growing and developing due to the effect of many determinants.
As a result, improving the Indonesian Constitution is critical to satisfying the requirements of modern society.
In this article, the author will discuss how the government administration can and should act, especially concerning its constitutional duties to maintain national integration.
Several points of view are used in the elaboration of the explanation of this article, including fiduciary constitutionalism and fiduciary, administrative constitutionalism, which have been widely discussed in various literature abroad.
The majority of the study has concentrated on the government and legislature's potential involvement indirectly promoting constitutional values by regulative or legislative interpretation and the employment of executive branch regulations to compel the law's execution.
However, little to no thought has been given to the negative consequences of discretionary administrative action in enforcing these authorities.
This article is novel in that it examines Indonesia's Constitution from the standpoint of fiduciary constitutionalism and administrative constitutionalism, both of which have been well established in other countries.
These two perspectives have never been presented together before to offer an 6 The political/legal element of Somek's thesis is the account of a growing constitutional system, but this is not the main essential feature of his thesis.
Although constitutionalism is the apparent issue, Somek's actual objective is global capitalism.
Some think that the world financial elites are methodically subjugating the global polity.
The interests of global capital are crushing democratic insight into the future evolution of the Indonesian Constitution.
With the ever-changing Constitution, we must never forget that the sole purpose of the Constitution and the law is to maintain the rule of law in society.
The rule of law is based on systems that revolve around the formation, implementation, and application of law as a body of legal norms, beliefs, customs, and institutions.
Therefore, it is necessary to have a solid legal heritage, including legal institutions that teach and train attorneys.
Legal professionals working in the public sector, private practice, and a variety of other legal settings, writing contracts, effecting the business transaction, protecting rights, bringing cases, and so on; jurists in multiple configurations who recommend, intellectualize, and criticize legal frameworks for addressing societal issues; legal associations that maintain professional, ethical standards; and so on.
Law has a backdrop influence in social, economic, and political interactions because wellestablished legal traditions have strong ties and extensive ligaments that run across society.7 This article will first address what is meant by fiduciary constitutionalism along with the theory behind it.
This was followed by an elaboration of administrative constitutionalism and issues that are often faced in the implementation of administrative constitutionalism.
Finally, the discussion continues with the incorporation of fiduciary and administrative constitutionalism into the practice of legal and political representation participation inevitably.
People nowadays are ruled by the central institutions of contemporary capitalism.
See Dennis Patterson, ‘The Dark Future of Constitutionalism’ (2015) 30 Constitutional Commentary 667, 669.
7 Brian Z Tamanaha, ‘Always Imperfectly Achieved Rule of Law: Comments on Jeremy Waldron’ (2021) 10(1) Global Constitutionalism 106, 112.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 188 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … in the Indonesian Constitution, which is wrapped in the view of the theory of judicial engagement.
In the same discussion, the author also gives out ideas and recommendations for enhancements that might be applied in the nuances of the Constitution in Indonesia.
At the very end, a conclusion is drawn, which summarizes the discussion mentioned above.
II.
LEGAL MATERIALS AND METHODS The legal research method used in this study is the normative juridical (doctrinal) research method that utilizes research data in the form of secondary data.
Secondary data was obtained by conducting a literature study on available legal materials and literature.
The secondary data search was facilitated with the help of the Google Scholar search engine because it was able to display various accountable and reliable works of literature and those relevant to the keywords being utilized.
In addition, this search engine also facilitates searches with snowball effects so that more literacy is obtained over time.
The secondary data used in this research are primarily legal materials from secondary legal materials consisting of research articles published by well-known and recognized journals.
The data that has been collected is then studied, researched, and analyzed using qualitative data analysis methods because the data referred to in this study are not numerical data that quantitative methods can analyze.
In carrying out qualitative data analysis, the author tries to elaborate as much as possible on the data 8 Ethan J Leib and Jeb Handelsman Shugerman, ‘Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation’ (2019) 17(2) The Georgetown Journal of Law & Public Policy 463, 464.
9 Antonia Waltermann, ‘Book Review: Sovereignty’s Promise: The State as Fiduciary’ analytically to avoid descriptive explanations as much as possible.
III.
RESULT AND DISCUSSION The Notion of Fiduciary Constitutionalism: A System of Representation Based on Trust The current re-discovery of governmental authority's fiduciary underpinnings may be traced back to Aristotle, Plato, and Cicero.
However, the notion that government officials hold their offices in trust for their beneficiaries (the public) and that a sovereign's political authority should be restrained by fiduciary standards—such as the responsibilities of allegiance and care—is not novel.
8 The notion of recasting the state-people interaction as a fiduciary relationship is appealing because it enables the enforcement of obligations on the administration, such as fairness and reasonableness, even in the lack of concrete law measures for that purpose.9 The concept of fiduciary government is appealing because it expresses a popular notion that public offices are kept in the interest of the people on a trust basis, that government authority is exercised for the benefit of a public or political community, and therefore that activities performed in the name of the state are implicitly impressed with, and constricted by public purposes.
10 By comparison, the state, various departments of government, and/or certain public positions are considered fiduciary because they involve connections comparable to one or more types of lawful fiduciary ties.
11 It has been suggested, for (2013) 20(4) Maastricht Journal of European and Comparative Law 649, 649.
10 Paul B Miller, 'Fiduciary Representation' in Evan J Criddle et al.
(eds), Fiduciary Government (Cambridge University Press, 2018) 21, 21.
11 Sung Hui Kim, ‘The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 189 example, that legislators are fiduciaries because they have a similar relationship with the voters as corporate executives vis-à-vis shareholders.12 In the annals of legal and political thinking, Thomas Hobbes probably gave the most influential representation description.
First, the essential structure of representation, according to Hobbes, is based on interpersonal authorization.
Second, Hobbes attempted to provide a comprehensive theory of legal or political representation.13 Hobbes describes representation in terms of many interconnected legal ideas crucial to comprehending what representation is as a legal notion and how it functions in law and politics.
The notion of legal personhood lies at the heart of Hobbes' argument.
Hobbes starts with personality because he understands that people are the locus of agency and liability in law.
To put it another way, the law presupposes the existence and engagement of natural and artificial individuals in diverse formal arrangements of jural relationships (e.g., right, obligation, duty, power, and liability).
Moreover, the law as a method of social control is made active via people because it is aimed at people, requiring their compliance and/or facilitating their purposeful action.14 Recognizing that representation necessitates the insertion of a representative between meaningful action and a responsible Against Corruption’ (2013) 98(4) Cornell Law Review 845, 871.
12 Miller (n 10) 26.
13 Representing does not indicate acting on behalf of someone else.
There might be such relations.
Just about all situations of responsive representation are accepted as standard examples of representation in political theory.
The representation of a constituency in the legislature and the executive, both responsive, electorally regulated interactions, is afforded a prominent position.
Government should be a government of responsive representatives who are voted to observe and answer to their constituents.
At the subject, we must regard a bona fide representative's actions as lawfully dependent on his principal's underpinning assignment of authority(s).
In this sense, the principal's author acts done by representations within the boundaries of their mandates merely imply they have permitted their representatives to act on their account.
In this view of representation, a legitimate act of authorization is the centerpiece of justification for assigning a representative's actions to those he represents.
As a result, the connection between those in positions of political power and those subject to it is adequately described as a social contract.
However, the social contract only grants sovereigns privilege, not unmonitored freedom.15 The government-citizen interaction has long been regarded as having a fiduciary character due to the government's authority.
Political theorists including John Locke, Jeremy Bentham, and Edmund Burke argued on the fiduciary nature of power and the duty of sovereign power to uphold its status of legitimacy and trust.
The basic notion – that government is obligated to regard the wellbeing of the people because of its authority – has survived over the years and has remained an accent of the common law itself.
In other words, in the circumstances involving connections between higher and lower parties, fiduciary relationships.
16 Are same time, it must be a responsively representative government, which means that its electorally regulated judgments and choices must correspond to the national society at large, expressing popular values and beliefs.
See Philip Pettit, ‘Representation, Responsive and Indicative’ (2010) 17(3) Constellations 426, 428.
14 Miller (n 10) 30.
15 Michael J Green, ‘Authorization and Political Authority in Hobbes’ (2015) 53(1) Journal of the History of Philosophy 25, 33.
16 A fiduciary relationship is where one person (the fiduciary) has discretionary freedom to accomplish an idealized other such as a goal or another Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 190 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … enforced by law.
Additionally, these are frequently circumstances in which the more substantial side wields authority due to a regulated, institutionalized, and hierarchical relationship.17 Fiduciary constitutionalism states that the government owes an obligation to operate in the best interests of its people regardless of whether or not the government has a complete claim to lawful authority.
Therefore, as a fiduciary, the government owes it to its inhabitants to pay special attention to their interests as they exist.
18 Fiduciary principles, according to FoxDecent, necessitate that public power is “constricted by moral and structural characteristics fundamental to legal order.” This encompasses the “moral and structural aspects of the rule of law,” such as the obligations of “fairness and reasonableness.” Thus, for example, the sovereign must maintain "stability and harmony," pay attention to "basic principles," and keep track of people's wellbeing and human rights.
19 People build, construct, and empower government by jointly planning, developing, and enforcing the circumstances under which there will still be a government's fiduciary responsibility as long as their authority exists.20 Politicians and bureaucrats, after all, should be deemed as fiduciaries.
The political-governmental connection may simply be simplified to legislation and enacting regulations, giving the impression that it is a very limiting relationship.
person's critical practical interests.
It is straightforward to see how government fits into this group if we use this definition.
See Paul B Miller and Andrew S Gold, ‘Fiduciary Governance’ (2016) 57(2) William & Mary Law Review 513, 549.
17 Underkoffler (n 1) 109.
18 Gold (n 2) 202.
Legislation or regulation, on the other hand, is entirely open-ended.
This implies that, at the very minimum, legislators or regulators make all of the decisions for their beneficiaries.
Furthermore, nearly every item of legislation or regulation might create a conflict of interest for some lawmakers or regulators.
Elected politicians and regulators should likewise be considered as fiduciaries, with a duty of care that they violate when they misuse electoral laws or regulations to benefit themselves.
Citizens cannot be considered to willingly accept political risk since they have no way of preventing it.
Additionally, there are no grounds to think the citizens intend to encourage officials to engage in risky behavior.21 The fiduciary theory offers a practical framework of judicially enforceable rights and obligations that bind political actors to their principals' goals.
Fiduciary theorists, in particular, believe that vigorous judicial scrutiny of government policy under the Constitution will restrict particular interest influence and arbitrary acts of the administration.
Fiduciary theory aspires to a politics that is more than a ruthless business.
Even as it characterizes regular politics in these terms, it denies raw power as a basis to use the state's forcible authority.
They claim that treating the government as fiduciaries and respecting the public's confidence will prevent the polity from devolving into dishonesty, elitism, factionalism, arbitrariness, and fraud.22 19 Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford University Press, 2011), 2.
20 Underkoffler (n 1) 115.
21 Julian Velasco, ‘Fiduciary Judgment Rules’ (2021) 62(4) William & Mary Law Review 1397, 1438.
22 Seth Davis, ‘The False Promise of Fiduciary Government’ (2014) 89(3) Notre Dame Law Review 1145, 1155.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 191 Recognition of a duty of loyalty owed by elected officials is likewise congruent with two critical theoretical explanations for fiduciary duties in civil law: contract and delegated power.
Constitutional democracy is founded on a contractual conception of governance, with the people delegating authority to the government as part of that agreement.
Furthermore, Professor Geoffrey Miller has suggested that the Constitution should be viewed as a public charter that creates a "body politic and social organization," that transfers authority to agents and defines governance norms.
According to contract theory, it may be seen as a contract establishing the relationships between the representatives (elected officials) and the principals (the people).
Because enumerating all of the conditions of the social contract in the Constitution would be extremely expensive, the voids must be addressed by fiduciary duties.
Representatives would also hold the duty of loyalty to the public, according to the notion that delegation of authority entails a mutual commitment to utilizing such authority in the sole best interest of the principal.
The Constitution is based on the notion that authority comes from the people and is entrusted to the government by the people.
People vote for representatives to serve as their agents and to rule the nation on their behalf.
The principals assign authority to their agents via elections, allowing them to conduct discretionary control over their interests and juridically bind them.
As a result, the people make themselves subject to 23 D Theodore Rave, ‘Politicians as Fiduciaries’ (2013) 126(3) Harvard Law Review 671, 712.
24 Bertell L Ross, 'Embracing Administrative Constitutionalism' (2015) 95(2) Boston University Law Review 519, 527.
25 Sophia Z Lee, 'Our Administered Constitution: Administrative Constitutionalism From the their representatives, who can define and defend the people's interests.
On the other hand, representatives bear a reciprocal duty of loyalty to the people since they assign their authority.23 The Notion of Administrative Constitutionalism Administrative authorities have evolved as the primary players responsible for carrying out legislative mandates found in legislation throughout the last century.
Administrative authorities practice constitutionalism.
They answer issues about the interpretation and extent of statutes that have constitutional implications.
Because the legislation is sometimes unclear given the lack of legislative foresight or a refusal to discuss politically sensitive subjects, authorities charged with enforcing them are frequently forced to interpret them.
According to our constitutional structure, which provides the national government restricted authority based on the laws and legislation, the parliament can only make laws authorized by the Constitution.24 The term “administrative constitutionalism” refers to the traditional definition of how government agencies interpret and execute the Constitution ever since scholars who came upon the Constitution in agency records have compiled a growing body of knowledge about how agencies have interpreted and executed the law.
25 Administrative constitutionalism 26 It encompasses the implementation of existing constitutional Founding to the Present (2019) 167(7) University of Pennsylvania Law Review 1699, 1704.
26 This symposium constructs on a decade of research on the role of administrative agencies in establishing and explaining constitutional meaning—a trend we now describe as "administrative constitutionalism."
While some academics define the term differently, we use it to Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 192 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … provisions by administrative bodies and the development of new constitutional conceptions by administrative agents, and the establishment of the administrative state.
27 Administrative constitutionalism has been described as the interpretation and application of constitutional legislation by regulatory bodies.
However, the word has since been expanded to include a broader range of administrative conduct and legislative construction.
28 Administrative constitutionalists accept that agency actors can follow "due process and equal protection principles" in perceiving and carrying out their responsibilities.29 Administrative constitutionalism refers to the practice of administrative authorities in interpreting and enforcing constitutional ideals while executing statutorily granted authority.
That administrative authorities have the authority to interpret and execute constitutional principles, which means that the judiciary should recognize administrative determinations on constitutional issues if they are made fair, transparent, and reasonable.30 The domain of administrative constitutionalism focuses on yet another issue: the possibility of administrative constitutionalism mimicking administrative law scholarship—ever observant to legislative and juridical limitations on agency behavior and, growingly, to the intricacies of pertain to "regulatory agencies' interpretation and application of constitutional law."
See Karen M Tani, ‘Administrative Constitutionalism at the “Borders of Belonging”: Drawing on History to Expand the Archive and Change the Lens’ (2019) 167(7) University of Pennsylvania Law Review 1603, 1604.
27 Gregory Ablavsky, ‘Administrative Constitutionalism and the Northwest Ordinance’ (2019) 167(7) University of Pennsylvania Law Review 1631, 1651.
28 Joanna L Griesinger, 'Municipal Administrative Constitutionalism: The New York City Commission on Human Rights, Foreign Policy, day-to-day administrative decisionmaking.31 However, the term administrative constitutionalism has been changing and developing.
One might argue that executive branch agencies should assume minor if any, involvement in determining constitutional law's parameters.
Nevertheless, several legal academics disagree.
The phenomena of administrative constitutionalism have been increasingly recognized and commended by these notions, the innovative interpretation, and development of statutory standards and moral-rights concerns by bureaucrats under the influence of social change, frequently acting outside or even in defiance of presidential, parliamentary, and judicial orders.32 There is an imminent danger in the notion of administrative constitutionalism.
Administrative constitutionalism refers to the "substantiation of new constitutional value systems by administrative agents, and also the building of the administrative state via institutional and substantive means such as the constitution."
Professor Ernest Young concludes that the courts do not resolve the majority of critical constitutional problems.
Instead, different administrative actors, such as the administrations, depend on their interpretations of constitutional rules and principles.
As a result, these administrators and the First Amendment (2019) 167(7) University of Pennsylvania Law Review 1669, 1670.
29 Yxta Maya Murray, ‘What FEMA Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism’ (2019) 72(1) Arkansas Law Review 165, 197.
30 Matthew Lewis, 'Administrative Constitutionalism and the Unity of Public Law' (2018) 55(2) Osgoode Hall Law Journal 515, 519.
31 Tani (n 26) 1628.
32 K Sabeel Rahman, ‘Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?’ (2016) 94(7) Texas Law Review 1329, 1352.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 193 may frequently become prone to disregard the courts’ precedent and the substance of the Constitution itself.33 Among the essential duties of the nondelegation concept is to keep the legislature accountable.
John Locke, a seventeenthcentury English philosopher, expressed this idea eloquently.
Locke thought that the legislative branch possesses "supreme authority," No other group or person may issue edicts that have legal effect unless the legislature, which the people have chosen and elected, has permitted them to do so.
Locke felt there were many key things a legislative body could not do, even though it received its authority from the people.
Most importantly, Locke argued that the legislative body should not be able to delegate its legislative powers to anybody else.
Locke highlighted the significance of legislative authority's derivative power, arguing that if the legislature delegated its lawmaking authority to people just outside of the legislative body, it would transform from a body that makes laws to one that makes legislators.
He said that if lawmaking power was given to persons who were not voted in by the public, the legislature would not be made responsible for the laws passed.
As a result, if such legislation proved unpopular with the people, the legislature could immediately blame the delegated authorities.
This kind of delegation, according to Locke, 33 David E Bernstein, ‘Antidiscrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism’ (2019) 94(3) Notre Dame Law Review 1381, 1382.
34 Meaghan Dunigan, ‘The Intelligible Principle: How It Briefly Lived, Why It Died, and Why It Desperately Needs Revival in Today’s Administrative State Why It Desperately Needs Revival in Today’s Administrative Stat’ (2017) 91(1) St. John’s Law Review 247, 250.
35 The President's authority was not viewed by the Court as a transfer of legislative authority.
Rather, the Court saw the President's power as a way for the government to ensure the exact impact desired would weaken the legislature's role as the people's voice and remove any responsibility from elected officials.34 The non-delegation concept is commonly believed to require that every legislation authorizing agencies to create legally enforceable regulations have an "intelligible principle" to limit the use of governmental power.
A constitutional grant of discretion to an executive officer must be based on an "intelligible principle."
The intelligible principle was initially coined by the J.W.
United States v. Hampton, Jr., & Co. [276 U.S. 394 (1928)].35 It is the touchstone for a constitutionally granted executive officer's discretion.
Furthermore, failing to address constitutional problems, especially in the context of legislative interpretation, comes with its own set of implications.
When it comes to unclear legislation, the government frequently seeks deference to agency interpretations.
This is especially troublesome when an agency has not used constitutional avoidance in its interpretation, and the resultant understanding raises severe constitutional problems.
Whereas the agency's knowledge of some parts of the legislation may have an impact on the constitutional issue, the judiciary retains the authority to enforce constitutional principles where the agency has acted inappropriately.36 by its acts of legislation by placing discretion in such authorities to establish public rules interpreting a statute and regulating the specifics of its implementation.
If Congress establishes an intelligible principle to which the person or body empowered is required to adhere by, such act is not considered as a prohibited delegation of legislative authority.
See Cary Coglianese, ‘Dimensions of Delegation’ (2019) 167(7) University of Pennsylvania Law Review 1849, 1856.
36 Alina Das, ‘Administrative Constitutionalism in Immigration Law’ (2018) 98(2) Boston University Law Review 485, 538.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 194 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … Administrative agencies are not generally viewed as core areas for social movement action; therefore, they do not fit into direct popular constitutionalist narratives.
Because the officials who manage agencies are not immediately voted in by the people, they do not fit into mediated popular constitutionalist narratives.
Administrators must thus participate in a consultation exercise in which they analyze and assess public comments and offer solutions, make any required rule revisions, and resubmit the rule for further public discussion once they have done so.
This approach necessitates a shift in attention from popular inputs, in which agencies engage the public in constitutional interpretation determinations through their activities, to administrative constitutionalism outputs.37 Legal and Political Representation and Its Nexus with Fiduciary and Administrative Constitutionalism into Indonesian Constitutional Outcomes Article 1(3) of the 1945 Indonesian Constitution states unequivocally that Indonesia is ruled by the rule of law.
Furthermore, the 1945 Indonesian Constitution specifies that human rights must be protected in conformity with democratic and law-based ideals.
As a result, constitutional problems should be addressed in human rights legislation.
The realization of human rights is guaranteed, controlled, and set out in the laws and regulations to preserve and safeguard human rights in line with the 37 Bertell L Ross, 'Administrative Constitutionalism as Popular Constitutionalism' (2019) 167(7) University of Pennsylvania Law Review 1783, 1807.
38 Nukila Evanty, ‘Komnas HAM: Discrepancies Between Its Mandate and the Indonesian Constitutional Framework’ in James Gomez and Robin Ramcharan (eds), National Human Rights Institutions in Southeast Asia (Palgrave Macmillan, 1st ed, 2020) 141, 150. ideals of a democratic constitutional state.
As a result, the 1945 Constitution expressly compels the state, specifically the government, to be accountable for the preservation, promotion, enforcement, and satisfaction of human rights based on democratic state law principles, which execution is assured and controlled by legislation.38 The notion of a single unitary country was incorporated in the 1945 Constitution of Indonesia, which was prepared swiftly to proclaim independence in the aftermath of the withdrawing Japanese occupation troops and in expectation of the returning Dutch.
Organicist doctrines supported firmly centralized, integrative processes connecting state and society altogether, and this kind of Constitution was inspired by them.
39 In Indonesia, the Constitution is the primary source of law, superseding all other legal provisions in the case of a contradiction.40 It has become necessary to make some fundamental differences.
Starting with legal representation, it is common knowledge that legal representatives act on behalf of others by exercising legal authority to change their principals' legal standing.
Common properties of jural relations determine the opportunities for legal representation in this sense, such as rights and duty, power, and liability.
Via the representative action, a legal representative can change the legal status of the people they represent by creating new rights or authorities.
Put simply, a legal representative personates another by 39 Jacques Bertrand, ‘Indonesia’s Quasi-Federalist Approach: Accommodation Amid Strong Integrationist Tendencies’ (2007) 5(4) International Journal of Constitutional Law 576, 577.
40 Tim Lindsey and Simon Butt, ‘State Power to Restrict Religious Freedom: An Overview of the Legal Framework’ in Tim Lindsey and Helen Pausacker (eds), Religion, Law, and Intolerance in Indonesia (Routledge, First, 2016) 19, 20.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 195 behaving in the same manner that a person with a legal personality might act under the law.
Since the presence of a state is a prerequisite of a developed legal system, legal representation is different from political representation.
Political representation, on the other hand, is the mechanism by which political groups attain their common goals.
Political representation is a superordinate type of representation to the degree that government serves as an agent for political groups in formulating, interpreting, amending, and administering legislation for collective goals.41 We can now complete the set by demonstrating that public institutions, like private organization, is based on representation, and, given the formal distinctions between private and public directives, the representative nature of public administration upholds the fiduciary portrayal of government and public offices.
Recalling that representation, according to Hobbes, is a type of connection in which an individual (or group) personates the other by working on their behalf with authority.
A complicated mixture of legal and political representation is involved in public administration.
On the one hand, it involves political representation to the degree that it is a method of achieving political community.
The unique sense refers to the process through which a political society, through its representatives, assumes the structure of a state (or subordinate entity) and establishes law for itself.
The auxiliary meaning refers to how public officials represent the nation by acting on its behalf within the law.
Fiduciary governance is often implausibly claimed to provide legitimacy for the exercise of 41 Miller (n 10) 38.
42 Ibid.
48.
43 Richard Stacey, ‘Dynamic Regulatory Constitutionalism: Taking Legislation Seriously in sovereign authority, the acknowledgment of particular rights, and/or the requirement that governments seek specified public goals.
Only if the government is represented in the wide sense defined by Hobbes does the concept of fiduciary government make sense.
This should not, however, imply that governance must be democratic.
Rather, it indicates that a government's goal in governing must be to create and sustain a political community for and on behalf of its constituents.42 This study is based on a theory of judicial engagement with socio-economic rights that emphasizes the role of legislation and fills the void in previous methods.
The concept of 'normative congruence,' a modification of Lon Fuller's rule-of-law notion of congruence, lies at the heart of this novel approach.
The basic notion is that the administration and official behavior must be consistent not only with the technical rules and limitations of law but also with the constitutional values that serve as the fundamental underpinnings for these legal and regulatory standards.
In two ways, dynamic regulatory constitutionalism seeks to refocus attention on the constitutionally enshrined normative substance of public policy.
First, the judiciary should stress the constitutional basis of social legislation, expressing explicitly how constitutional principles permeate administrative, regulatory responsibilities.
Secondly, judiciary contact with administrators should be directed at ascertaining if the latter are aware of the links between constitutional mandates and beneficial administrative public policy.43 the Judicial Enforcement of Economic and Social Rights’ (2017) 31(1) Notre Dame Journal of Law, Ethics and Public Policy 85, 88.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 196 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … In the fiduciary constitutionalism’s point of view, the administrative oversight of administrators' decision-making has a major goal of ensuring that administrations follow particular deliberate procedures.
Notice and comment periods are required for rulemaking, which ensures that agencies obey the guidelines that should regulate their actions.
Actions by the authority must either be based on solid evidence or not be arbitrary or unjustified.
The framework of so-called hard-look assessments, in particular, appears to be focused on determining if an administrative agency has deliberated properly.
We assess if an administration has thoroughly reviewed the relevant information and provided a sufficient justification for its actions, along with a reasonable link between the facts discovered and the decision taken.44 To navigate the slippery slope of administrative constitutionalism, scholars occasionally differentiate between the rule of law and the rule by law.
The governing method of "rule by law" used by an administration (or a governing body) in dealing with their subjects is referred to as when an administration governs by law, he or she does not rely solely on specific instructions, decrees, and discretionary choices.
Rather, they rule within a context of relevant laws that have been established ahead of time so that they know where they stand and so that there is a particular and almost definable baseline, accessible to everyone ahead of time, on which they can address the conflicts and controversies that arise in any complex society.45 44 Ethan J Leib and Stephen R Galoob, ‘Fiduciary Political Theory: A Critique’ (2016) 125(7) Yale Law Journal 1820, 1858.
To combat the negative effects of administrative constitutionalism, rather than segregating the rule of judicial review so that administrative decisions affecting national policy are evaluated under a separate conceptual framework than those involving constitutional problems, the law of judicial review should be unified.
The author advocates for a uniform legal structure for judicial review that aims to promote appropriate forms of integrating abstract constitutional principles with a dynamic social environment throughout a wide variety of administrative actions.46 Agencies might be restructured to enable greater explicit stakeholder participation during policy development.
From participatory budgeting to technology-facilitated forms of participation and public monitoring of government acts, we see initiatives in regulation to establish more participative policy-making procedures that can help rectify imbalances of power and influence.47 To fight the arbitrary act of the administrative agencies, given this, it would seem apparent that making it simpler for litigants to contest agency acts in administrative courts, as well as having such courts show fewer deference to agencies, would be a beneficial change.
Another potential solution would be to create an instrument or system inside the executive branch that would be responsible for evaluating agency activities to ensure they comply with court precedent, statutes, and the Constitution.
Yet, while this is a good notion, bringing it to reality would almost definitely need wider considerations.
Furthermore, there would be the risk that this 45 Jeremy Waldron, ‘The Rule of Law and the Role of Courts’ (2021) 10(1) Global Constitutionalism 91, 96.
46 Lewis (n 30) 519.
47 Rahman (n 32) 1352.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 197 very institute would become a rubber stamp, making each attempt to deny that any measure violated the Constitution in order to retain executive authority and discretion.
These examples might serve as a warning tale.
48 Because of the judiciary's ability to assess administrative matters and contrast them to the Constitution and the law, administrative power to impose administrative constitutional actions has been limited.49 The capacity to make arbitrary policy decisions has become a hallmark of modern executive authority.
Some academics have claimed that the executive branch administration, with its various departments and offices, may provide its own checks and balances to check in an increasingly strong executive.
Interdepartmental scrutiny of national security policies and procedures, direct monitoring of national security operations by high-ranking members of the administration, and promotion of dissidents and whistleblowers might all be part of these checks and balances.50 In light of the foregoing considerations and analysis, Indonesia's increased compliance with international human rights and constitutional norms provides a chance for the country to counteract such trends.
There are effective methods for bringing the 1945 Indonesian Constitution into compliance with the worldwide international constitutional framework for social welfare, one of which is to implement fiduciary and administrative 48 Bernstein (n 33) 1413.
49 Bertell L Ross, 'Denying Deference: Civil Rights and Judicial Resistance to Administrative Constitutionalism' (2014) 2014(1) University of Chicago Legal Forum 223, 286.
50 Anjali S Dalal, ‘Shadow Administrative Constitutionalism and the Creation of Surveillance Culture’ (2014) 2014(1) Michigan State Law Review 59, 119.
51 Evanty (n 38) 155. constitutionalism.
51 At the national level, Indonesians see the 1945 Indonesian Constitution as the statement that creates national citizens' fundamental human rights, laying the groundwork for the implementation of Fiduciary and Administrative Constitutionalism in Indonesia.52 To highlight this nexus, the author would like to emphasize three notions of constitutionalism.
The notion that the Constitution was written with the goal of gradually realizing greater and greater rights.
This reasoning is backed up by the principle of non-retrogression, which stipulates that the progress of rights must go forward rather than backward.
The second claim is constitutional morality, the notion that the Constitution embeds dedication to certain value systems that must be upheld even when they are not explicitly stated.
The final point was that basic rights exist irrespective of the number of individuals involved, implying that they are not intended only to defend the majority.
These rights cannot be withheld from a marginalized group just because they are in the minority.
53 These are assurances that each individual/citizen receives.
A more rigorous manner of reasoning is required to reconcile this link and provide adequately examined justifications for its intrusions in favor of the fiduciary constitutionalism system.
Only in this way can the people have a better knowledge of its position in the Indonesian Constitution, and only in this way will the administration gain the popular 52 Claudia Ituarte-Lima, Constance L McDermott and Mari Mulyani, ‘Assessing Equity in National Legal Frameworks for REDD+: The Case of Indonesia’ (2014) 44 Environmental Science & Policy 291, 293.
53 Saskia E Wieringa, 'Criminalisation of Homosexuality in Indonesia: The Role of the Constitution and Civil Society (2019) 20(1) Australian Journal of Asian Law 227, 228.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 198 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … support it needs to express its function in long-term constitutional support.54 IV.
CONCLUSION AND SUGGESTION The author believes that every elected official holds the trust of the public and should act as an agent representing the interests of the beneficiary (people/public) who voted for him.
For this reason, a fiduciary relationship exists between those in power and the people who have collectively and conscientiously put their trust in him for the office.
This belief must be accounted for and accountable because the aspect of its constitutionality emphasizes the same.
Regarding the idea of administrative constitutionalism itself, there are various understandings to this concept, but mostly the understanding of this notion leads to the implementation of the authority of administrative officials in carrying out the spirit of the law and the Constitution because of legislative conditions that tend to be generalist, unclear due to lack of legislative foresight, as well as the unwillingness of the legislature to discuss sensitive political topics.
Indeed, this act is not inherently wrong.
Yet, it does not rule out the possibility that, in practice, sometimes the implementation of the spirit of the law by the state administration may be prone to acts that are arbitrary, not transparent, or unreasonable so that it has the potential to conflict with the interests of the people.
As a result, this can then result in a breach of fiduciary duty by the state administration against the people.
Juxtaposing the insight on the potential risk contained in administrative constitutionalism and the understanding of fiduciary constitutionalism is actually 54 Theunis Robert Roux and Fritz Edward Siregar, ‘Trajectories of Curial Power: The Rise, Fall and Partial Rehabilitation of the Indonesian beneficial for the development of law and the Constitution in Indonesia.
Apart from the complicated nature of political and legal representation involved in public administration, political representation contributes to the operation of the state to achieve the goals of the political community, while this process will also later through the representation process assume a position as a lawmaker and legal obligation so that it becomes a legal representation itself.
The theory of judicial engagement emphasizes administration and official behavior, which must be consistent with technical rules and limitations of law, along with constitutional values, which are the reference sources for legal and regulatory standards.
The recommendations suggested for enhancing the Constitution through this understanding are, firstly, the urgency for a framework of so-called hard-look assessments to ensure that the state administration process has been properly deliberated.
Secondly, understanding the negative potential of administrative constitutionalism, the idea of applying 'rule by law' must be strengthened to supplement the idea of the rule of law.
A uniform legal structure to promote the integration of abstract constitutional principles into a dynamic social environment is also needed as a benchmark for various administrative actions so that they can be accounted for transparently.
Finally, it is better internally that the state administration itself considers the existence of a checks and balances mechanism so that there is an internalized control as the fulfillment of the fiduciary duty of trust.
Constitutional Court’ (2016) 16(2) Australian Journal of Asian Law 121, 138.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 199 V. ACKNOWLEDGEMENT The author wishes to express his gratitude to the peer reviewers for their time and effort in reviewing the work.
The author is grateful for all of the helpful comments and ideas that significantly helped improve the manuscript's content.
The author would also like to express his gratitude to the journal's editor for his excellent correspondence during the editorial process.
The following financial assistance was disclosed by the author for the research, authorship, and/or publication of this manuscript: This work was supported by Universitas Internasional Batam through the Internal Research Grant Scheme [Grant Number: 276/LPPM/KPUIB/XI/2021].
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(eds), Fiduciary Government (Cambridge University Press, 2018) 183 Lindsey, Tim, and Simon Butt, 'State Power to Restrict Religious Freedom: An Overview of the Legal Framework' in Tim Lindsey and Helen Pausacker (eds), Religion, Law, and Intolerance in Indonesia (Routledge, First, 2016) 19 Miller, Paul B, 'Fiduciary Representation' in Evan J Criddle et al.
(eds), Fiduciary Government (Cambridge University Press, 2018) 21 Underkoffler, Laura S, 'Fiduciary Theory: The Missing Piece for Positive Rights' in Evan J Criddle et al.
(eds), Fiduciary Government (Cambridge University Press, 2018) 96 Journal Articles Ablavsky, Gregory, ‘Administrative Constitutionalism and the Northwest Ordinance’ (2019) 167(7) University of Pennsylvania Law Review 1631 Bernstein, David E, ‘Antidiscrimination Laws and the Administrative State: A Skeptic’s Look at Administrative Constitutionalism’ (2019) 94(3) Notre Dame Law Review 1381 Bertrand, Jacques, ‘Indonesia’s QuasiFederalist Approach: Accommodation Amid Strong Integrationist Tendencies’ (2007) 5(4) International Journal of Constitutional Law 576 Coglianese, Cary, ‘Dimensions of Delegation’ (2019) 167(7) University of Pennsylvania Law Review 1849 Dalal, Anjali S, ‘Shadow Administrative Constitutionalism and the Creation of Surveillance Culture’ (2014) 2014(1) Michigan State Law Review 59 Das, Alina, ‘Administrative Constitutionalism in Immigration Law’ (2018) 98(2) Boston University Law Review 485 Davis, Seth, ‘The False Promise of Fiduciary Government’ (2014) 89(3) Notre Dame Law Review 1145 Dunigan, Meaghan, ‘The Intelligible Principle: How It Briefly Lived, Why It Died, and Why It Desperately Needs Revival in Today’s Administrative State Why It Desperately Needs Revival in Today’s Administrative Stat’ (2017) 91(1) St. John’s Law Review Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 200 | Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism … 247 Green, Michael J, ‘Authorization and Political Authority in Hobbes’ (2015) 53(1) Journal of the History of Philosophy 25 Griesinger, Joanna L, 'Municipal Administrative Constitutionalism: The New York City Commission on Human Rights, Foreign Policy, and the First Amendment (2019) 167(7) University of Pennsylvania Law Review 1669 Ituarte-Lima, Claudia, Constance L McDermott, and Mari Mulyani, 'Assessing Equity in National Legal Frameworks for REDD+: The Case of Indonesia' (2014) 44 Environmental Science & Policy 291 Kim, Sung Hui, ‘The Last Temptation of Congress: Legislator Insider Trading and the Fiduciary Norm Against Corruption’ (2013) 98(4) Cornell Law Review 845 Kurniaty, R,” Human security in the age of electoral democracy: politico-business alliances in the Malang regency, Indonesia,” International Journal Sustainable Future for Human Security, JSustaiN Vol.7 No.
12-10, 2020 Lawson, Gary, and Guy I Seidman, 'Authors' Response: An Enquiry Concerning Constitutional Understanding' (2019) 17 Georgetown Journal of Law & Public Policy 491 Lee, Sophia Z, 'Our Administered Constitution: Administrative Constitutionalism From the Founding to the Present (2019) 167(7) University of Pennsylvania Law Review 1699 Leib, Ethan J and Stephen R Galoob, ‘Fiduciary Political Theory: A Critique’ (2016) 125(7) Yale Law Journal 1820 Leib, Ethan J, and Jeb Handelsman Shugerman, 'Fiduciary Constitutionalism: Implications for Self-Pardons and Non-Delegation' (2019) 17(2) The Georgetown Journal of Law & Public Policy 463 Lewis, Matthew, 'Administrative Constitutionalism and the Unity of Public Law' (2018) 55(2) Osgoode Hall Law Journal 515 Loughlin, Martin, ‘The Concept of Constituent Power’ (2014) 13(2) European Journal of Political Theory 218 Miller, Paul B, and Andrew S Gold, 'Fiduciary Governance' (2016) 57(2) William & Mary Law Review 513 Murray, Yxta Maya, ‘What FEMA Should Do After Puerto Rico: Toward Critical Administrative Constitutionalism’ (2019) 72(1) Arkansas Law Review 165 Patterson, Dennis, ‘The Dark Future of Constitutionalism’ (2015) 30 Constitutional Commentary 667 Pettit, Philip, ‘Representation, Responsive and Indicative’ (2010) 17(3) Constellations 426 Rahman, K Sabeel, ‘Domination, Democracy, and Constitutional Political Economy in the New Gilded Age: Towards a Fourth Wave of Legal Realism?’ (2016) 94(7) Texas Law Review 1329 Rave, D Theodore, ‘Politicians as Fiduciaries’ (2013) 126(3) Harvard Law Review 671 Ross, Bertrall L, ‘Administrative Constitutionalism as Popular Constitutionalism’ (2019) 167(7) University of Pennsylvania Law Review 1783 Ross, Bertrall L, ‘Denying Deference: Civil Rights and Judicial Resistance to Administrative Constitutionalism’ (2014) 2014(1) University of Chicago Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Tan Juxtaposing Fiduciary Constitutionalism and Administrative Constitutionalism…| 201 Legal Forum 223 Ross, Bertrall L, ‘Embracing Administrative Constitutionalism’ (2015) 95(2) Boston University Law Review 519 Roux, Theunis Robert, and Fritz Edward Siregar, 'Trajectories of Curial Power: The Rise, Fall and Partial Rehabilitation of the Indonesian Constitutional Court' (2016) 16(2) Australian Journal of Asian Law 121 Safa'at, A and Widiarto AE, "Conditional Decisions as Instrument Guarding the Supremacy of the Constitution (Analysis of conditional decisions of Indonesian Constitutional Court in 2003 – 2017)," (2021)Vol 8, No, Brawijaya Law Journal.
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DOI: http://doi.org/10.21776/ub.blj.2021.008.01.02 | 15 The History and Origin of Fraud as a Defect in Consent in Contractual Relationships Egzonis Hajdari Faculty of Law, AAB College, Kosovo Email: egzonishajdari@gmail.com Submitted : 2020-03-29 | Accepted : 2021-04-26 Abstract: Fraud is a specific type of defect in consent that manifests the purpose of one of the parties to establish a contractual relationship through deceptive actions.
As such, fraud is an unlawful and unethical action that emerged beginning with some of the earliest agreements in human society.
Moreover, the practical treatment of fraud is likely to have occurred since the genesis of its appearance.
More appropriate and advanced treatment of fraud can be seen after the implementation of the first legal systems, which focused on contractual relationships.
Fraud in contractual relationships will be examined starting with Babylonian, Ancient Greek, Roman, and Islamic law and will continue with a focus on Albanian customary law and modern laws implemented in Kosovo.
Furthermore, in this article, also explained how the treatment of fraud has evolved in the legal framework in Kosovo.
Keywords: fraud; islamic law; ancient greek law; roman law; kosovo customary law.
I.
INTRODUCTION History tells us of contractual relationships between parties since the ancient world.
From different points of view, researchers have related the genesis of these contractual relationships to the creation and development of human society.
Initially, such relationships were created and developed as a necessity of existence, then as a necessity for the transformation and development of human society up to the present day.
However, within these contractual relations have also appeared unfair acts that have disregarded the intended equality and legality; such unfair acts mainly refer to defects in consent, including duress, mistake, and fraud.
Defects in consent were faced within the aspect of their practical handling, at the same time of their presence.
Their conduct, with a focus on fraud, as seen in the practical (and even legal) aspects, has shown a marked development since the emergence of the first legal systems.
Today, their regulation has taken on a different dimension in scientific terms.
Moreover, we will briefly talk in general about the history of fraud in contractual relationships, and then the history of this unlawful act in Turkey and Kosovo.
This paper is structured as follows.
Initially, fraud under the Babylonian, ancient Greek, Roman, and Islamic law will be described, followed by Old Turkish law, customary Albanian law, and Law on http://doi.org/10.21776/ub.blj.2021.008.01.02 mailto:egzonishajdari@gmail.com Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 16 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships Obligational Relationships of the Former Yugoslavia.
All of this will be analyzed based on trusted legal literature, and conclusions will be presented at the end of the paper.
To achieve relevant scientific results, it is necessary to approach this issue through an analysis, descriptive, and comparative means as well.
II.
LEGAL MATERIALS AN METHOD This research paper adopted normative judicial method which examine and analysis legal sources regarding frauds and history of frauds.
This paper is also use descriptive and comparative method to get better understanding regarding the purpose of the research.
Relevant journal and books are also used to support and strengthen this paper academic argument.
III.
RESULTS AND DISCUSSIONS Fraud in Babylonian Law In Babylon, the law of obligation was empirical right, informal, and based on unilateral logic.
While on the other hand, the formal contract was only used to make more understandable the scope of legal transactions, and more trustiness as well.
The Babylonians did not make abstractions and theoretical legal deductions at that time, so they did not distinguish between the contractual obligations of those non contracting, or even the obligations arising from the defects in consent.
From this point 1 Ismajli, Hilmi and Sejdiu, Fatmir, Historia e shtetit dhe së drejtës I, (Prishtinë, Universiteti i Prishtines, 2005), p. 52 2 Hammurabi's code was the legal act with the main key on these foundations was laid down the general concepts of law in Babylon.
3 Ismajli, above n 1, p. 53 4 The Hammurabi code was written on the basal stone at a 2.25 m long distance.
This code contained 292 articles and its text was discovered of view, it can be concluded that Babylonian law did not recognize the division of the contracts like they were systematized in Roman law: formal, real, and consensual contracts.
But this does not mean that there were no contracts in Babylon for which a mandatory had a minimum obligation.1 Here we will try to present fraud based on Babylonian law, a topic totally neglected by scholars.
Consequently, in Babylon the majority of contracts were concluded in a simple way, which means it was sufficient to have the free consent from the contractual party’s.
However, the main forms of contracts under the Hammurabi Code2 have been in written form, concluded under free will, and bounded in the presence of witnesses.
If the contract form was not filled according to these conditions, it was considered null, because such contracts concluded in oral forms could be difficult, or impossible to prove.3 From a scientific point of view that can be made to the Hammurabi Code4 it cannot be freely determined that this Code in its solutions did not contain concrete norms regarding the issue of defects in consent in obligational relationships.
So, in this Code, it is mentioned the phenomenon of fraud in the obligational relationships of the parties at all.
The various cases studied show that fraud, therefore, the acquisition of another's property on the basis of fraud, was considered as an unlawful act, in which case the punishment of the lawbreaker was also by a team of French archaeologists in 1901/1902 in the ruins of Suzi city, today the southwest coast of Iran, the capital of the former state of Elam; see also: Dragusha, Musa, Kodi i Hamurabit, një monument i traditës juridike të njerëzimit, (2008) Avokatura, IV(7), p. 12, Buletini I Odës së Avokatëve të Kosovës.
Available at: http://www.oakks.org/repository/docs/AVOKAT URA_Nr.7_687807_286246.pdf.
http://www.oakks.org/repository/docs/AVOKATURA_Nr.7_687807_286246.pdf http://www.oakks.org/repository/docs/AVOKATURA_Nr.7_687807_286246.pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 17 done.
Legal documents, stamps, animal ownership stamps, slave marks, and measuring instruments were considered methods of fraud committed by a person.5 In fact, the Hammurabi Code deceit had, directly and indirectly, addressed fraud at some points, considering it illegal.
According to an analysis and research carried out in this Code and practical cases, fraud as unlawful conduct had taken place into Art’s.
05, 11, 13, 34, 103, 106, 107, 108, 109, 114, 155, 156 and 265.
Thus, the compensation of the damages in some cases also foresaw the possibility of a “death penalty”6, for persons who were guilty of acting fraudulently.
Fraud in the Ancient Greek Law Ancient Greece originated from the city-states called “polis”, which were created as a result of the economic and social development of the population, included the influence of the ancient near east civilization.
In ancient Greece, there was about two hundred (200) polis with similarities and obvious differences between each other.7 During this period of time in Ancient Greece there were improvements in the development of the laws and legal institutions.
Ancient Greek law has begun with the Athenian Code 5 Badamchi, Hossein, ‘Fraud and Forgery in Old Babylonian Law’, Wiesbaden, (2016) 22 Journal For Ancient Near Eastern an Biblical Law, p.21 Available at: https://www.academia.edu/33033088/Fraud_and_ Forgery_in_Old_Babylonian_Law_in_Zeitschrift _für_Altorientalische_und_Biblische_Rechtsgesc hichte 6 There are thoughts that conforming to Hammurabi's Code about the committed fraud, in case of this, the person who deceived another one may be punished with death decision.
See also: Holden, George, Code of Hammurabi, the Important Laws of Our Time, November, 2015, p. 5 Available at: http://www.epcc.edu/HonorsProgram/Student%2 0Projects/M_ChavezNorth_Code%20of%20Hammurabi%20the%20i mportant%20laws%20of%20our%20time%20(A PA).pdf from the IV and V centuries, while the basic of civil code was taken from so-called “Basilica”.8 As noted from the literature there is a lack of evidence showing that in Ancient Greek Law fraud as unfair behavior or any other forms of a defect in consent was unknown through the conclusion of the contracts.
“This ancient law, such as Babylonian Law, did not make any difference (as did the Roman law) between “actio in rem” and “actio in personam”, also it did not differentiate the “summa division” made by “Gaius” between the “obligationes ex delicto” and the “obligationes excontractu”.
But, when the obligation was created, either by contract or by offense, it was respected with greater seriousness.9 This rule was also applied through the concluding of the contracts that could be characterized by a defect in consent.
This is because the contract was considered as the law between the contractual parties.
At this period of time, during the formation of the contract, no particular formalism or symbolism was required.
It was enough for the contracting party’s to freely express their consent (will) on the essential elements of the contract.10 This means that the contract was valid even 7 Ismajli, above n 1, p 69-70 8 The “Basilica” was a collection of laws completed in Constantinople by the order of the Byzantine Emperor Leo VI during the Macedonian dynasty.
It was a continuation of the work begun by his father, Basil I, to adapt and simplify the Corpus Juris Civilization Code of Emperor Justinian I, issued between 529-534 years, and which was outdated.
The term “Basilica” does not come from the name of Emperor Basil I, but from the Greek language “τὰ βασιλικά”, which means “monarchy laws".
9 Ismajli, above n 1, p. 88 10 Țuțuianu Ion, ‘Legal regulation of the obligations in old romanian law’, greek and roman, (2012) Studies and Scientific Researches Economics Edition, No.
16-17, Available at:: http://sceco.ub.ro/index.php/SCECO/article/view/ 74/74 https://www.academia.edu/33033088/Fraud_and_Forgery_in_Old_Babylonian_Law_in_Zeitschrift_für_Altorientalische_und_Biblische_Rechtsgeschichte https://www.academia.edu/33033088/Fraud_and_Forgery_in_Old_Babylonian_Law_in_Zeitschrift_für_Altorientalische_und_Biblische_Rechtsgeschichte https://www.academia.edu/33033088/Fraud_and_Forgery_in_Old_Babylonian_Law_in_Zeitschrift_für_Altorientalische_und_Biblische_Rechtsgeschichte https://www.academia.edu/33033088/Fraud_and_Forgery_in_Old_Babylonian_Law_in_Zeitschrift_für_Altorientalische_und_Biblische_Rechtsgeschichte http://www.epcc.edu/HonorsProgram/Student%20Projects/M_Chavez-North_Code%20of%20Hammurabi%20the%20important%20laws%20of%20our%20time%20(APA).pdf http://www.epcc.edu/HonorsProgram/Student%20Projects/M_Chavez-North_Code%20of%20Hammurabi%20the%20important%20laws%20of%20our%20time%20(APA).pdf http://www.epcc.edu/HonorsProgram/Student%20Projects/M_Chavez-North_Code%20of%20Hammurabi%20the%20important%20laws%20of%20our%20time%20(APA).pdf http://www.epcc.edu/HonorsProgram/Student%20Projects/M_Chavez-North_Code%20of%20Hammurabi%20the%20important%20laws%20of%20our%20time%20(APA).pdf http://www.epcc.edu/HonorsProgram/Student%20Projects/M_Chavez-North_Code%20of%20Hammurabi%20the%20important%20laws%20of%20our%20time%20(APA).pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 18 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships when it was concluded in oral form.
So the written form was not a necessary condition for its validity.
The ancient Greek law has considered the issue of defects in consent in obligational relationships relatively late.
Consequently, the treatment of these phenomena was initially of a superficial nature,11 and gradually they took the right dimensions of elaboration.
In fact, the phenomenon of fraud and other defects in consent in concluding contracts in ancient Greek law in a superficial sense is first encountered in the “Dragon law”12 and “Solon law”13 in Athens, and probably also in the “laws of Lycurgus”14 in Sparta.
In these circumstances created by the issuance of these laws and upcoming laws, the Greek law in general, and Athenian law, in particular, were rigorous to the irresponsible party’s in obligational relationships.15 Such individuals could be prosecuted and forced to compensate for the damage they caused,16 same as it was stipulated under Babylonian Law.
Under the ancient Greek law, fraud in obligational relationships was considered to exist when, for example, the buyer had entered into a contract with the seller for the purchase of a shop store, which in the transfer of property 11 This includes also the time of Homer's activity, which was considered a master of science and wisdom.
He had the absolute authority in all areas that gave to the Greeks the unity and culture of the nation.
12 Dragon's laws for most legal problems, including contracts, contained a very harsh solution.
The fraudulent conduct made in the contractual relationships was defined as criminal offenses.
Meanwhile, Solomon's laws had marked a higher degree of delivery to more pragmatic solutions.
In relation to fraud, the focus was directed towards compensation for damage, even though these laws dealt with essential fraud as criminal offenses.
13 Athens and Sparta were the most popular Greek poles.
They were so because they had the highest degree of economic and social development, dictated by the geographical position and also based on the intellectuals of that time.
rights, and the owner was found to be lawless of that property.
Such of contract, the deceived party has a right to rescind the contract concluded under the influence of fraudulent conduct.
As it turns out, the ancient Greek law generally on issues of obligations relationships, with a focus on fraud as a defect in consent, has been an evolution that largely matches with the developments that have characterized other old laws, especially Babylonian Law.
This means that the mutual influence of the old laws was quite evident.
There must necessarily be a relationship between the trio “adikia – hamartema – atuchia” of the ancient Greek law, and the “dolus culpa casus” which was found in the old Roman law.
17 Fraud in the old Roman law Roman law “Jus Romanorum” is the legal system of ancient Rome, from the moment of its formation (according to the legend of 754 or 753 BC) until the death of King Justinian (in year 563 according to our epoch).18 Roman law represented the most advanced law of the time.
It was a model for other ancient laws.
Considering this, Roman laws contained numerous norms on 14 The laws of Lycurgus have not been preserved and little knowledge about them, but they are considered to have been mainly a description of customary law or its reform and change of that right.
15 George, Grote, A History of Ancient Greece Solon's Early Greek Legislation, (Boston, Jhon P. Jewet & Company, 1851), p.30, Available at:: http://history-world.org/solon.htm 16 Ibid 17 David, Ibbetson, ‘Wrongs and Responsibility in Pre-Roman Law’, (2004) 25(2) The Journal of Legal History, p. 100, Available at: http://faculty.uml.edu/Ethan_Spanier/Teaching/do cuments/IbbetsonANEWrongs.pdf 18 The Western Roman Kingdom was destroyed in the year 476, but the history of Roman law is considered completed with the death of the Emperor “Justinian”.
http://history-world.org/solon.htm http://faculty.uml.edu/Ethan_Spanier/Teaching/documents/IbbetsonANEWrongs.pdf http://faculty.uml.edu/Ethan_Spanier/Teaching/documents/IbbetsonANEWrongs.pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 19 personality rights, family and inheritance law, marital and property rights, and obligations law.
In fact, it is considered that ancient Roman law had borrowed a lot from Ancient Greek Law, considering a large number of legal solutions, including those addressing issues of the right to obligations.
This finding is based on the fact that at that time in Athens, a lot of Roman lawmakers had migrated, and while returning back home they have taken the model of Greek laws and integrated it into their existing legislation.19 In Roman civil law, there was no problem of discrepancy between the declaration and will of the parties.
This means that this right has not recognized any form of defects in consent, hence no fraud.
“According to the old “jus civile” provisions, every will which is expressed solemnly, regardless of the reasons for which it was expressed, and regardless of whether the parties was a declaration of what they really wanted”20.
At that time, the contract form had completely vested the will.21 This means during this period of time, a party that had entered into a contract in the effect of fraud had neither right for protection nor the right to compensation for the damage caused.22 The problem of discrepancy between the declaration and will of the party’s, arise when bona fide contracts emerged.
Bona fide contracts appear from the time when Roman 19 Bauman, R. A., The interface of Greek and Roman Law, 1996, p. 40, Available at:: http://local.droit.ulg.ac.be/sa/rida/file/1996/04.Ba uman.pdf 20 Ngjela Spartak, E drejta romake, Tiranë, UET, 2000, p.344 21 Puhan Ivo, E drejta romake (translatied in albanian), Prishtinë, 1980, p.311 22 Borkowski Andrew, Plessis du Paul, E Drejta romake (përkthim shqip), Tiranë, Univerziteti i Prishtines, 2009, p.344 23 Bilalli Asllan, Bahtir Bedri, E drejta romake, Prishtinë, Prishtine University, 2015, p.418-419 economic relations dominated the opinion that every legal transaction should be careful about the conditions due to which the contract will be concluded.23 Then, it was proved that the parties enter into different legal transactions because of their specific goals, therefore they freely decide to conclude the contract.
According to the principles of bona fide, as regular legal contracts, all those contracts were considered valid when the party’s knew why and when they were free to decide to enter into the contract.
Rather, all those contracts were considered void when the party’s did not know what they signing about or were forced to sign the contract.
In such cases, there was a discrepancy between the declaration and the will of the party’s.
Cases of the discrepancy between expression and will of the parties were divided into “reservatio mutatis”, “simulatio”, “dolus” and “vic ac netus” 24.
Fraud as a defect in consent after “bona fide” contracts, the Roman law has given particular importance, as demonstrated in a famous slogan “Fides bona contraria est fraudi et dolo” (good faith excludes fraud and dishonesty).25 According to Roman law, the owner was responsible not only for fraud but also in case of delays.26 “At this time “Fraud (dolus) represented the intention to create a false statement on the other side with the intention of concluding a contract to its 24 Opcit.
Puhan, p. 111-112 25 Barbara, Biscotti, Debtor’s Fraud In Roman Law An Opportunity For Some Briefremarks On The Concept Of Fraud, Fundamina, (2011) 17(2), p. 9, Available at: https://www.academia.edu/4179151/DEBTOR_S _FRAUD_IN_ROMAN_LAW._AN_OPPORTU NITY_FOR_SOME_BRIEF_REMARKS_ON_T HE_CONCEPT_OF_FRAUD 26 Mihai Olariu, Contracts In Roman Law, p. 7, Available at: ftp://ftp.repec.org/opt/ReDIF/RePEc/rau/clieui/SP 14/CLI-SP14-A9.pdf http://local.droit.ulg.ac.be/sa/rida/file/1996/04.Bauman.pdf http://local.droit.ulg.ac.be/sa/rida/file/1996/04.Bauman.pdf https://www.academia.edu/4179151/DEBTOR_S_FRAUD_IN_ROMAN_LAW._AN_OPPORTUNITY_FOR_SOME_BRIEF_REMARKS_ON_THE_CONCEPT_OF_FRAUD https://www.academia.edu/4179151/DEBTOR_S_FRAUD_IN_ROMAN_LAW._AN_OPPORTUNITY_FOR_SOME_BRIEF_REMARKS_ON_THE_CONCEPT_OF_FRAUD https://www.academia.edu/4179151/DEBTOR_S_FRAUD_IN_ROMAN_LAW._AN_OPPORTUNITY_FOR_SOME_BRIEF_REMARKS_ON_THE_CONCEPT_OF_FRAUD https://www.academia.edu/4179151/DEBTOR_S_FRAUD_IN_ROMAN_LAW._AN_OPPORTUNITY_FOR_SOME_BRIEF_REMARKS_ON_THE_CONCEPT_OF_FRAUD ftp://ftp.repec.org/opt/ReDIF/RePEc/rau/clieui/SP14/CLI-SP14-A9.pdf ftp://ftp.repec.org/opt/ReDIF/RePEc/rau/clieui/SP14/CLI-SP14-A9.pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 20 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships detriment”.27 Looking in the context of this approach: 28 “Fraud (dolus) was the purpose to make the other party have a false statement for the purpose of concluding a contract that was unfavorable to him/her: dolo malo pactum fit, quotiens circumscribendi aliud agitur et aliud agi simulatur.
This means that the contract is related to fraud, if the other party behaves in a wiliness manner, acting in a way but doing the contrary.
In fact, that the fraud was made with a purpose of changing and blurring the facts caliditatibus fallaciis et mashinationibus”.
The fraud may be caused by one of the contractual party’s or by any third person.29 Mistake, fraud, duress, and misrepresentation are considered defects in consent in Roman law.30 For instance, in cases where the buyer in the jewelry store had expressed an interest in buying a gold watch and the seller has sold him a gold plated watch.
Fraud, according to the Roman law “dolus” at the same time was considered as an unlawful conduct as well.
According to Ius Civile, furtum (robbery), rapina (burglary), damnum iniuria datum (property damage), iniuria (injury of persons), pretators expanded the illegal acts listing also dolus (fraud), metus (mistake), and fraus creditorum (fraudulent conducts against creditor) as an unlawful act.31 According to the literature, fraud (dolus) in Roman Obligation Law existed 27 Selmani, Bashkim and Rexhepi, Bekim, E drejta romake, f. 656-661, Ferizaj, 2014, p.475 28 Ibid, p. 314; see also: Akıncı, Şahin, Roma Hukuku Dersleri, Konya, 2003, p.124 29 Halûk N. Nomer, Borçlar Hukuku Dersleri Genel Hükümler, Istanbul, Beta, 2020, p.44 30 Akıncı, Şahin, above n 28, p.124 31 Since, fraud in Roman law was considered, except as a defect and as an outright act, this right accorded to deceiving different ways of legal protection.
See also: Bengi Sayin, Korkmaz, when the fraudulent conducts were expressed at the time when the contract was concluded, even earlier fraudulent conducts.
Roman law also made a division of fraud, in “dolus malus” (serious fraud) and “dolus bonus” (easy fraud), which played an important role in the validity of obligational relationships.32 Therefore, as for the existence of fraud in Roman obligation law, it was not a necessary condition to ascertain the fact of the existence of the discrepancy between the declaration and the will of the parties.
But here a basic condition, was the fact of intentionally inducing the contracting party or a third person to convince the other party of his/her will and to do so would not sign such a contract as if he/she knew all the circumstances.
The juridical protection act for the deceived parties was: exceptio doli, actio doli, and in integrum restitutio.
The right of “exceptio doli” 132 was used by people who were mistaken but have not yet done the promised action.
Exceptio doli was general (exception doli generalis seu preaesentis) when the deceived person stated that in the relevant contract at the time of conclusion of the contract were no fraudulent acts, but the fulfillment of the contract would be fraud due to later facts.
Exceptio doli was special (exceptio doli specialise seu praeteriti) when the injured person stated that deceptive Roma Hukuku’nda Hile (Dolus) Kavrami, Temmuz, Kirikkale University Journal of Sciences, (2017) 7(2), p. 428, Available at: http://dergipark.gov.tr/download/articlefile/338039; 32 Mihaela, Miruna Tudoraşcu and Alba, Iulia, Paraschiv D. Ion Good faith to conclusion of the sale, 2009, p.212, Available at: http://www.uab.ro/reviste_recunoscute/reviste_dr ept/annales_12_2009/31tudorascu.pdf http://dergipark.gov.tr/download/article-file/338039 http://dergipark.gov.tr/download/article-file/338039 http://www.uab.ro/reviste_recunoscute/reviste_drept/annales_12_2009/31tudorascu.pdf http://www.uab.ro/reviste_recunoscute/reviste_drept/annales_12_2009/31tudorascu.pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 21 actions were made at the time that the contract was concluded.33 Actio doli was a claim that the person who had fallen into the trick was able to use it against the fraudulent party.
He could file this claim within one year from the time the contract was signed.
Actio doli was not only a legal protection act for an annulment of the contract, but it was a claim for compensation for the damage and reclaims restitution as well.
So, since the actio doli was known as a criminal claim, through it the defendant was forced to pay an amount of money.
Thus, the person who caused the fraud was punished (penalized), while on the other hand the deceived person was compensated for the damage that occurred from fraud.
Another important effect of this claim, consisted in the fact that the convicted person was, as a rule, given the epithet of a dishonest person.
In the upcoming Roman law, this epithet of humiliation was a serious sanction because it also led to the limitation of legal capacity.34 Actio doli, because of the effects it could cause, was considered a very serious claim35.
So the filing of this claim could only take place when there was no other way.36 In this regard, the right to use this act only came from those persons, who had no way of getting back the previous situation.
As noted from the above, the deceived party who, even after the “clausula arbitraria” (requesting the item to be handed over to the deceived party), did not hand over the item, was obliged to repay the damage and pronounced an “infamy” person.
“Exceptio doli” and “actio doli” according to the roman law knew a third 33 Janjić-Komar M, Korać R, Ponjavić Z. Porodično pravo.
Dečje novine; 1994, p. 315 34 Akıncı, Şahin, above n 28, p.125-126 35 Ibid 36 Umur Ziya, Roma hukuku ders notlari, 3 basim, Istanbul, Beta Yayınevi, 2010,0 p. 208 37 Ibid.
p. 208-209 possibility of returning to the previous state (restitucio in integrum).37 Restitution means the allowing of the contracting party to rescind the contract and in cases where it has fulfilled the contractual obligations to claim the returning of the previous state.
By returning to the previous situation, the situation had to come to a condition as if that legal transaction had not happened at all.
Thus, the assets of the contracting parties behaved in a state that had existed before fraud, through the obligational relationship.38 As it turns out the contracts related to fraud in Roman law through the use of these juridical acts (exception doli and actio doli) any legal transaction could be annulled.
These were treated as voidable contracts since they “created legal consequences for as long as the other parties did not request the reinstatement of the action or did not reject to the claim that the other party might have done”.39 According to this, we conclude that Roman law has made great progress in regulating fraud, compared to the rights mentioned above.
Moreover, Roman law has an indisputable influence on all following rights according to this unlawful act.
Plus, Roman law has considered advanced because of regulating the juridical protection act for the deceived parties, contrasted to Babylonian and Greek Law.
Fraud in Islamic Law The Islamic law notion is understood as the legal system, which was applicable in Islamic states including the Ottoman Empire,40 back in time in the Islamic law, like 38 Akıncı, Şahin, above n 28, p.126-127 39 Mandro Arta, E drejta Romake, Tiranë, 2004, p.267 40 The Ottoman Empire was founded at the beginning of the 14th century, stretching to the properties of the Byzantine Empire (including most of Southeast Europe) and the Middle East, including Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 22 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships any other law, had gone through a very challenging path of its development.
This legislation, which in fact was the Sharia law, looking in a general context, contained relatively numerous norms on personality rights, family and inheritance law, marital and property rights, and obligation law.
Consequently, “Islamic Law was based on its four fundamental sources: The Qur'an, the Sunnah (the principles of Muhammad), the Icma (Muslim scholars) and Kıyas (analogy)”.41 The Qur'an and the Sunnah were primary sources of the Sharia law, while secondary sources were Icma and Kıyas.42 It should be emphasized that the rules of Islamic law apply only to Islamic citizens.
For other citizens, these rules were not applied43.
The Islamic Law (Sharia law) was called Fiqh.44 This was a law with religious premises, which at the same time regulated other social relationships in the Islamic community that were not merely of a religious character.
Sharia law addresses the whole human lifestyle.
It deals with human behavior as such, which implies all forms of spiritual, moral, and bodily action.45 Generally speaking, the Sharia law has a Egypt.
Though the first beginnings of the collapse of the Islamic state were marked in 1590, its collapse appears to have occurred in the decades of beats in the year 1600.
For this, see: İnan Kenan, The Making of Kanun Laë in the Ottoman Empire, 1300-1600, Published by Edizioni Plus – Pisa University Press, fq.
66.
Available at: http://www.cliohworld.net/onlread/5/07.pdf.
41 Bozkur, Gülnihal, ‘Review of the ottoman legal system’, (1994) 71(2) Der Islam: Journal of The History and Culture of Middle East, p.115, Available at: http://dergiler.ankara.edu.tr/dergiler/19/835/1056 3.pdf; see also: Javaid, Rehman and Aibek, Ahmedov, Edited by Shaheen Mansoor Sources of Islamic Law, The higher education academy, 2011, p. 18, 21, 27, Available at: http://pgil.pk/wpcontent/uploads/2014/04/Sources-of-IslamicLaw.pdf; see laso: Andrea, Büchler, Introduction to Islamic and Middle Eastern Law FS16, Zurich, 2016, p. 16, Available at: special focus on the right of obligations, with particular emphasis on the contracts, and within them was accorded the right space to the all types of defect in consent, namely to the threats and duress, and also to the fraud and mistake.
This right similar to other early laws had accepted the rule under which the contract could only be related to the will of the contractual party’s.
Consequently, according to the rules of this law without the consent of the parties, there could be no contract.
The all sources used, prove that in the first stages of development of this law most of the contracts were related orally, whereas later contracts were mainly related to writing form.
In order to consider the validity of a contract, only the agreement (dealing) between the contractual party’s would be sufficient, but the essential elements that determinate the validity of the contract were the ability of the contracting parties and their will should not be affected by defects in consent such as mistake, duress, fraud or misrepresentation.
If the will was accompanied by such a defect of consent, the contract could be avoidable.46 As it turns out, Islamic law, among other things, had addressed the issue of wills https://www.rwi.uzh.ch/dam/jcr:00000000-0bb90e00-ffffffffb2e82aa8/HistoricalOverviewandSources.pdf; see also: Lily Zakiyah Munir, General Introduction to Islamic Law.
Kamali, (1991) 18, p. 7, Available at: http://www.lfip.org/laws718/docs/lilypdf/Introduction_to_Islamic_Law.pdf 42 Abu Umar, Faruq Ahmad, Law and Practice Of Modern Islamic Finance in Australia, Sydney 2007, p. 41 43 Halil Cin, Ahmet Akgündüz, Türk Hukuk Tarihi (Turkish History of Law), I, Konya, 1990, p. 77 44 The science that deals with the Sharia law study are called “fiqh”, while the good jurist of sharia law was called “muftis”.
45 Ismadji, above n 1, p. 212 46 Ala’eddin, Kharofa, The Loaun Contract in Islamic Shari’ah and Man-Made Law: A Comparative Study, (Kuala Lumpur, Leeds Publications, 2002) p. 15 http://dergiler.ankara.edu.tr/dergiler/19/835/10563.pdf http://dergiler.ankara.edu.tr/dergiler/19/835/10563.pdf http://pgil.pk/wp-content/uploads/2014/04/Sources-of-Islamic-Law.pdf http://pgil.pk/wp-content/uploads/2014/04/Sources-of-Islamic-Law.pdf http://pgil.pk/wp-content/uploads/2014/04/Sources-of-Islamic-Law.pdf https://www.rwi.uzh.ch/dam/jcr:00000000-0bb9-0e00-ffff-ffffb2e82aa8/HistoricalOverviewandSources.pdf https://www.rwi.uzh.ch/dam/jcr:00000000-0bb9-0e00-ffff-ffffb2e82aa8/HistoricalOverviewandSources.pdf https://www.rwi.uzh.ch/dam/jcr:00000000-0bb9-0e00-ffff-ffffb2e82aa8/HistoricalOverviewandSources.pdf http://www.lfip.org/laws718/docs/lily-pdf/Introduction_to_Islamic_Law.pdf http://www.lfip.org/laws718/docs/lily-pdf/Introduction_to_Islamic_Law.pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 23 that could be expressed in the cases of the conclusion of the contracts.
Thus, besides duress and mistake, also considered fraud as a defect in consent.
In Islamic law, a number of words were used to mean fraud, such as: hud'a or hadi'a, mekr, keyd, tedlis, tağrîr, gaşş or gışş.47 Solutions addressing the fraud involved in Islamic law did not make any difference to the solutions that this phenomenon had made to other ancient laws.
In this symmetry, this right provided that “If approval was granted under the influence of fraud, the contract existed, but flawed”48.
Hence, within the scope of this right according to fraud, the intention was to create a rephrasing on the other side with an untrue view to concluding a contract that was unfavorable to that party.
According to this definition, the contract was concluded under the fraud effect, when the other party acted in a way other than what he submitted.
For example, dyeing clothes for the purpose of introducing them as new was considered fraud.
The Islamic law divided fraud into verbal fraud “Fiyat”, and fraud by action named “Vasıf”.
This law even recognized the deception made with active and passive actions (mere silent).
Also, this law regulated the fraud done by a third person, and always the deceived party may rescind the contract.49 This means that the fraud-related contracts were considered avoidable contracts, but that annulment depended on the party's initiative.
The right to rescind the contract related to fraud had the deceived party “hiyar – i tağrir”.50 The same opinion was given by 47 Köse Saffet, İslam Hukukunda Kanuna Karşı Hile, Birlesik, İstanbul, 1996, p. 94 48 Ahmed, Akgündüz, İslam ve Osmanlı Hukuku Külliyatı, 2.
Cilt Özel Hukuk II, İstanul, 2012, p.232 49 Mustafa, Ahmed Ez-Zerka and Servet, Armağan, Çağdaş Yaklaşımla İslam Hukuku, (1993) Cilt 1, İstanbul, p. 282-286 Imam Malik when he cited that “the right to avoid the contract was given to the deceived party”.51 Also as conditions for annulment of the contract in Islamic law, were known; wiliness, false statements, silence or concealment of facts, and fraud done by a third party.
In such cases, the deceived party could avoid the contract within one year from the day they know about the fraud.52 Thus, the cost of the object of the contract constitutes an important element in the contracts based on good faith.
So, if one of the parties enters into such a contractual relationship (e.g.
the buyer) who has neither knowledge of the product nor does have experience in business, and on the other hand (the seller) who is deemed to have done fraudulent conduct, in case he is making false statements or hiding facts that result in the conclusion of the contract,53 and the contract had a high financial cost, in this case to the deceived party was recognized the right for avoiding the contract.
During the Ottoman Empire, the broader scope was from the Islamic law, namely Sharia’s law.
Ottoman law had three court systems, one for Muslims, one for nonMuslims, and another trade court.
The Islamic law, as noted above, applied only to the Islamic community, and not to the one who was not a Muslim.
Because of the influence of Europe within the Ottoman Empire, it was constantly proclaimed that there would be changes in the justice system of this Empire, hence within Islamic law itself.
The reforms were based on the French model, in 1877 they were introduced through 50 Ibid 51 Hayredin, Karaman, İslam Hukuku, Ana Hatlarıyla 3, (2017) Cilt, 19.
Istanbul, Baskı, ensr, p.79 52 Ahmed, Akgündüz, İslam ve Osmanlı Hukuku Külliyatı, 2.
Cilt Özel Hukuk II, İstanul, 2012, p. 233 53 Ibid, p. 80 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 24 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships the Civil Code called “Mecelle”.
54“Mecelle” was a Civil Code that was implemented during the last period of the Empire, known by his full name “Mecelle-i Ahkâm-ı Adliyye”.55 Mecelle-i Ahkâm-ı Adliyye, consisted of the introduction, 16 books, and 1851 articles.157 These books addressed; büyü (sales), icârât (leases), bail, pledge, trade, claims, etc.56 These books addressed: büyü (sales), icârât (leases), bail, pledge, trade, claims, etc.57 “Mecelle” was applicable in Turkey until 1926 when it was replaced by the Turkish Civil Code, while in Albania until 1928.
In some other countries such as Cyprus and Palestine, this Code was applicable until the 60s and 70s, and in Yemen, it was applied until 1992.58 In Mecelle the phrase “tağrir”, had the definition of fraud.
The party that was deceived was entitled to avoid the contract “hıyar-ı tağrir”, and if it had any damage, it could seek compensation for the damage from the other party.
According to “Mecelle”, the right to annul the contract due to fraud could be used within one year from the day it was learned about fraud, and under any circumstances, the statutory limitation was three years59.
Finally, it can be concluded that in Turkey until 1926, among others, the Sharia law and the Civil Code called “Mecelle” were applied, while the issuance of the Civil Code of 1926 abolished other laws applied until that time.
Islamic law is also considered quite advanced in dealing with fraud.
Islamic law 54 Osman Kaşıkçı, İslâm ve Osmanlı Hukukunda Mecelle, Osmanlı Araştırmaları Vakfı Yayınları, İstanbul, OSAV, 1997, p.61-71 55 Şimşirgil, Buğra, Ekinci, Ahmed Cevdet Paşa ve Mecelle, İstanbul, KTB, yayiniari, 2009, p. 49, Available at: http://www.muharrembalci.com/kitaplika/32.pdf 56 Mustafa Yildirim, Mecelle’nin Küllî Kâideleri, İzmir, 1st edition, İzmir Theology Faculty Foundation Publications, 2001, p.15 is also considered quite advanced in dealing with fraud.
In particular, the detailed treatment of contractual relations in Mecelle is considered a major advantage, which greatly influenced the followed codes and laws issued in those countries where Sheria has been applied.
Fraud in the Old Turkish Law The data’s on the ancient laws of Turkish obligations are based on the legal documents inherited by the Uyghur’s.
During the time of the Uyghur’s, there was a lifetime of more trade action, as well as numerous contracts were prepared in the framework of certain rules.60 The history of Turkey's development was very long that included a long period of time, as well as various systems within it.
This reality, also based on the nature of this paper, is hard to handle the fraudulent occurrence into obligation relationships, in a detailed and general context.
Based on this fact, in the continuation of this doctoral dissertation, this unlawful phenomenon will be elaborated in the way it was addressed in the framework of the civil legislation which came into force in 1926, and was applicable until 2012, when the new Code of Obligations was issued.
Turkey's Civil Code and Turkey's Obligation Code of 1926 entered into force 90 years ago, which changed social life in many important aspects.
The approval of these laws was a very courageous step from Ataturk, and Mahmut Esat Bozkurt who was the Minister of Justice at that time, a step that 57 Ali Himmet, Berki, Açıklamalı Mecelle (Mecelle-i Ahkâm-ı Adliyye), Hikmet Yayınları, İstanbul 1979, p. 103 58 Şimşirgil, above n 55, p. 59 59 Ahmet, Akgündüz, Türk Hukuk Tarihi, 2.
Cilt, Özel Hukuk, Istanbul, 1996, p. 196-197 60 Aysun Dursun, Türk Halk Hukuku, Istanbul, 2016, p. 154; see also: Halil, Cin, Gül Akyılmaz, Türk Hukuk Tarihi, 9.
Baskı, Konya, 2017, p. 49 http://www.muharrembalci.com/kitaplika/32.pdf Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 25 made a big turnaround on Turkey's journey.
Many scholars considered this an important step not only in the field of justice but also in the social sphere, such as the well-known Professor Kudret Ayiter said: "We have not advanced only 40 years since 1926, but maybe 2000 years" (quoted in 1966).61 The Code of Obligations of 1926,163 in addition to other issues related to obligations (principal aspects and types of obligations), central and important place was devoted to contracts.
Concerning the contracts, this Code paid special attention to the defects in consent, which is addressed in the provisions of Arts.
23 to 31 thereof.
In conformity with the relevant legal remedies as defects in consent under this code were considered: mistake, fraud, and duress.
Turkey's Obligation Code of 1926 regulates the issue of fraud in contracts by Art.
28 and within the two separate paragraphs.
“When a party concludes a contract under the effects of another party's fraud, it is not related to that contract even if its mistake is not essential” (first (1) par.
of Art.
28).
In accordance with this legal deception, provision existed in each case when one party caused or held back the other party with the intention of thereby affecting it to enter into a contract that would be detrimental to it.
Fraud is considered to exist not only in cases where it was related to the essential elements of the contract but also in cases of non-essential elements.
Such a solution is considered important for the fact that through it, the Turkish lawmaker 61 Ayiter, Kudret, Türk Medeni Kanununun 40 İnci Yili, 4 Ekim 1966, Ankara Üniversitesi Hukuk Fakültesi Dergisi, 1(1), p. 152.
Available at: http://dergiler.ankara.edu.tr/detail.phpid=38&sayi _id=213 62 Lütfü Dalamanli, İçtihatlı ve örnekli Tatbikatta Satış Vaadleri Ölünceye Kadar Bakma ve Miras Taksim Sözleşmeleri, (1980) Büyükçekmece, , p. 22-23 defended the deceived party in all the dimensions and types of fraud seen in the context of obligational relationships.
Such a legal solution accords the right of the deceived party to demand annulment of the contract within one (1) year.62 Meanwhile, according to second (2) par.
of Art.
28 of this Code of Obligations, it is stated that “a party concluding a contract under the effects of fraud from a third party is not bound by the contract if the other party knew or could have known about the fraud”.
According to this legal provision, fraud also existed when it was done by a third person.
This means that the deceived party was not related to the contradiction nor when the fraud came from a third person.
However, in order for this situation to emerge, it was required that the other contracting party knew or ought to know about fraud.63 Based on this, the deceived party was entitled not to fulfill the obligations arising from it, from a contract whose affiliation had been made under the effects of fraud through the third parties, if the other party knew or should have known about the fraud.
According to the Turkish Obligation Code of 1926, the fraud-related contract was considered a rescindable contract.
This means that that “ex lege” was not considered invalid, but could be declared such if it was declared by the deceived party.
Due to the defects in consent, the contract was considered avoidable or like it had not been concluded at all.64 This Code, in addition to the possibility of annulment of the 63 The expression "should know" about the fraud, is referring to cases where a contracting party, at the time of entering into a contract did not know about fraud, but looking to his general knowledge and experience he should have known about the existence of this unlawful phenomenon.
64 Akif, Aydın, Türk Hukuk Tarihi, 7 baskı, Instanbul, 2009, p. 378 http://dergiler.ankara.edu.tr/detail.phpid=38&sayi_id=213 http://dergiler.ankara.edu.tr/detail.phpid=38&sayi_id=213 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 26 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships contract, concluded under the effects of fraud on the deceived party, also knew the right to compensation for the damages suffered by such a contract.
It is worth mentioning the fact that Turkey's Obligation Code of 1926 represented an advanced code of the time.
This finding results from the fact that its solutions to the fraud phenomenon are solutions that almost similarly contained other relevant advanced laws of that period of time.
Also, we can freely say that the old Turkish law is quite influenced by Islamic law.
Therefore, even the treatment of fraud as an unlawful act has been affected by Islamic law.
A short historical review of fraud in Kosovo Given the fact that Kosovo has long been governed by many foreign regimes and powers, it is natural, that in its territory different legislation was applied.
Looking at this, during the time of administration from the Ottoman Empire in Kosovo, alongside the customary Albanian law, which was applied in great measure,65 also acted the law of Sharia, Turkish Canons, and the Turkish Civil Code of 1926.
Thus, in Kosovo at that time there was a so-called juridical dualism because, in addition to the application of the right of Sharia and Turkish Civil and Procedural Law, the Albanian Customary Law has also been applied within it the civil law (including the right to obligations).
Following the occupation of the Kingdom of Slovenes-Croats-Serbs (1918), civil legislation began to be applied in Kosovo, which had the blessing of this Kingdom.
In this regard, it should be emphasized that in relation to the Albanian 65 Durham, Edith, Brenga e Ballkanit, Naum Veqilharxi, Tiranë, 1998, p. 221-222 community this legislation was abused greatly.66 This was due to the fact that with the aim of populating Kosovo with Slav populations, numerous documents were issued through this, which the population was transferring the property rights of the land, housing, and everything else, all this to detriment of the majority Albanian population.
These documents were also backed up by various false and fraudulent contracts, but which resulted in the legalization of those properties because the regime of this kingdom was behind them.
In Post – World War II, Kosovo, as it was under the jurisdiction of Socialist Yugoslavia, the civil and procedural legislation which in that country was applied.
In this aspect, it is worth mentioning, in particular, the Law on Obligational Relationships of 1978, which in its format had advanced relatively much in terms of solving many issues and dilemmas involving void contracts, including those related to fraud.
After the end of the war in 1999, NATO's intervention and deployment of the United Nations Interim Administration Mission in Kosovo (UNMIK) in order to fill the legal vacuum, by UNMIK Regulation No.
1999/1 and no.
1999/24 as legislation applicable in Kosovo was proclaimed the legislation of 28 March 1989, which it was in force in Kosovo.
Thus, with regard to the right to obligations, in Kosovo was applicable the Law on Obligational Relationships issued in 1978.
Thereafter, Kosovo in 2012, for the first time in its history has its own Law on Obligational Relationships, which ultimately dissociated the legal continuity of the previous legislation in the law of obligation (LORK, 66 Castellan, Georges, Histori e Ballkanit, Tiranë, 1997, p. 257, 258 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 27 2012, Law No.
04/L-077).
In the context of fraud that is the subject of this dissertation, will be elaborated hereinafter.
a.
Fraud according to customary Albanian Law The Albanian customary law, summarized in the Code of Lekë Dukagjini, the Code of Skanderbeg, and the other canons from different Albanian territories (the Code of Labëria, Code of Dibra, etc.)
contains, among other things, a system of civil and procedural legal norms regulating fundamentally matters of civil law affairs, including those of obligational relationships character.
Consequently, within this doctoral dissertation, modest attempts are made to explain the issue of fraud in obligational relationships in the way that it has dealt with this law,67 especially the Code of Lekë Dukagjini, which was the only code applied in the territory of Kosovo at that time (Canon of Lekë Dukagjini, 1999).
This explanation is of interest to the fact that not a few norms of customary law, along with positive law, have long been preserved in people's consciousness and they have acted in parallel with it.
Dualism or legal pluralism is a historical reality not only for Kosovo but also for many other countries in the world.68 67 The customary Albanian law was spread over a considerable number of canons.
Such were, the Canon of Lekë Dukagjini (which was mainly applied in Kosovo), the Canon of Skanderbeg (see: the publication Shkodra, 1993), the Canon of Laberia, the Canon of Dibra, the Canon of Puka, etc.
68 Hajdari, Azem, Juvenile criminality in Kosovo, Sarbrucken, Lambert Academic Publishing, 2016, p. 16 69 Vjeta V., Dhetuer, Hylli i dritës Nr.
12, Shkodër, 1924, p. 549 70 Elkezi Ismet, E drejta zakonore penale e shqiptarëve, Tiranë, Toena, 1983, p. 41 The Lekë Dukagjini Canon, contains 12 books, 24 chapters, and 1263 Articles.69 In the Code of Lekë Dukagjini, civil legal norms, especially those referring to the right of obligations, were scarce.
They were not properly sorted and there were some repetitions.70 Within the framework of the obligations–related norms, some issues directly related to the contracts, which were of several types and were of interest for the improvement of the lifestyle of the citizens of Kosovo, were regulated, with a particular approach on avoidable contracts.71 According to the Canon of Lekë Dukagjini and other Albanian codes, contracting subjects were natural persons who possessed legal capacity and the ability to act.72 In this code related subjects are presented as follow: First, the contract was concluded between the head of the family who represented the house as a creditor or a debtor73.
With the blessing of the head of household, as a subject of the contract could be one another family member, but it should always be a man.
Second, when the contract was linked between the brothers or between brotherhood and a particular person, as a rule in the name of brotherhood acted the one who represented him, who was authorized to carry out civil legal actions and not whoever, but 71 Elezi, Ismet, Omari Luan etj., Historia e shtetit dhe e së drejtës në Shqipëri, Pjesa II, Tiranë, 1997, p. 42 72 Relationships between citizens could have the right content and obligations of property of wealth and juro, but the majority were of a wealth of character.
73 See, Article 20 of the LDC; To manage the house belongs to the oldest person who lives at the home, usually it may be the first brother.
The fourth paragraph of this canon grants the owner a right to buy, sell or change land (fields, work tools, houses, etc.
), animals, and other things.
According to these kinds of cases, we could refer also to the Articles 25, 62 and 105, of this Canon.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 28 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships only the one who was in charge of managing the partnership economy of the brotherhood.
Third, when one of the contraction party’s was collective in the contract, for instance, the village as a subject in the contract was represented by the headman of the village (the eldest man in the village, for example, when signing a lease contract)74.
Fourth, as subjects of obligations relationships (as a general rule) were men, while women had very limited rights, in many aspects of their life, including them of obligations relationships.
Exceptions to this general rule made some contracts, such as lending the household items (mostly food) such as flour, milk, cheese, etc., where the householder could also be a woman, who managed the housework.75 Fifth, the contracts were concluded orally, based on the moral principle of the pledge of honor, trust, and good faith.
Naturally, this did not exclude cases of the conclusion of written contracts when it comes to the sale of immovable properties, houses, land, etc.
Looking at this aspect, it was essential to have a contract based on the free will of the parties.
The Lekë Dukagjini Canon, regarding the execution of the obligations, demanded that this should be done with precision.
As a rule, the contract was executed voluntarily by the parties.
When there was disagreement, the matter was adjourned and resolved by elders, whose decision was compulsory for the parties to enforce.
Lekë Dukagjini's Canon recognized these ways of extinguishing the obligations: by paying the debt, by committing the debt, 74 Elezi, Ismet, E drejta zakonore e Labërisë në planin krahasues, Tiranë, 1994, p. 120 75 Elezi, Ismet, Kanuni i Labërisë, Botiment Toena, Tiranë, 2006, p. 19 76 Elders had the meaning of the court.
It consisted of the oldest and knowledgeable peoples.
The elders (oldest men) in the composition were attributed or by forgiving.
In the contractual obligations relationship of this Code, the limitation periods were not known.
Debt had to be redeemed at any time.
When the debtor passed away the debt was passed to the heirs who were forced to pay for it.
Canon of Lekë Dukagjini's had also addressed the issue of a defect in consent in conclusions of contracts.
He considered invalid any contract related to fraud, duress, and threats.
Fraud is considered to exist when, for example, selling animals to the buyer, also work tools and weapons, etc., with some defect for which he did not tell about when the contract was concluded.
Though the canonical solutions do not expressly emphasize, it was a rule that in these cases the defects were of essential character, which seriously deceived the will of the contracting parties, because the purchased item was largely dysfunctional, of other different quality or origin than what the parties had agreed to, etc.
This usually came to light in cases where, for example, a weapon was purchased that had been masked by defects that made it even ineffective (cracked and shortened barrel, etc.).
The contract concluded under the effect of fraud, could be made void from the group of elder people.76 They could decide that the contract could be annulled in whole or in particular.
Obviously, the level of avoidable of the concluded contract based on fraudulent conduct depended on the degree of deficiency that contained the subject of the contract, the circumstances of the fraud, the interest of the parties, and so on.
from both sides.
The number of elders members to settle the cases between the parties, depended and it was different from case to case, but usually, there were three or more elders.
Elders decided unanimously or by a simple majority vote.
Individual elders were able to engage, in solving certain case issues.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 29 According to the solutions provided in the Canon of Lekë Dukagjini, the fraudulent party that had put the party to conclude the contract under the effect of fraud was under the obligation to compensate for the caused damage.
Compensation for the damage was done to the benefit of the deceived party.
The amount of damage compensation in many cases was disproportionate (they paid a higher price) compared with the damage that the contractor had suffered and this was due to the misuse of the trust.
Looking at this, the Art.
740 of this Canon, clarifies the fact of the obligation to compensate the damage of any party who in any fraudulent contract had suffered any damage.
The Canon of Lek Dukagjini does not recognize the penalty as a punishment for the person who had caused the damage to the other contracting party, including situations when it was done fraudulently.
Looking at this aspect, the Canon says “the damage has a price, but not penalty”77 and “the damage has a price, but no rifle”78.
This means, that for fraud in concluding contracts, the Canon of Lekë Dukagjini did not foresee the punishment of the deceiver by penalty or murder.
b.
Fraud under the Law on Obligations on the Former Yugoslavia After World War II, the Yugoslav military administration on 8 February 1945 was set up, which aimed to forcefully stamp out any attempts by the Albanian population to achieve national aspirations for democracy79.
The occupation of Kosovo by the Yugoslavian army, besides being associated with terrorist acts, military operations, and massacres, was also followed 77 See: Article 735 of the LDC.
78 See: Article 739 of the LDC.
79 Encyclopedic overview of Kosovo, 1999, p. 118 by the imposition of its legislation.80 Initially, the laws of the Kingdom of Serbs Croats and Slovenes were imposed, and then the new laws were gradually being created in the formal republic of Yugoslavia.
This approach made no exception to civil law, including that of obligational relationships.
Since the dimensions of the frameworks under this subject of doctoral dissertation have another aim, my focus is on the reflection of the structure, and especially the way of regulating the issue of defect in consent to the contract, with a special focus on fraud, regulated by the Law on Obligations of the Former Yugoslavia of 1978 (Article 58).
According to this Law, subject of a contract may be a natural person, who’s having legal capacity and ability to act.
The contract was considered to be concluded when the contracting parties had agreed on the essential elements of the contract.
The Law on Obligations of the Former Yugoslavia addressed the issue of defects in consent between Arts.
53 to 59.
This law as a defect in consent includes duress (Art.
53), mistake (Art.
54), mistake in the motive for a gratuitous contracts (Art.
55), misunderstanding (Art.
56), indirect declaration (Art.
57), fraud (Art.
58) and void contract (Art.
59).
A simple scientific analysis that can be made of these articles reveals the fact that this Law, in essence, recognizes three types of defects in consent: duress, mistake (though treated separately as mistake and mistake in the motive of the gratuitous contracts, controversy and indirect declaration) and fraud (even though treated purely as a fraud and as a void contract).
Under this law, fraud existed when certain actions were taken by one of the contractual party’s, or when concealing the 80 Braha, Shefqet, Gjenocidi serbomadh dhe qëndresa shqiptare, (1944 – 1990), Gjakovë, 1991, p. 498 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 30 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships facts for the purpose of causing or holding the other contracting party to mislead.
In essence, here mistakes are over the decisive facts that causes the validity of the contract.
But fraud could also be the consequence of certain conducts or inaction, or the interference of the third persons.81 The solutions addressed in the Law on Obligations of the former Yugoslavia, the fraudulent conduct was considered as third kind of defect in consent in the contractual relationships.
As noted above, fraud is addressed precisely in Art.
58 of this Law, but somehow in a more specific sense, was extended to Art.
59.
In Art.
58 of the Law on Obligations of the former Yugoslavia, fraud was addressed within four separate paragraphs: In the first paragraph, the Yugoslav lawmaker had defined the meaning of fraud and the consequences of entering into a contract under it.
According to this legal provision, fraud had existed if one party caused the other party to mislead or mistaken it in order to postpone the conclusion of a contract which was unfavorable to it.
Fraud was a cause to rescind the contract.
Consequently, the fraud – related contracts was considered an avoidable contract.
Fraud appears to have been the basic element for the Yugoslav legislature to grant the deceived party the right to avoid such a contract.
For the existence of fraud conforming to the legal solution defined in this paragraph, two conditions should be fulfilled: the first one is referred to the purpose.
The purpose existed when it one of the contracting party willfully mislead the other party to conclude 81 Perović Slobodan, Stojanović Dragolub, Komentar Zakona o Obligacionim Odnosa, Kragujevac, Kulturni centar, 1980, p. 246: see also: Hajdari, Egzonis, Erlüle, Fulya, Elements, types and consecuences of fraud according to Obligation Law – A comparative approach the contract under the effects of fraud.
But the second condition that was closely related to the first one, it was the one expressed in the undertaking of various actions through which a misleading the relevant facts of the contract.
“To have fraud as a defect in consent, there was a need for causal relationship between fraud and declaration of will.
Fraud always assumes “mala fide” on the side of the party that uses it”.82 The other (conscientious) party could request the annulment of the contract even when the fraud was not essential.
The fraud could be made with active and passive conductions.
But essential was considered to be only the fraud that had a strong impact on the other party without which the contract would not have been concluded.
The second (2) par.
of this article established another right of the deceived party, to compensation for damage.
The party who had concluded the contract and was being under effect of fraud, had the right to claim compensation for the damage caused.
The realization of this right was related to whether the contract was declared avoid or not.
Therefore, when the contract declares void, the deceived party may ask for compensate for the damage suffered from the fraudulent party.
The third (3) par.
addressed the issue of fraud when it came from a third person.
The solution addressed in this legal provision provided that when fraud was committed by a third person, it affected the contract itself.
This means that such contract may be rescind from the deceived party.
However, in order between legislation in Turkey and Kosovo, International Comparative Jurisprudence, Vol.
4 / Iss.
2, 2018, p. 164, Available at: http://dx.doi.org/10.13165/j.icj.2018.12.007 82 Ibid.
Perović Slobodan, p. 247 http://dx.doi.org/10.13165/j.icj.2018.12.007 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships | 31 for this to happen, it was required that the other contracting party at the time of the conclusion of the contract could be aware or ought to have known about the fraud.
The fourth (4) par., addresses the issue of annulment and compensation of damage in cases of gratuitous contracts under the effects of fraud from a third party.
The law expressly stated the fact that even gratuitous contracts could be annulment, irrespective of whether the contracting party knew or ought to have known about the fraud at the time of the conclusion of the contract.
The compensation rules were identical as in cases where fraud was made by the contracting party, or when it made by a third person; The importance was the causal relationship between the the contract and the fraudulent conduct.
As noted above, the fraud-related contract could be annulled.
It could be annulled at the request of a deceived party when it was filed within the statutory deadline required (Art.
111), for the reasons under which the private interest was violated.
The contract should have had legal effects, although their avoidance was uncertain, as this depended on the will of certain persons, for which reason, in the legal theory, they were called contingent contracts.83 Despite this fact, at the request of the deceived party to annul the contract, the court was obliged to annul it, which means that its decision had constitutional effects.84 The Law on Obligations of the Former Yugoslavia represents a very advanced law at that time, including the period of existence of the former Yugoslavia and beyond it.
This finding is based on the fact that almost all the states that emerged from the former Yugoslavia have had a basic pattern of issuing their laws on the obligational 83 Radišić Jakov, Obligaciono pravo, Opšti deo, S.A.M Konsalting Center BGD, Beograd, 2004, p. 175 relationship.
This finding also refers to Kosovo as well.
According to this, we can conclude that this law has been an impact on many subsequent laws, especially for the state that has emerged from the former Yugoslavia, including Kosovo.
Moreover, the Law on Obligation Relationships of Kosovo stipulated fraud in the same way as this law did.
IV.
CONCLUSIONS The practical treatment of fraud is likely to have occurred since the genesis of the appearance of this phenomenon, for its more appropriate treatment can be talked about after the implementation of the first legal systems, which in their focus had contractual relationships.
Consequently, the written sources of the phenomenon of fraud are initially manifested in Babylonian law, to continue with the old Greek law, Roman law, Islamic law and the customary laws.
According to Hammurabi Code it is not mentioned the phenomenon of fraud in the contractual relationships of the parties at all.
However, this does not mean that this legal act did not at all address the issue of this phenomenon.
Also, the Ancient Greek law has considered the issue of defects in consent in contractual relationships relatively late.
Under this law, the fraudulent party could be prosecuted and forced to compensate the damage they caused; same was under Roman law as well.
The serious treatment of the defects in consent in contractual relationships under Roman law starts with the recognition of bona fide contracts.
Moreover, Islamic law is considered quite advanced in dealing with fraud, especially in elaborating its consequences.
On the other hand, the Canon of Lekë 84 Nikolić Ďorđe, Obligaciano pravo, Organizacija za pravnu edukaciju i kulturu prava "Projuris", Beograd, 2006, p. 57 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 32 | Hajdari The History and Origin of Fraud as a Defect in Consent in Contractual Relationships Dukagjini, has also addressed the issue of the defect in consent in contractual relationships.
This canon considered avoidable any contract related to fraud, duress, and mistake.
But under this canon, if the contract was concluded under the effect of fraud, could be avoid from a group of elder peoples.
Plus, the fraudulent party may be presucated, same as in and to compensate the dameges that have been caused.
Furthermore, the Law of Obligations of the Former Yugoslavia of 1987, gave the deceived party the right to avoid the contract relating to fraud and also could be asking for the compensation.
This law was advanced from the previous laws but was also the main source that the Law on Obligational Relationships of Kosovo has based on.
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238 | DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.07 Developing Anti Domestic Violence Policy during Covid-19 Pandemic in Indonesia Ani Purwantia, Fajar Ahmad Setiawanb aDiponegoro University Faculty of Law Email: ani_purwanti81@yahoo.com bHuman Rights Violation Analyst, Indonesian National Commission of Human Rights (Komnas HAM) Submitted : 2020-09-09 | Accepted : 2020-09-27 Abstract: COVID-19 (a new strain of corona virus) has been declared a global pandemic.
In Indonesia, the measures announced over the past few months have drastically changed people's daily lives.
However, there are negative, unintended consequences.
As the virus continues to spread around the world, it brings many new stresses, including physical and psychological health risks, isolation and loneliness, the closure of many schools and businesses, economic vulnerability, and job loss.
Through all of this, children and their mothers are very vulnerable (End Violence against Children, 2020) to the risk of domestic violence.
Currently, COVID-19 is a serious threat to the human population on earth because even though it has a health security dimension, it has an impact on other security dimensions.
This article concluded that the domestic violence, in gender mainstreamed legal studies, can be included as a threat to human security (human security) which is exacerbated by the pandemic.
In the context of policy, COVID-19 requires the participation of various national and cross-country actors, countries and state actors in efforts to resolve it.
In that category, the state needs to work with various non-state actors to eradicate domestic violence.
Keywords: Domestic Violence, Policymaking, COVID-19 Pandemic, Indonesia I.
INTRODUCTION The increasing number of COVID-19 cases has led the Government to issue instructions for restricting leaving the house, even since March 16 2020 all civil servants have worked at home, and some private companies have treated the same instructions.
The Ministry of Manpower noted 2.8 million workers had been laid off during the COVID-19 pandemic because the companies they worked for were not operating.
The high wave of layoffs, loss of community livelihoods, followed by other impacts such as the emergence of potential for gender-based violence (such as; sexual violence, domestic violence, online genderbased violence and other forms of violence) experienced by women after the issuance of the determination of COVID-19 as a National disaster in the Presidential Decree Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 239 12/2020 concerning the Determination of the Non-Natural Disaster for the Spread of Corona Virus Disease 2019 (COVID-19) as a national disaster.
This condition causes the burden of women to increase where in addition to having to take care of the household, assisting children's schoolwork, even looking for additional family economies.
This double burden triggers household conflicts to get stronger, which leads to potential violence.
The Indonesian Ministry of Women and Child Empowerment data for the period March 2 April 26 2020 shows the number of cases of violence against adult women (> = 18 years) has reached 173 cases with an average of 3 cases per day.
Meanwhile, the number of victims of violence against adult women reached 174 victims with 66% (114 people) being victims of domestic violence and 6% (11 people) being victims of trafficking in persons.
Physical and mental violence against women, for example, have been included in international and regional human rights conventions which have a legally binding nature against the state that has ratified them.
In this regard, the international community has created an effective legal standard and pays special attention to domestic violence.
These international human rights documents include, the Universal Declaration of Human Rights ("UDHR"), the International Covenant on Civil and Political Rights ("ICCPR"), and the International 1 Peterman, A., Potts, A., O'Donnell, M.et al.
Pandemics and Violence Against Women and Children.
(2020).
Center for Global Development Working Paper 528.
Washington, DC: Center for Global Development.
https // www.cgdev.org/publication/pandemics-andviolence-aga inst-women-and-children 2 Usher, K., Bhullar, N., Durkin, J., Gyamfi, N. and Jackson, D. (2020), Family violence and COVID‐ 19: Increased vulnerability and reduced options for Covenant on Economic, Social and Cultural Rights ("ICESCR") which become standards general regarding human rights, where victims of domestic violence can sue their respective countries.
Incidents of domestic violence have shown that the state has failed to pay attention to the complaints of victims.
Then a country can be subject to sanctions if the country is a member of the international instruments as previously mentioned.
The same can be done under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and its Protocols.
Domestic violence refers to threats or other violent behaviour within the family that may be physical, sexual, psychological, or economic, and can include child abuse and intimate partner violence1.
Domestic violence during a pandemic is associated with a variety of factors including economic stress, disaster-related instability, increased exposure to exploitative relationships, and reduced options for support2.
Due to social isolation measures being implemented around the world to help reduce the spread of COVID-19, people living in situations of volatile domestic violence are confined to their homes.
Social isolation exacerbates personal and collective vulnerability while limiting accessible and recognized options for support3.
In many countries, including Australia, we have seen increased demand for domestic violence services and reports of an increased risk of children not attending support.
International Journal of Mental Health Nursing, 29: 549-552. https://doi.org/10.1111/inm.12735 3 Van Gelder, N., Peterman, A., Potts, A., O'Donnell, M., Thompson, K., Shah, N., & Oertelt-Prigione, S. (2020).
COVID-19: Reducing the risk of infection might increase the risk of intimate partner violence.
EClinicalMedicine, 21, 100348.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 240 | Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… school4, a pattern similar to previous episodes of social isolation linked to epidemics and pandemics (Boddy, Young & O'Leary 2020).
In Australia, when stay-athome orders came into effect, police in some parts of the country reported a 40% reduction in crime overall, but a 5% increase in calls for domestic violence5.
At the same time in Australia, Google reported a 75% increase in Internet searches related to support for domestic violence6.
This pattern is repeated internationally.
Reports of domestic and domestic violence have increased worldwide since social isolation and quarantine measures were introduced.
Recently, anecdotal evidence from the United States, China, Brazil, and Australia indicates an increase in violence against intimate partners, women and children due to isolation and quarantine.7 China, the first country to implement mass quarantine in Wuhan province, saw a threefold increase in domestic violence incidents in February 2020 compared to the previous year.8 As Europe imposed quarantine measures in an attempt to slow the tide of infection, the Italian 4 Duncan, E., ‘NSW domestic violence support groups warn coronavirus isolation is prompting surge in demand for services’.
ABC News Australia.
Retrieved on April 15, 2020 <https://www.abc.net.au/news/2020-0327/coronavirus-domestic-family-violenceCOVID-19-surge/12096988> 5 Kagi, J., ‘Crime rate in WA plunges amid coronavirus social distancing lockdown measures’.
ABC News Australia.
Retrieved on 10th April, 2020 from: <https://www.abc.net.au/news/2020-0408/coronavirus-shutdown-sees-crime-ratedropin-wa / 12132410> 6 Poate, S. (2020).
75% increase in domestic violence searches since Coronavirus.
NBN News.
Retrieved on 7th April, 2020 from: https://www.nbnnews.com.au/2020/03/31/dvsearc hes‐coronavirus/ 7 Campbell, A. M., An Increasing Risk of Family Violence during the COVID-19 Pandemic: Strengthening Community Collaborations to Save Lives.
(2020).
Forensic Science International: Reports, 100089; above n.1; government began tasking hotels with providing shelter for a growing number of people fleeing abusive situations.9 Likewise, France reported a 32%-36% increase in complaints of domestic violence following the implementation of self-isolation and quarantine measures.10 France has also started assigning hotels as shelters for those fleeing harassment.
As quarantine measures expanded to the United States, individual states reported a similar increase in the incidence of domestic violence ranging from 21% to 35% (2020 stakes).
Returning to Europe, Britain is also seeing concerns about increasing violence in families.11 There have been reports of homicides related to domestic violence in several countries.12 The UK's National Domestic Harassment Hotline has seen a 25% increase in phone calls since stayat-home measures were implemented13, recording at least eight domestic violencerelated deaths (Knowles 2020).
This article discusses the issue of domestic violence in the context of COVID19 pandemic.
The current existence of COVID-19 is included as one of the security 8 Allen-Ebrahimian, B., ‘China's Domestic Violence Epidemic’, Axios.
Retrieved on 7th April, 2020 <https://www.axios.com/china-domesticviolencecoronavirusquarantine7b00c3ba-35bc4d16-afdd-b76ecfb28882.html > 9 Davies, S. & Batha, E. Europe braces for domestic abuse 'perfect storm' amid coronavirus lockdown, (Thomas Reuters Foundation News, 2020).
10 Reuters News Agency (2020).
As domestic abuse rises in lockdown, France to fund hotel rooms.
Aljazeera.
Retrieved on 7th April, 2020 from: https://www.aljazeera.com/news/2020/03/domesti c‐abuse‐rises‐lockdown‐france‐fund‐hotel‐rooms‐ 200331074110199.html 11 Bradbury-Jones, C. & Isham, L., ‘The pandemic paradox: the consequences of COVID-19 on domestic violence’, (2020) 29(13-14), Journal of Clinical Nursing, https://doi.org/10.
1111 / jocn.15296 12 ibid 13 Kelly, J.
& Morgan, T., ‘Coronavirus: Domestic abuse calls up 25% since lockdown, charity says’.
BBC News.
Retrieved on 12th April, 2020 from: <https://www.bbc.com/ news/uk-52157620> https://www.abc.net.au/news/2020-03-27/coronavirus-domestic-family-violence-COVID-19-surge/12096988 https://www.abc.net.au/news/2020-03-27/coronavirus-domestic-family-violence-COVID-19-surge/12096988 https://www.abc.net.au/news/2020-03-27/coronavirus-domestic-family-violence-COVID-19-surge/12096988 https://www.abc.net.au/news/2020-04-08/coronavirus-shutdown-sees-crime-ratedrop-%20in-wa%20/%2012132410 https://www.abc.net.au/news/2020-04-08/coronavirus-shutdown-sees-crime-ratedrop-%20in-wa%20/%2012132410 https://www.abc.net.au/news/2020-04-08/coronavirus-shutdown-sees-crime-ratedrop-%20in-wa%20/%2012132410 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 241 issues from a health perspective within the framework of a domestic violence issue.
The human security policy approach is used to formulate a policy for handling these problems by considering several things: Evidence Base Approach, which is an evidence-based approach to the national and international agendas for health policy and health research.
In this case, it must be supported by valid evidence, starting from the origin of the person infected, the number of people who interacted with the victim, the number of victims and so on.
Collaboration Method, specifically aims to increase team success when they are involved in collaborative problem solving.
That in making policies related to the problem of handling domestic violence, in this case COVID-19, it requires synergy among crosssectoral stakeholders.
II.
LEGAL MATERIALS AND METHODS The method used by this article to see the impact of COVID-19 on domestic violence is by conducting a literature study method.
This literature study is drawn from secondary legal sources such as laws and several journals, books, and news related to issues of domestic violence, the COVID-19 pandemic and the relationship between the two.
III.
RESULT AND DISCUSSION State of Living during Pandemic in Indonesia The new coronavirus outbreak has been intensifying even more globally, 14 Van Gelder, et al above n.1; Campbell, above n.7 15 News Wires., ‘UN chief decries 'horrifying' rise in domestic violence amid virus lockdown’.
France 24.
Retrieved on 6th April, 2020 from: <https://www.france24.com/en/20200406-unchief-decries-horrifying-rise-in-domesticviolence-amid-viruslockdown> countries are adopting specific measures to slow the spread of the virus through mitigation and containment.14 Social distancing and isolation are critical to the public health strategies adopted by many countries, and in many situations penalties are imposed for anyone who violates these restrictions.
Social isolation requires families to remain in their homes resulting in intense and irreversible contact and the depletion of existing support networks, such as through extended families and through social or community-based support networks for families at risk.
In addition, isolation places children at greater risk for neglect as well as physical, emotional, sexual and domestic abuse.
Due to imposed strategies of distance and social isolation (necessary), and due to the lack of essential resources and the economic consequences of these actions, people globally live in stressful conditions.
Although social isolation is an effective infection control measure, social isolation can have significant social, economic, and psychological consequences, which can be a catalyst for stress that can lead to violence.
United Nations Secretary-General Antonio Guterres recently called on countries to prioritize support and set up an emergency warning system for people living with family violence.15 Pharmacies and grocery stores in France now provide emergency warning systems to help enable people to indicate they are in danger and need support16, through code word recognition to alert staff they need 16 Guenfound, I., ‘French women use code words at pharmacies to escape domestic violence during coronavirus lockdown’.
ABC News.
Retrieved on 8th April, 2020 from: <https://abcnews.go.com/International/frenchwo men-code-words-pharmacies-escape-domesticviolence/story?
Id=69954238> Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 242 | Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… assistance.17 Domestic violence support agencies in some areas have published specific guidelines on domestic violence in COVID-19 with a focus on what friends and family can do to support people who are isolated (Australian Domestic Violence Resource Centre [ DVRCA] 2020).
Charities also recognize the role that neighbours can play in supporting people living with family violence, providing advice on what to listen to and look for when they are alone at home, and encouraging conversations with neighbours.18 The current COVID-19 phenomenon has several impacts on society.
The impacts of COVID-19 range from economic to social.
This is due to the existence of several policies made by the government in an effort to reduce transmission that occurs in the community.
Transmission of the COVID-19 virus through droplets or physical contact has prompted the government to issue social distancing and quarantine policies urging people to stay at home and not go anywhere.
The existence of a period of quarantine has made the number of domestic violence against women and children increase globally.
This occurs because many women are forced to isolate or “isolated” at home with the perpetrators of violence.
Dian Kartikasari, Chairperson of the INFID Executive Board and Secretary General of the Indonesian Women's Coalition (KPI) 2009-2020 said that the period of independent isolation had an effect on creating conflicts in the household.
The cases of violence experienced by women today range from physical, psychological, and sexual violence.
One of the cases experienced by the female head of the 17 Davies & Batha, Above n 9 18 Gerster, J., ‘When home isn't safe: How coronavirus puts neighbors on front lines of household was attempted rape during the spraying of disinfectants.
Isolation is also a risk where individuals will experience PTSD, depression, anxiety, and other mental health.
Johnson and Ferraro (2000) states that perpetrators of domestic violence are divided into two, namely, characterological and situational.
This situation can be a cause of domestic violence in the middle of a time like now due to stress caused by staying at home continuously, stress due to job loss, reduced income and other issues.
The application of social distancing and staying at home also applies in Indonesia.
This is due to the increasing number of corona positive cases in Indonesia.
Based on data from the Task Force (quoted from Idhom, 2020) on April 23, 2020, the number of positive cases of COVID-19 reached 4,557, of which 3,778 patients were still in the process of treatment and the total death toll reached 399.
Currently, the PSBB has also begun to apply in several areas made in the context of preventing the spread of corona in Indonesia.
PSBB is a Large-Scale Social Restriction.
This PSBB regulation has been recorded in the Minister of Health Regulation Number 9 of 2020.
PSBB causes disruption of people's daily activities because these restrictions include school and work vacations, restrictions on religious activities, restrictions on activities in places or public facilities, restrictions on socio-cultural activities, transportation , and other activity restrictions.
People also currently spend a lot of time at home.
For some people, spending time at home is a fun activity because the home is a place where we feel safe but for some people it is not.
The existence of abuse’.
Global News.
Retrieved on 7th April, 2020 <https://globalnews.ca/news/ 6723582/coronavirus-domestic-abuse/> Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 243 domestic violence problems makes some people dislike spending time at home, but now they have to stay at home.
According to UN Secretary General Antonio Guteres19 that there is concern over an increase in domestic violence in several countries where this is because many people are trapped in homes with abusive partners.
As said by the UN Secretary General Antonio Guteres, several countries that reportedly have increased rates of domestic violence include Australia, China, Spain and Indonesia.
In China, it was recorded that 300 couples filed for divorce since February 24, 2020, where since the lockdown was implemented, this divorce was due to frequent quarrels that could lead to domestic violence.
Then in Spain, there were 18 percent more complaints in the first two weeks of the lockdown.
During the COVID19 pandemic in Australia, there was an increase of one-third of cases from 40 percent of clients who were victims of domestic violence.
There are factors that cause domestic violence during the COVID-19 pandemic such as social, economic factors, etc.
Economic factors are the main cause during the COVID-19 pandemic because economic activity has also decreased or even stopped.
There have been many layoffs (PHK) so that the economies of the families who are laid off experience no income to finance their daily lives.
From these problems, it can trigger pressure and cause excessive emotions in the breadwinner which can lead to physical 19 News Wires, above n 15 20 DW, ‘Di Masa Pandemi Corona Perempuan Indonesia Lebih Rentan Alami KDRT’.
Tempo.co.
Retrieved on April 16, 2020 <https://www.tempo.co/dw/2347/di-masapandemi-corona-perempuan-indonesia-lebihrentan-alami-kdrt> 21 Van Gelder, et al above n.1 22 Campbell, above n.7 23 Kennedy, S., ‘Jobs destroyed worldwide as coronavirus triggers deep recession.
The Japan violence.
According to Tuani Sondang Rejeki Marpaun's statement20, a member of the Legal Aid Institute for the Indonesian Women's Association for Justice (LBH Apik), from March 16 to April 12 there were 75 case complaints and the number of domestic violence in March increased when compared to two months ago, January and February.
Domestic violence cases are in the second rank based on the complaints of these cases.
Isolation coupled with the psychological and economic stress that accompanies a pandemic as well as the potential for increased negative coping mechanisms (eg excessive alcohol consumption) can coincide in a storm that is perfect for igniting an unprecedented wave of family violence.21 In Australia, when social distancing measures were put in place, sales of alcoholic goods were up by more than 36%22, and as restaurants, bars and pubs have closed, people are now drinking more within the confines of their homes.
Unemployment rates worldwide are rapidly increasing to double digits, with millions registering for welfare payments and a worldwide recession expected in the near future.23 Substance abuse, financial hardship, and isolation are well-known risk factors for domestic abuse.24 During isolation, there are also fewer opportunities for people living with family violence to ask for help.
Isolation also helps keep abuse hidden with physical or Times.
Retrieved on 10th April, 2020 from: <https://www.japantimes.co.jp/news/2020/04/06/ business/economy-business/jobs-destroyedworldwide-coronavirus-recession/> 24 McCulloch, Jude; Maher, JaneMaree; FitzGibbon, Kate; Segrave, Marie; Roffee, James (2018): Review of the Family Violence Risk Assessment and Risk Management Framework (CRAF): Final Report.
Monash University.
Report.
https://doi.org/10.26180/5bab197f3fb56 https://www.tempo.co/dw/2347/di-masa-pandemi-corona-perempuan-indonesia-lebih-rentan-alami-kdrt https://www.tempo.co/dw/2347/di-masa-pandemi-corona-perempuan-indonesia-lebih-rentan-alami-kdrt https://www.tempo.co/dw/2347/di-masa-pandemi-corona-perempuan-indonesia-lebih-rentan-alami-kdrt Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 244 | Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… emotional signs of family violence and abuse that no one else can see.25 Reports suggest that COVID-19 is used as a coercive control mechanism whereby offenders exercise further control in abusive relationships, particularly in the use of detention, fear and the threat of transmission as mechanisms of abuse.
In Australia, charities providing support to people experiencing domestic violence have highlighted concerns specifically related to reports of people whose close partners have used COVID-19 as a form of abuse.
There have been reports of misinformation being used by intimate partners regarding the extent of quarantine measures26 and other forms of abuse related to COVID-19.27 Furthermore, there are reports that those who experience domestic violence may be afraid of going to hospital for fear of contracting COVID-19.28 Apart from being isolated, the economic conditions in the family during this pandemic are also the cause of the increase in domestic violence.
The existence of the COVID-19 pandemic has made several employees in Indonesia threatened from dismissal of work rights (PHK) because of the large number of jobs that do not allow them to be done at home, such as in production activities.
In addition, layoffs were also carried out due to a lack of purchases from consumers and restrictions on exports to certain countries which resulted in reduced company income followed by losses.
Layoffs make Indonesian people who 25 Stark, E. (2012).
“Looking beyond domestic violence: Policing coercive control.” Journal of Police Crisis Negotiations, 12(2), 199-217.
26 Gearin, M. & Knight, B., ‘Family violence perpetrators using COVID-19 as a form of abuse we have not experienced before’.
ABC News Australia.
Retrieved on 7th April, 2020 <https://www.abc.net.au/news/2020-03work and experience layoffs will experience shortages in the level of the household economy.
This will trigger stress and emotions because you think about the cost of daily living.
Male breadwinners can take their stress and emotions and frustration out on women and their children in the form of violence.
Hence, the increased stress that occurs among parents leads to physical abuse and neglect of their children.
With this situation, parents also feel pressured when dealing with children's behaviour at home and demand that they do tasks rudely or aggressively.
With the explanation above, it can be concluded that the impact of the COVID-19 pandemic disrupts the welfare of the family where the family should provide and fulfil all needs.
As stated by BKKBN (2002), family welfare is a dynamic condition in which all needs are met: material physical, mental, spiritual and social, which allows the family to live naturally in accordance with their environment and allows a child to grow and obtain the necessary protection as an effort to form mental attitude and personality that are steady and mature as quality human resources.
Meanwhile, the current reality that occurs in family life is that social needs are not fulfilled due to social distancing which causes them to not be able to communicate directly with others even though direct communication with others is also a social need.
In addition, several families experienced termination of employment, which reduced their income to fulfil their 29/coronavirus-family-violence-surge-invictoria/12098546> 27 Fielding, S., ‘In quarantine with an abuser: surge in domestic violence reports linked to coronavirus’.
The Guardian.
Retrieved on 8th April, 2020 <ttps://www.theguardian.com/usnews/2020/apr/03/coronavirus-quarantine-abusedomestic-violence> 28 Ibid https://www.abc.net.au/news/2020-03-29/coronavirus-family-violence-surge-in-victoria/12098546 https://www.abc.net.au/news/2020-03-29/coronavirus-family-violence-surge-in-victoria/12098546 https://www.abc.net.au/news/2020-03-29/coronavirus-family-violence-surge-in-victoria/12098546 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 245 needs and wants both materially and nonmaterially.
Then the physical / physical needs are also difficult to fulfil in the family with the current situation because recreation areas are not operational due to the COVID-19 pandemic that has not subsided.
If seen from the cases of domestic violence during this pandemic, the impact is that the welfare of the family is disturbed because they cannot meet their physical, mental, spiritual and social needs during the COVID-19 pandemic.
Developing Anti Domestic Violence Policy During COVID-19 Pandemic The observed increase in domestic violence may partly stem from existing social and systemic problems that can be exacerbated by disaster-related stress and tension, economic downturn, displacement, and uncertainty (Parkinson, 2013).
The current pandemic shares several major similarities with previous disasters.
However, it also presents a unique and sad paradox for victims.
If they decide or are forced by their partner to stay at home, they risk enduring or increasing violence.
If they can leave, they run the risk of being exposed to a dangerous virus that is highly contagious.
Coercive control is a hallmark of abusive relationships29, and already, reports have shown disturbing accounts of offenders taking advantage of COVID-19 to instil fear and obedience in their partners.30 Some medical professionals are concerned that this 29 Stark, above n. 25 30 Godin, M., ‘How coronavirus is affecting victims of domestic violence’.
Time.
Retrieved (2020, March 18) from <https://time.com/5803887/coronavirusdomestic-violence-victims/> 31 Loc.
Cit 32 Campbell, J. C., Glass, N., Sharps, P. W., Laughon, K., & Bloom, ‘T.
Intimate partner homicide: Review and implications of research type of coercion may also result in fewer victims seeking medical care for domestic violence-related injuries or vice versa, one of the most vital avenues for screening and detect abuse.31 Domestic violence is a largely “hidden” epidemic and never more so than the current state of isolation required and mandated.
Although much uncertainty lies ahead, it is clear that the impact of the COVID-19 pandemic will weigh heavily on those facing unprecedented circumstances in isolation indefinitely in unsafe homes.
For those who are disproportionately affected by domestic violence, it may be particularly detrimental.
It is important to note that often the most dangerous and potentially deadly time for the victim or survivor of an abusive relationship is immediately after leaving the relationship.32 During this time they are at highest risk for serious bodily injury, mental breakdown, and homicide, which adding an additional level of complexity to the already difficult decision to leave the abuser.
Coincidentally, some shelters, which are usually affected and under-resourced, are close to or in their capacity when they apply social distancing guidelines to ensure a safe and socially distant communal environment.33 Additionally, many shelters only have the capacity to accommodate women (and often, their children) for short periods, increasing their risk of returning to abusive partners when alternatives such as hotel and policy’ (2007) 8(3) Trauma, Violence & Abuse, 8, http://dx.doi.org/ 10.1177/1524838007303505 33 Kofman, Y.
B., & Garfin, D. R., ‘Home Is Not Always a Haven: The Domestic Violence Crisis Amid the COVID-19 Pandemic’, (2020) Psychological Trauma: Theory, Research, Practice, and Policy.
Advance online publication.
<http://dx.doi.org/10.1037/tra0000866> Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 246 | Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… vouchers are not available.
Across the country, doctors, researchers, advocates, policymakers and government agencies are working tirelessly to mitigate the current devastating effects.
With the threat of the second wave of COVID-19, it is imperative that there is a collective effort to ensure that as much DV protection as possible continues to be integrated into the response and recovery of the COVID-19 disaster.
As mentioned, DV spikes often occur long after a disaster strikes.34 Therefore, appropriate funds and resources should be allocated to victims and survivors, as well as front lines in a domestic violence crisis such as service centers, shelters and institutions.
Equally important is reducing the psychological sequelae of experiencing domestic violence during the collective trauma that develops.
Post-traumatic stress disorder is the most common mental health disorder associated with traumatic events and disasters35 and domestic violence.36 In combination, these events can serve as additional triggers, because traumatic stress is often associated with mental health comorbidities37 and other negative health outcomes such as pain and gastrointestinal tracts and respiratory problems.38 The increase in cases of domestic violence during the Covid pandemic is quite 34 Sety, M., James, K., & Breckenridge, J.
Understanding the risk of domestic violence during and post natural disasters: (2014) 5 Literature review.
In L. W. Roeder (Ed.
), Issues of gender and sexual orientation in humanitarian emergencies <http://dx.doi.org/10.1007/978-3319-05882-5> 99-111 35 Galea S, Nandi A, Vlahov D. ‘The epidemiology of post-traumatic stress disorder after disasters’, (2005) Epidemiol Rev, <doi: 10.1093/epirev/mxi003> 36 Dutton, M. A., Green, B. L., Kaltman, S. I., Roesch, D. M., Zeffiro, T. A., & Krause, E. D. ‘Intimate partner violence, PTSD, and adverse health outcomes’ (2006) 21.
Journal of Interpersonal Violence, <http:// dx.doi.org/10.1177/0886260506289178> alarming because on the one hand the victim must still get help, on the other hand, the officer who handles the dilemma and must make careful anticipations so as not to catch the virus, that's why several protocols for handling cases of violence are needed.
It is hoped that women can become a joint protocol in handling violence against women so that women who become victims are still served by their cases and service provider institutions can still provide case handling by referring to the existing protocol (Ministry of Women's Empowerment and Child Protection, United Nations Population Fund (UNFPA).
The available protocols include: 1.
Protocol for complaints of cases of violence against women during the COVID-19 2.
Protocol for providing assistance services for violence against women during the COVID-19 3.
Referral protocol to health services for violence against women during the COVID-19 4.
Protocol for referral to safe houses or shelters for violence against women during the COVID-19 5.
Protocol for psychosocial services for violence against women during the COVID-19 pandemic 37 eg, depression, anxiety; Brady, K. T., Killeen, T. K., Brewerton, T., & Lucerini, S. ‘Comorbidity of psychiatric disorders and posttraumatic stress disorder’, (2000), Journal of Clinical Psychiatry, 61(Suppl.
7) 38 Garfin, D. R., Thompson, R., & Holman, E. A., ‘Acute stress and subsequent health outcomes: A systematic review’, (2018) 112 Journal of Psychosomatic Research, <http://dx.doi.org/10.1016/j.jpsychores .2018.05.017>; Pacella, M. L., Hruska, B., & Delahanty, D. L., ‘The physical health consequences of PTSD and PTSD symptoms: A meta-analytic review’ (2013) 27 Journal of Anxiety Disorders,.
<http://dx.doi.org/10.1016/j .janxdis.2012.08.004> http://dx.doi.org/10.1016/j.jpsychores%20.2018.05.017 http://dx.doi.org/10.1016/j.jpsychores%20.2018.05.017 http://dx.doi.org/10.1016/j%20.janxdis.2012.08.004 http://dx.doi.org/10.1016/j%20.janxdis.2012.08.004 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 247 6.
Protocol Legal counselling services for violence against women during the COVID-19 7.
Protocol for legal process assistance for violence against women during the COVID-19 8.
Protocol for rescue of violence against women during the COVID-19.
With these protocols it is expected to be able to Guidelines that can be replicated by service agencies in each region by adjusting the content and coverage to the local context, regional policies, and local resources in order to provide comprehensive services by prioritizing the safety of service agency officers and reporters.
In general, the purpose of this protocol is to provide a Protocol for Handling Cases of Violence against Women who are victims in accordance with the handling procedures during the COVID-19 pandemic.
The negative impact of the steps taken by Indonesia and other countries to tackle the spread of the 2019 coronavirus disease (COVID-19) on the community has begun to be revealed.
An area of concern is the impending crisis of domestic violencegender-based violence and child abuse and neglect, due to movement restrictions, loss of income, isolation, overcrowding, and stress and anxiety, all of which place women and children at risk of a disproportionate increase in risk danger.
This increased risk is not surprising.
Previous epidemics, such as the Ebola virus disease outbreak in West Africa, 2 but also the cholera and Zika virus disease outbreaks, led to a regional environment in which domestic violence became more common; there is a reduction in funding for gender based violence specialist public health services; and, for survivors of genderbased violence, access to health services is reduced.
Although we are not aware of any published studies to date tracking national trends in gender-based violence related to COVID-19, early reports from Indonesian support services such as the National Commission on Violence Against Women (Komnas Perempuan) helpline have shown an increase in service use, a pattern seen elsewhere (with important examples in China, Spain and France).
The above discussion clearly demands gender-based policies to address their vulnerabilities and protect them economically, psychologically and physically during and after a pandemic.
Because women's vulnerability to health, domestic violence and livelihood issues are often overlooked, it is important to understand that the impact of the pandemic on women in relation to their well-being is often more severe and long-term.
To tackle domestic violence, the government must make policies that initiate helplines for women and children.
Emergency protection for marginalized communities is also important.
However, gender gaps still exist, so there is a need to address women's mental and legal problems in the current crisis.
Therefore, the government must map an action plan to counter the short and long term effects of the coronavirus on women while paying attention to their health, livelihoods and domestic violence.
To this end, largescale consultations with women's organizations especially with government, civil society and women's rights bodies need to be initiated.
Women's representatives in parliament must be involved in the decisionmaking process to shape public policies and ensure that these policies are gender equitable.
Innovative crisis counselling support services should be provided to women while social isolation and distance Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 248 | Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… are being practiced.
This can be done by leveraging technology in smartphones and the internet as an opportunity to better support mental health through apps that offer free mental health counselling.
Create a blog or vlog (video blog) that encourages contacting a counsellor to talk about daily stress and how it can be reduced.
National databases should be prepared immediately to register cases of violence against women reported under lockdown.
There is a need to improve existing health services to the extent possible targeted specifically at women beneficiaries for example by allocating a larger budget in the health sector.
By having different research and development cells in the ministry of health working on pandemic preparedness and prevention even under normal circumstances.
Increase doctor-nurse rations.
Invest in paramedic care and build capacity through training female health workers to reduce shocks caused by the pandemic.
Using gender lens as a foundation of policy and helping organizations at the grassroots to examine what is working; what are the delivery dynamics; the impact of women's inclusion; Dynamics of collaboration between government and civil society organizations The efficacy of civil sector organizations must be increased by giving them the reach and space to work at this level.
A strong local government system is an urgent need to plan and deal with local problems and priorities at their doorstep.
Health services for all, including family planning and reproductive health facilities.
A fool-proof mechanism must be in place to evaluate gender justice programs run by the government and to assess whether women's needs are being addressed through policy action.
Provincial and district government systems in addition to the COVID-19 response team should be used to provide safety training to women, especially medical staff, who are at the forefront of dealing with coronavirus patients.
All policy-related materials must be disseminated among women and create awareness at all levels.
Domestic workers need to be documented and the informal sector must be entered into a formal database.
SOPs should be formulated on how respectfully the government can distribute money among women and take their dignity into account to ensure universal distribution of cash transfers or income as smoothly as possible.
Additional debate is needed on the universalization of income support for all citizens who need it and must be able to get it.
In Indonesia prior to the corona virus crisis, gender-based violence was already considered very common, linked to substantial negative downstream social, psychological and physical outcomes.
Therefore, any resulting increase in rates of domestic violence will not only be a further parody of human rights but also be associated with further long-term costs to society, which may not be remedied beyond the immediate threat of COVID-19.
Currently Indonesia has legislation on penalizing marital violence through the Law No.
23/2004 on the Eradication of Marital Violence.
The Anti Marital Violence Act is closely related to several other prevailing laws and regulations, among others, Law Number 1 of 1946 concerning the Criminal Code and its Amendments, Law Number 8 of 1981 concerning the Criminal Procedure Code, Law Number 1 of 1974 concerning Marriage, Law Number 7 of 1984 concerning the Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, and Law Number 39 of Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 249 1999 concerning Human Rights Human.
The birth of the Anti-Marital Violence Act is a milestone for legal protection efforts against victims of violence that occur within the scope of the household.
Household, also specifically regulates violence that occurs in the household with elements of a crime that is different from the criminal act of maltreatment regulated in the Criminal Code.
The Anti Marital Violence Act regulates forms of domestic violence, including physical violence, psychological violence, sexual violence, and household neglect.
In addition, it also regulates the obligations for law enforcement officers, health workers, social workers, companion volunteers, or spiritual mentors to protect victims so that they are more sensitive and responsive to household interests, which from the outset are directed at household integrity and harmony, Law Number 23 of 2004 concerning the Elimination of Domestic Violence (Anti Marital Violence Act) is a legal umbrella for the community and law enforcers such as the Police, Prosecutors / Prosecutors of the Republic of Indonesia and Lawyers, especially Judges in handling and resolving cases of domestic violence.
For this reason, law enforcers need to be equipped with knowledge, insight, skills, mental attitudes and professional ethics in accordance with the prevailing order in handling and resolving cases of domestic violence.
However, in the circumstance of pandemic, the implementation of Anti Marital Violence Act should be in accordance to the approach of public health that is gender-conscious.
It has never been more important than now to adopt a public health approach to gender based violence in Indonesia.
The principles of a public health approach should be applied to support survivors of gender based violence.
The WHO public health approach consists of four steps, which we recommend adapting to help prevent domestic violence during this pandemic.
Without adequate supervision, it is impossible to capture the burden of domestic violence during this pandemic.
Because of selection bias, administrative data sets consistently underestimate the level of domestic violence.
Potential approaches to increasing domestic violence surveillance could include routine investigations (appropriately integrated into remote primary care consultations or active syndromic surveillance of local health protection teams) and urgent implementation of linked data sets between police and health records data sets for identify individuals at risk.
Increasing supervision will also provide opportunities to offer targeted support and interventions.
Although formal evaluations of current interventions have not been carried out during the pandemic, national charities (such as, but not limited to, Women's Aid, Safelives, and the National Society for the Prevention of Cruelty to Children) have produced guidance on how survivors can both report violence, abuse, and neglect and keeping themselves safe, including information on remote reporting and support mechanisms.
There are substantial gaps in the literature relating to monitoring and evaluating effective interventions to support those at risk of experiencing domestic violence, child abuse and neglect during this pandemic.
The medical profession has a duty to provide support in addressing these problems providing a public health approach to support the most vulnerable in society.
The negative impact of the steps taken by Indonesia and other countries to tackle the spread of the 2019 coronavirus disease Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 250 | Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… (COVID-19) on the community has begun to be revealed.
An area of concern is the impending crisis of domestic violence gender-based violence and child abuse and neglect, due to movement, decreased income, isolation, overcrowding and stress, all of which place women and children at increased risk of disproportionate and discriminating treatments.
This increased risk is not surprising.
Epidemics can lead to regional environments in which domestic violence is becoming more common; there is a funding service for gender based violence specialist public health services; and, for survivors of gender-based violence, access to health services is reduced.
Although we have not seen any published studies to date that monitor national trends in gender-based violence related to COVID-19, early reports from Indonesian support services such as the National Commission on Violence Against Women helpline have shown an increase in service use, patterns seen elsewhere (with important examples in China, Spain and France).
In Indonesia prior to the Coronavirus Crisis, gender-based violence was very common, related to substantial negative downstream social, psychological and physical outcomes.
The principles of a public health approach should be applied to support survivors of gender based violence.
The WHO's public health approach consists of four steps, which we are seeing for the first time to help prevent domestic violence during this pandemic (appendix).
Without adequate supervision, it is impossible to capture the burden of domestic violence during this pandemic.
Because of selection bias, administrative data sets consistently underestimate the level of domestic violence.
The potential for monitoring domestic violence surveillance could check for routine investigations (feasible to be integrated into remote care consultation approaches or active syndromic surveillance of local health protection teams) and the proximity of the linked data set between police and health records data sets for identification of individuals at risk.
Increasing supervision will also provide opportunities to offer targeted support and interventions.
Although formal evaluations of current interventions have not been carried out during the pandemic, non-governmental organizations and community organizations have produced guidance on how survivors can report violence, abuse and neglect and keep themselves safe, including information on remote reporting and support.
There is substantial in the literature with regard to evaluations and evaluations that are effective in supporting those at risk of experiencing domestic violence, child abuse and neglect during this pandemic.
The medical profession has a duty to provide support in addressing these problems providing a public health approach to support the least vulnerable in society.
IV.
CONCLUSION AND SUGGESTION The presence of the COVID-19 pandemic is very influential in carrying out daily activities.
Besides that, it also has many impacts on society, starting from health, economic and social impacts.
This impact also affects the emergence of problems, one of which occurred during the COVID-19 pandemic, which is the problem of Domestic Violence, where during the COVID-19 pandemic there has been an increase in the number of Domestic Violence.
The causes of domestic violence include independent home quarantine which traps victims of domestic violence with perpetrators of domestic Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Purwanti, Setiawan Developing Anti Domestic Violence Policy During Covid-19 Pandemic… | 251 violence.
In addition, it also triggers stress because with this pandemic the family economy is reduced which in turn can trigger family disputes that lead to violence.
An increase in the number of domestic violence is not only the duty or responsibility of the government but all levels of society.
The efforts in overcoming domestic violence during this pandemic which can be directly reported to the task in charge.
In addition, the institution that oversees this problem must also be fast and responsive in processing reports on domestic violence and helping to solve problems.
In Indonesia, the only legislation that effectively focuses on violence against women currently is the Law No.
23/2004 on the Eradication of Marital Violence (Anti Marital Violence Act).
Despite the penal scope is limited to violence within family, the Act is legitimate enough to effectively persecute perpetrators of domestic violence.
However, this legislation is lacking in terms of restoration and reparation of the victim (i.e.
physical and mental damage, access to justice, healthcare, child care and job).
This problem is now exacerbated even worse during the pandemic.
Therefore, any resulting increase in rates of domestic violence would not only be a further parody of human rights but also a surveillance at a further long-term cost to society, which may not be able to address the immediate threat of COVID-19.
It has never been more important than now to adopt a public health approach to gender based violence in Indonesia.
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Microsoft Word REVISED BLJ 2016 CONTENT 5 juni.docx Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 1 CAPITAL PUNISHMENT IN THE PERPECTIVE OF NON DEROGABLE RIGHTS Setiawan Noerdajasakti Fakultas Hukum Universitas Brawijaya Jl.
Mayjen Harjono 169 Malang Email : Setiawan.Sakti@ub.ac.id Telepon 08123310381 Abstract Capital punishment is still exist as one of kind punishments in Indonesia.
The existence of capital punishment is based on the Penal Code and other laws.
On the other hand, however, according to Constitution 1945, MPR Decree Number XVII/MPR/1988 on Human Rights and Law Number 39 / 1999 on Human Rights, the right to live cannot be limited under any circumstances (non derogable).
Capital punishment and the right to live as the right that cannot be limited under any circumstances (non derogable) are contradictive.
This contradiction results a conflict of norm between legislations that legalize the existence of capital punishment and legislations that legalize the existence of the right to live.
Solutions should be resulted to solve the conflict of norms.
Keywords: human rights, non derogable rights, capital punishment, right to live, conflict of norms.
I.
INTRODUCTION : In 1998, a political movement happened in Indonesia.
Most of Indonesian people, especially university students and politicians forced President Soeharto to resign from his posisition as the president of The Republic of Indonesia.
Besides, the people also forced the government to start reformation in many aspects, especially in the aspect of politics and democracy.
During the political movement, political and economic conditions in Indonesia becomes worse and uncotrolable.
It is very difficult for the government to control the social condition.
Considering that it is not posible to defence his position, finally in May 1998 the president resigned.
He resigned after governing Indonesia for more than thirty years.
Since the time of the resignation of Soeharto, the political and economic conditions becomes better and controlable.
Democracy also grew well.
Indonesia started the new era, that is Reformation Era.
Reformation in Indonesia results many kind of changes, including change in the aspect of human Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 2 rights protection.
Being compared with the former era that did not give enough attention to the aspect of human rights protection, Reformation Era gives better attention to the human rights aspect.
Several kind of legislations that regulate human rights are resulted during the Reformation Era.
Substances of these legislations focus on the aspect of human rights protections.
First human rights legislation was produced by MPR RI 1 (People Representative Assembly of The Republic of Indonesia).
That is MPR Decree Number XVII/MPR/1988 on Human Rights.
The decree was legislated by MPR at the time when the MPR hold general assembly on November 1998.
Substances of the decree that consist of Human Rights Charter and human rights articles give protection on many aspects of human rights.
The next human rights legislation raised in the following year.
In 1999, DPR RI 2 (Indonesian Parlement) and Indonesian government legislated Law number 39 / 1999 on Human rights.
The law consists of more than 100 articles.
Similar to the MPR decree, contents of 1 Majelis Permusyawaratan Rakyat Republik Indonesia.
2 Dewan Perwakilan Rakyat Republik Indonesia.
the Law on Human Rights also give protection on many aspects of human rights.
Amending the content of Constitution 1945 is one of the Indonesian people need to continue the reformation.
Since the beginning of Reformation Era the amendment of Constitution 1945 has been conducted four times.
Firstly, the amendment was conducted in 1999.
Then the second amendment was conducted in 2000.
In 2001 the amendment of Constitution 1945 was conducted for the third time.
Finally the last amendment happened in 2002.
The amendments were carried out when MPR RI hold yearly general assembles.3 In 2000, when MPR RI conducted the second amendment, special chapter that regulates human rights was included to the constitution.
Number of the chapter is Chapter XA and title of the chapter is Human Rights.
The chapter consists of 10 articles.
Each of the articles are devided into several sub articles.
Like the MPR Decree and Law on Human Rights, this chapter also regulates many aspects of human rights.
That is why since the second 3 Moch.
Mahfud MD, Membangun Politik Hukum Penegakan Konstitusi, (Jakarta : LP3ES, 2006), hlm.
145.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 3 amendment, Constitution 1945 is called as Human Rights Constitution that means constitution that gives constitutional protections to the human rights.4 Since the second amendment of Constitution 1945, it can be concluded that there are three kinds legislations that regulate human rights.
That are Constitution 1945, MPR Decree Number XVII/MPR/1988 on Human Rights and Law Number 39 / 1999 on Human Rights.
According to the hierarchy of legislations, position of these three legislations are on the different levels.
5 The position of Constitution 1945 is in the first level, the position of MPR Decree Number XVII/MPR/1988 on Human Rights is in the second level and the position of Law Number 39 / 1999 on Human Rights is in the third level.
The existence of three kinds of legislations that regulate human rights has the meaning that according to the legal aspect, the human rights have the important role.
Moreover, according to the hierarchy, 4 Tinton Slamet Kurnia, Konstitusi HAM, Undang-Undang Dasar Negara Pepublik Indonesia Tahun 1945 & Mahkamah Konstitusi Republik Indonesia, (Jogyakarta : Pustaka Pelajar, 2014), hlm.1.
5 Law Number 12 / 2011 on Legislations Formulation, Article 7 Sub Article (1) .
position of these three regulations are in the different levels.
Either Constitution 1945, MPR Decree Number XVII/MPR/1988 on Human Rights or Law Number 39 / 1999 on Human Rights regulate many kind aspect of human rights.
Human rights that cannot be limited under any circumstances are also mentioned in those three regulations.
Articles that regulate human rights that cannot be limited under any circumstances are Article 28i Sub Article (1) of Constitution 1945, Article 37 of MPR Decree Number XVII/MPR/1988 on Human Rights and Article 4 of Law Number 39 / 1999 on Human Rights.
Those three articles mention human rights that cannot be limited under any circumstances with the same formulation.
That is “The right to live, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under law with retrospective effect are all human rights that cannot be limited under any circumstances (non derogable)”.
Actually, there is a special terminology to express human rights that cannot be limited under any Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 4 circumstances.
That is non derogable rights.6 Based on the formulation of the article above, it can be concluded that there are seven kinds of rights that cannot be limited under any circumstances (non derogable).
Those are: 1.
The right to live ; 2.
Freedom from torture ; 3.
Freedom of thought and conscience ; 4.
Freedom of religion ; 5.
Freedom from enslavement ; 6.
Recognition as a person before the law ; 7.
The right not to be tried under law with retrospective effect.
The right to live is one of seven kind of rights that cannot be limited under any circumstances (non derogable).
Among kind of the rights that cannot be limited under any circumstances (non derogable), either in Constitution 1945, MPR Decree Number XVII/MPR/1988 on Human Rights or in Law Number 39 / 1999 on Human Rights, position of the right to live is always written in the first position.
It means that among other 6 Rizky Ariestandi Irmansyah, Hukum Hak Asasi Manusia dan Demokrasi, (jogyakarta : Graha Ilmu, 2013), hlm.
66. rights that cannot be limited under any circumstances (non derogable), the right to live is the most important one.
On the other hand, capital punishment is still exist in Indonesia.
There are several regulations that regulate the existence of capital punishment.
KUHP 7 (Indonesian Penal Code) is the main law that regulates the existence of capital punishment.
Besides, several other kinds of laws also legalize the capital punishment.
Article 10 of the Penal Code mentions kind of punishments.
This article is the main yuridical base of the capital punishment.
The article mentions: The punishment are : a.
Basic punishment : 1.
Capital punishment ; 2.
Imprisonment ; 3.
Light imprisonment ; 4.
Fine.
b.
Additional punishment : 1.
Deprivation of certain rights ; 2.
Forfeiture of specific property ; 3.
Publication of juridical verdict.
7 Kitab Undang-Undang Hukum Pidana.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 5 According to Article 10 of the Penal Code, capital punishment is one of kind punishments.
Among kind of the punishments, position of capital punishment is written in the first position.
It means that among other punishments, capital punishment is the hardest one.8 Indonesian Penal Code is devided into three books.
Book One consists of regulations that regulate General Provisions, such as legal principles, kind of punishments and others.
Book Two consists of articles that indicate kind of criminal acts that are classified as crime.
Then, book three consists of articles that indicate kind of criminal acts that are classified as misdemeanous.
Each of the articles are threatened by penalties.
Kind of penalties refere to Article 10 of the Penal Code.
Based on the book two of the Penal Code, kind of acts that are classified as criminal acts are varied.
Kind of punishments that are threatened in those criminal acts are also varied.
There are several criminal acts that are threatened by capital punishment.
Those are murder, president and vice president murder, skyhijacking, et cetera.
Not 8 Read Article 69 Sub Article (1) of The Penal Code.
only the Penal Code, but capital penalty also threatened by other kind of laws.
The laws are such as Law on Narcotics, Law on Psichotropics, Law on Terrorism, Law on Human Rights Court, Law on Corruption, Law on Child Protection and Law on Economic Crime.
Either capital punishment or right to live as the right that cannot be limited under any circumstances (non derogable) have their own juridical bases.
Each of the juridical base is still exist.
The existence of capital punishment is based on the Penal Code and some other laws.
The existence of the right to live as the right that cannot be limited under any circumstances (non derogable), on the other hand, is based on Constitution 1945, MPR Decree Number XVII/MPR/1988 on Human Rights and Law Number 39 / 1999 on Human Rights.
Actually, capital punishment and the right to live as the right that cannot be limited under any circumstances (non derogable) are contradictive.
This contradiction results a conflict of norm between legislations that legalize the existence of capital punishment and legislations that legalize the existence of the right to live.
The conflict of norm results an Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 6 implication to the aspect of legal certainty.
Solutions should be resulted to solve the conflict of norms.
II.
METHODOLOGY This paper uses juridicalnormative method, including reviewing and analysing the rules of capital punishment in Indonesia.
Relevant laws and policy is analysed.
The approach used in this paper is statute approach.
Historical development on how Penal Code was formulated will also be considered.
It also look at other criminal laws, such as Laws on Narcotics, Law on Corruption, Law on Psichotropic, Law on Terrorism, Human Rights Law, Law on Child Protection and Law on economic Crime.
It tries to find whether there was a conflict of norm in formulating capital punishment for specific criminal action.
III.
RESULT AND DISCUSSION YUDICIAL REVIEW ON CAPITAL PUNISHMENT Several years after MPR RI did the second amendment and legalized the right to live as the right that cannot be limited under any circumstances (non derogable) to the Constitution 1945, there were five narcotic criminals got punishment by the judge.
The judge punished them by capital punishment.
Two of them are Indonesian citizens, and three others are Australian citizens.
The name of two Indonesian citizens are Edith Yunita Sianturi and Rani andriani (Melisa Aprilia).
Then, the name of three Australian citizens are Myuran Sukumaran, Andrew Chan and Scott Anthony Rush.
These five narcotic criminals thought that the narcotic law which legalize the existence of capital punishment is contradictive with the legislations which legalize the existence of the right to live as the right that cannot be limited under any circumstances (non derogable).
Whereas, based on the hierarchy of legislations, the level position of Narcotic law is lower than the position of Constituton 1945.
Based on this opinion, these five narcotic criminals proposed yudicial review on some articles in Narcotic Law to the Constitutional Court.
The articles in this case are articles that the judge used as the juridical basic to punish them by capital penalty.
Considering that constitutional rights are only served for Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 7 Indonesian citizens 9 , Constitutional Judges in the Constitutional Court refused to examine the yudicial review on some articles in Narcotic Law that was proposed by the three Australian citizens.
The Constitutional Judges in Constitutional Court only examined the yudicial review on some articles in Narcotic Law that was proposed by the two Indonesian citizens.
After examining the case, the constitutional judges refused the yudicial review that the two Indonesian citizen proposed.
According to the constitutional judges the narcotic law which legalize the existence of capital punishment is not contradictive with the legislations which legalize the existence of the right to live as the right that cannot be limited under any circumstances (non derogable).
In the opinion of the constitutional judges, the existence of Indonesian human rights are not absolutely unlimited.
The existence of the Indonesian human rights are limited in certain aspects.
So, the existence of the right to live as the right that cannot be limited under any circumstances (non derogable) is also limited.
9 Read Article 51 Sub Article (1) Law on Constitutional Court.
Constitutional judges consists of nine persons.
In spite of the majority of constitutional judges refused the yudicial review that the two Indonesian citizen proposed, however, not all of them agree with the verdict.
Two of them have their own opinion that is quite different from the opinion of the seven others.
In the opinion of these two constitutional judges the existence of the right to live as the right that cannot be limited under any circumstances (non derogable) is unlimited.
The different opinion of these two constitutional judges is explicitelly written in the verdict as the dissenting opinion.
Yudicial review that the two narcotic criminals proposed in this case is yudicial review on some articles that legalize the existence of capital punishment in Narcotic Law.
It is actually, however, there are some other laws that also legalize the existence of capital punishment, such as Penal Code, Law on Psichotropics, Law on Terrorism, Law on Human Rights Court, Law on Corruption, Law on Child Protection and Law on Economic Crime.
The existence of capital punishments that are threatened in some articles of those laws are also contradictive with legislations which Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 8 legalize the existence of the right to live as the right that cannot be limited under any circumstances (non derogable).
Based on this condition, it might be possible in future, some other yudicial reviews on those articles in laws will be proposed by some other criminals who got capital punishment by the judge.
It might also be possible in future the constitutional judges make another verdict that is quite different from the former verdict.
HUMAN RIGHTS AND THE RESTRICTIONS Article 1 Sub Article (3) Constitution 1945 mentions that “The state of Indonesia shall be a state based on the rule of law”.
According to Emanuel Kant and Yulius Stahl, rule of law consists of several components.
One of the components of rule of law is guaranteeing the existence of legal protection.10 The existence of regulation of human rights protection in Chapter XA of Constitution 1945 shows the consistency of Article 1 Sub Article (3) Constitution 1945.
10 Moh.
Hatta, Beberapa Masalah Penegakan Hukum Pidana Umum Dan Pidana Khusus, (Jogyakarta : Liberty, 2009), hlm.
8.
Definition of human rights is not mentioned in any articles of Chapter XA of Constitution 1945.
Definition of human rights are mentioned in MPR Decree Number XVII/MPR/1988 on Human Rights and Law Number 39 / 1999 on Human Rights.
According to the MPR Decree : “Human right is such a fundamental right that stuck on any human being.
It is superior and universal.
It is a gift from God.
It has function to guarantee the continuity of life, freedom and development of human being and society.
It is unable to be ignored, seized and disturbed by anyone”.
According to Article 1 Law Number 39 / 1999 on Human rights : “Human rights are a body of rights that is stuck to the essence and the existence of human being as the creature of Supreme God.
The state, law, government and anyone have to give respect, honour and protection to the human rights”.
In spite of definition of human rights is not mentioned in Constitution 1945, Article 28 j Constitution 1945 regulates restrictions that anyone is unable to ignore in expressing the human rights.
Formulation of the article is as follows : Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 9 (1) Every person shall have the duty to respect the human rights of others in the orderly life of the community, nations and states.
(2) In excercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in democratic society.
Not only Article 28 j Constitution 1945, but Article 36 MPR Decree Number XVII/MPR/1988 on Human Rights and Article 70 Law Number 39 / 1999 on Human Rights also regulates restrictions that every person is unable to ignore in excercising his/her rights.
Formulation of the both articles are the same as the formulation of Article 28 j Sub Article (2) Constitution 1945.
These three articles, either Article 28 j Constitution 1945, Article 36 MPR Decree Number XVII/MPR/1988 on Human Rights or Article 70 Law Number 39 / 1999 on Human Rights show an indication that the existence of Indonesian human rights are restricted.
The restrictions are such as human rights of others, restrictions established by law, morality, religious values, security and public order .
Based on these restrictions, it migh be possible that the constitutional judges have the opinion that Indonesian human rights, including the right to live, are not absolutely limited.
Then they wrote their opinion as the base of their verdict.
NON DEROGGABLE RIGHTS AND THE RESTRICTIONS The words “derogable rights” and the words “non derogable rights” are well-known in literature of human rights.
The word “derogable rights” or “derogable human rights” means the rights that can be decreased by the government in certain condition.
Or in other words “derogable rights” means the rights with restrictions.
On the other hand, the word “non derogable rights” or “non derogable human rights” means the rights that cannot be decreased by the government, in spite of it is in the emergency situation.
Non derogable is a Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 10 specific characteristic of certain human rights that is unable to be restricted.11 In other words Non derogable is a specific characteristic of certain human rights that cannot be limited under any circumstances.
Either Article 28i Sub Article (1) of Constitution 1945, Article 37 of MPR Decree Number XVII/MPR/1988 on Human Rights and Article 4 of Law Number 39 / 1999 on Human Rights mention seven kinds of rights that cannot be limited under any circumstances (non derogable).
Those are the right to live, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law and the right not to be tried under law with retrospective effect.
Constitution 1945 and MPR Decree Number XVII/MPR/1988 on Human Rights do not give detail explaination about the meaning of the words “rights that cannot be limited under any circumstances”.
Further explanation about those words is mentioned in the explanation of Article 4 Law Number 39 / 1999 on Human Rights such as folows : 11 Rizky Ariestandi Irmansyah, loc.cit.
“Meaning of “under any circumstances” includes war situation, arm conflict, or state emergency.
The rights cannot be limited by “anyone”.
The word anyone in this case includes state, government or social members”.
According to the explanation of Article 4 Law Number 39 / 1999 on Human Rights, non derogable rights cannot be limited under any circumstances, eventhough it is under war situation, arm conflict, or state emergency.
Based on this explanation, during normal situation non derogable rights of course cannot be limited under any circumstances, including right to live as one kind of non derogable rights.
Considering that the specific characteristic of non derogable rights that is unable to be restricted, argumentation of constitutional judges that the existence of Indonesian human rights are not absolutely unlimited cannot be implemented to non derogable rights.
It also means that the right to live is also unable to be restricted.
Based on this agumentation, it can be concluded that the existence of capital penalty is contradictive with the Constitution 1945.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 11 CONTRADICTION BETWEEN RIGHT TO LIVE AND CAPITAL PENALTY FROM THE LEGAL CERTAINTY POINT OF VIEW Goal of law consists of three aspects, such as legal certainty, legal equity and legal utility.12 The existence of legislations results legal certainty.
The existence of legislations that legalize the right to live as the right that cannot be limited under any circumstances (non derogable) show legal certainty.
The existence of legislations that legalize the existence of capital punishment also shows legal certainty.
Legal certainty among those contradictive legislations results conflict of norm.
In future, the Indonesian Penal Code that is inherited by the Dutch, will be changed with the new one.
Unfortunately, capital penalty is still explicitely mentioned in some articles of the draft of the Penal Code.
It means that in future conflict of norm between right to live and capital punishment will happen.
The government and the parlement should do something to solve this problem.
12 Marwan Mas, Pengantar Ilmu Hukum, (Jakarta : Ghalia Indonesia, 2004), hlm.
74.
What the government and the parlement should do is related to the criminal law policy or penal policy.
It means efforts to form criminal law legislations especially legislation that related to capital penalty should be prepared and considered as carefull as possible.
It should look at the situation and condition.13 Especially condition of any regulations that are relalted to capital penalty and right to live as one of the right that cannot be limited under any circumstance (non derogable).
LOOKING AT THE RIGHT TO LIVE AND CAPITAL PENALTY FROM INTERNATIONAL INSTRUMENTS Article 3 Universal Declaration of Human Rights mentions that “everyone has the right to live, liberty and security of person”.
This regulation has the meaning that te right to live is guaranteed by the Universal Declaration of Human Rights.
Not only Universal Declaration of Human Rights, another International instrument, that is International Covenant on Civil and Political Rights also gives juridical base on the right to live.
Article 6 Sub 13 Barda Nawawi Arief, Kebijakan Hukum Pidana (Penal Policy), (Semarang : FH UNDIP, 1995), hlm.
6.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 12 Article (1) of International Covenant on Civil and Political Rights mention that “Every human being has the inherent right to live.
This right shall be protected by law.
No one shall be arbitrarily deprived of his life”.
Based on Article 6 Sub Article (1) of International Covenant on Civil and Political Rights, it is clear that right to live shall not be able to be arbitrarily deprived.
This article can also be interpreted that right to live is unable to be limited under any circumstances.
IV.
CONCLUSION Based on Constitution 1945 right to live is the right that cannot be limited under any circumstances (non derogable).
Capital punishment is contradictive with Constitution 1945.
Implication of this contradiction is all regulations that regulate the existence of capital punishment have to be canceled.
The judge is not allowed to punish a criminal with capital penalty.
Considering that the right to live is one of the right that cannot be limited under any circumstances (non derogable), in future, when examine another judicial review on another law that legalizes the existence of capital penalty, Constitution Judges should decide that right to live is contradictive with Constitution 1945.
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LEGISLATION Undang-Undang Dasar Negara Republik Indonesia Tahun 1945, Lembaran Negara Republik Indonesia Tahun II No.
7 Tahun 1946.
Ketetapan Nomor XVII / MPR / 1998 tentang Hak Asasi Manusia.
Undang-Undang Nomor 1 tahun 1946 tentang Peraturan Hukum Pidana, Staatsblad 1915, Nomor 732 (disebut Kitab UndangUndang Hukum Pidana / KUHP).
Undang-Undang (Darurat) Nomor 12 Tahun 1951 tentang Senjata Api dan Bahan Peledak, Lembaran Negara tahun 1951 Nomor 78, Tambahan Lembaran Negara Nomor 81.
Undang-Undang Nomor 7 (drt) tahun 1955 tentang Tindak Pidana Ekonomi, Lembaran Negara tahun 1955 Nomer 27, Tambahan Lembaran Negara Nomor 801.
Pemerintah Pengganti Undang-Undang Nomor 21 tahun 1959 tentang Memperberat Ancaman Hukuman Terhadap Tindak Pidana Ekonomi, Lembaran Negara Tahun 1959 Nomor 130.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 16 Undang-Undang Nomor 11 / PNPS / tahun 1963 tentang Pemberantasan Kegiatan Subversi, Lembaran Negara Tahun 1963 Nomor 101, Tambahan Lembaran Negara Nomor 2595.
Undang-Undang Nomor 2/Pnps./1964 tentang Tata Cara Pelaksanaan Pidana Mati yang Dijatuhkan oleh Pengadilan di Lingkungan Peradilan Umum dan Militer, Lembaran Negara Republik Indonesia Tahun 1964 Nomor 38.
Undang-Undang Nomor 4 tahun 1976 tentang Perubahan dan Penambahan Beberapa Pasal Dalam Kitab Undang-Undang Hukum Pidana Bertalian Dengan Perluasan Berlakunya Ketentuan PerundangUndangan Pidana, Kejahatan Penerbangan Dan Kejahatan terhadap Sarana / Prasarana Penerbangan, Lembaran Negara Republik Indonesia Tahun 1976 Nomor 26, Tambahan Lembaran Negara Nomor 3080.
Undang-Undang Nomor 5 tahun 1997 tentang Psikotropika, Lembaran Negara Republik Indonesia Tahun 1997 Nomor 10, Tambahan Lembaran Negara Republik Indonesia Nomor 3671.
Undang-Undang Nomor 10 tahun 1997 tentang Ketenaganukliran, Lembaran Negara Republik Indonesia Tahun 1997 Nomor 23, Tambahan Lembaran Negara Republik Indonesia Nomor 3676.
Undang-Undang Nomor 22 tahun 1997 tentang Narkotika, Lembaran Negara Tahun 1997 Nomor 67, Tambahan Lembaran Negara Nomor 3698.
Undang-Undang Nomor 31 tahun 1999 tentang Pemberantasan Tindak Pidana Korupsi, Lembaran Negara Republik Indonesia tahun 1999 Nomor 140, Tambahan Lembaran Negara Republik Indonesia Tahun Nomor 3874.
Microsoft Word REVISED BLJ 2016 CONTENT 5 juni.docx Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 17 ERROR: ESSAY NOT FOUND COMPARING CENSORSHIP IN CHINA AND SOUTH KOREA Quynh-Dan Nguyen Law School, Faculty of Laws, Humanity and Arts University of Wollongong E-mail: qdn994@uowmail.edu.au Abstract Increasing use of Internet all over the world has made world’s communication borderless.
While such condition might benefited most people, however, it invites greater risks of misinformation and opportunities for detrimental self-expression.
State’s control has various degree of manners in controlling a massive flow of information.
This paper will examine the current methods of internet control utilized by the governments of China and Korea, and analyze the extent to which these respective regimes impinge on the human right to freedom of opinion and expression.
It begins with an overview on the international standards for freedom of expression, and the limited permissible restrictions upon the right.
Furthermore, the examination of the existing legislation and regimes implemented in China and Korea, respectively, and a comparison of features such as legal grounds and practical effectiveness will be undertaken.
Finally, it will discuss whether the censorship regimes implemented in China and Korea constitute legitimate restrictions upon, or impermissibly violate, the right to freedom of expression.
Keywords: Censorship, human rights, freedom of opinion, freedom of expression I.
INTRODUCTION The rapid proliferation of Internet throughout the world has facilitated an unprecedented level of communication.
Increased dissemination of information, however, invites greater risks of misinformation and opportunities for detrimental selfexpression.
Today, almost every state controls online access to information in some way,1 though in varying manners and degrees.2 The People’s Republic of China, which comprises the largest number of Internet users in the world, 3 and the 1 Kristen Farrell, ‘The Big Mamas Are Watching: China’s Censorship of the Internet and the Strain on Freedom of Expression’ (2007) 15 Michigan State Journal of International Law 577, 577.
2 Farrell, above n 1, 577; Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 714.
3 OpenNet Initiative, China: Country Profile (9 August 2012) OpenNet Initiative <http://access.opennet.net/wpBrawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 18 Republic of Korea (South Korea, hereafter referred to simply as ‘Korea’), the world leader in internet penetration,4 both enact considerable restrictions upon internet activity through various filtering, surveillance and legislative methods.
Although Korea today enjoys one of the most successful democracies in East Asia,5 the controls it exerts to regulate online activity are not as dissimilar to those of authoritarian China as may be expected.
Despite the guarantees of freedom of expression in each of their respective Constitutions,6 the restrictions placed upon online use by these two regimes may pose serious risks to citizens’ rights freedom of expression.
content/uploads/2011/12/accesscontestedchina.pdf> 276; citing International Telecommunication Union, Internet Indicators: Subscribers, Users and Broadband Subscribers (2009) <http://www.itu.int/ITUD/icteye/Reporting/ ShowReportFrame.aspx?ReportName=/WTI/Inf ormationTechnologyPublic&ReportFormat =HTML4.0&RP_intYear=2009&RP_intLangua geID=1&RP_bitLiveData=False>.
4 Eric Fish, ‘Is Internet Censorship Compatible With Democracy?
Legal Restrictions of Online Speech in South Korea’ (2009) 2 Asia-Pacific Journal on Human Rights and the Law 43, 50.
5 Yun-han Chu et al., How East Asians View Democracy (Columbia University Press, 2008) 28, cited in Fish, above n 4, 50.
6 See « 中 华 人 民 共 和 国 宪 法 » [Constitution of the People’s Republic of China] art 35; «대한민국 헌법» [Constitution of the Republic of Korea] art 21.
This essay will examine the current methods of internet control utilised by the governments of China and Korea, and analyse the extent to which these respective regimes impinge on the human right to freedom of opinion and expression.
Part I will provide an overview on the international standards for freedom of expression, and the limited permissible restrictions upon the right.
Part II will examine the existing legislation and regimes implemented in China and Korea, respectively, and a comparison of features such as legal grounds and practical effectiveness will be undertaken in Part III.
Finally, Part IV will discuss whether the censorship regimes implemented in China and Korea constitute legitimate restrictions upon, or impermissibly violate, the right to freedom of expression.
II.
METHODOLOGY Since the paper will examine the current methods of internet control utilized by the governments of China and Korea, and analyze the extent to which these respective regimes impinge on the human right to freedom of opinion and expression, normativejuridical research-method is applied.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 19 The approach of this paper is the statute and comparative approach.
This research will explore the comparison of state control on freedom of opinion and expression between China and SothKorea.
III.
RESULT AND DISCUSSION FREEDOM OF OPINION AND EXPRESSION It is appropriate to begin with a look at the nature of the right to freedom of opinion and expression.
This right, also described as ‘freedom of speech’, is preserved in international law, both in the United Nation (UN)’s Universal Declaration of Human Rights7 (“UDHR”) and the International Covenant on Civil and Political Rights8 (“ICCPR”).
Article 19 of the UDHR provides for the right to freedom of expression, which includes “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers […] through any […] media of 7 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948).
8 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976).
his choice”.
9 Article 19 of the ICCPR provides substantially the same right.10 The UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (“Special Rapporteur”) has recognised that the wording of Article 19 of the UDHR includes and accommodates future technological developments, 11 and as such, it is accepted that the Internet (and other new communication technologies) is equally applicable under the existing framework of international human rights law.12 It must also be recognised that freedom of expression is not an absolute right.
Article 19.3 provides that legitimate restrictions may be made, only ‘for the respect of the rights or reputations of others, the protection of 9 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) art 19.
10 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 19.
11 Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (16 May 2011) 7 [21].
12 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 20 national security, public order, public health, or morals’.13 Legitimacy based on the purposes set out in the article 19.3 is the second of three elements set out in the three-part, cumulative test framed by the Special Rapporteur.
The first requirement is predictability and transparency (restrictions must be provided by law, which must be formulated with sufficient precision and made accessible to the public14), and the final element is necessity and proportionality (restrictions must be proven as necessary and the least restrictive means required to achieve the purported aim).
15 Variations of this three-part test have been used by international courts to examine limitations on freedom of expression,16 and in Part III of this essay, these three elements will be used as means to 13 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 19.3.
14 Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (16 May 2011) 8 [24].
15 Ibid.
16 Philip Chwee, ‘Bringing in a New Scale: Proposing a Global Metric of Internet Censorship’ (2015) 38 Fordham International Law Journal 825, 836. assess the respective internet censorship regimes of China and Korea.
INTERNET CENSORSHIP IN CHINA AND SOUTH KOREA A.
China China’s legal and regulatory framework for internet control is considered to be the most advanced, complex and sophisticated regime of internet censorship in the world.17 A number of laws and administrative regulations, in conjunction with a sophisticated technological framework, operate to control internet use in China using two main strategies: directly controlling internet activity through blocking and filtering methods, and inducing selfcensorship by internet users through surveillance and punitive sanctions.
The ‘Great Firewall of China’ is a highly sophisticated system of blocking and filtering techniques.18 In China, internet 17 Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 702, citing Jan Bruck, Reporters Without Borders Warns Against Internet Censorship (3 December 2010) <http://www.dwworld.de/dw/article/0,,5349061,00.html>; Reporters without Borders, List of the 13 Internet Enemies (7 Nov 2006) <http://en.rsf.org/list-of-the-13-internetenemies-07-11-2006,19603>.
18 Jeffrey Chien-Fei Li, ‘Internet Control or Internet Censorship?
Comparing the Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 21 services are based on interconnecting networks, which all must pass through the Ministry of Information Industry’s international gateway.
19 As Internet Service Providers (ISPs) can only access global networks through one of the interconnecting networks, all internet access through Chinese ISPs is effectively captured by the government’s filter.20 The state is also able to regulate internet activity through Internet Information Service Providers (IISPs) and ISPs, by enforcing legislation which allocates liability to these bodies for the misconduct of their users.
The Measures for Managing Internet Information Services21 (“the Measures”) adopted in 2000 create a number of legal obligations for IISPs and ICPs, which compel them to conduct their own censorship practices, in order to avoid various sanctions.
Control Models of China, Singapore, and the United States to Guide Taiwan’s Choice’ (2013) 14 Pittsburgh Journal of Technology Law & Policy 1, 24.
19 Jongpil Chung, ‘Comparing Online Activities in China and South Korea: The Internet and the Political Regime’ (2008) 48(5) Asian Survey 727, 734-735.
20 Ibid.
21 « 互 联 网 信 息 服 务 管 理 办 法 » [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000.
The Measures make IIS providers directly responsible for content published on their servers.
22 They are prohibited by Article 15 from producing, reproducing, releasing or disseminating information that falls under the categories forbidden by the state, 23 and are further obliged by Article 16 to censor, record and report forbidden information.
24 Violation of these measures can make ICPs liable for fines, shutdown, criminal liability and licence revocation.
25 ISPs are also 22 OpenNet Initiative, China: Country Profile (9 August 2012) OpenNet Initiative <http://access.opennet.net/wpcontent/uploads/2011/12/accesscontestedchina.pdf> 276, 280; citing «互联网信息服务 管理办法» [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 20.
23 « 互 联 网 信 息 服 务 管 理 办 法 » [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 15.
24 « 互 联 网 信 息 服 务 管 理 办 法 » [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 16.
25 OpenNet Initiative, China: Country Profile (9 August 2012) OpenNet Initiative <http://access.opennet.net/wpcontent/uploads/2011/12/accesscontestedchina.pdf> 276, 280; citing «互联网信息服务 管理办法» [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 20.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 22 required by the Measures to record information relating to subscriber activity, and keep these records for 60 days for supply upon demand by relevant state authorities.26 Consequently, much of the implementation of internet censorship (such as keyword blocking and removal of search results 27 ) is carried out by IISPs and ISPs, who are controlled by the government through legal responsibilities.
Additionally, a “virtual police” system employs around 30,000 “cyber cops” to monitor online content, and selectively terminate domestic sites or block foreign sites that are found to disseminate ‘sensitive’ information.28 A wide range of topics are considered sensitive by the Chinese government.
29 Blocked online content includes information relating to independence for Taiwan or Tibet, the Dalai Lama, Falun Gong, police brutality, Tiananmen Square, human 26 « 互 联 网 信 息 服 务 管 理 办 法 » [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 14.
27 Farrell, above n 1, 586.
28 Chung, above n 19, 735.
29 Farrell, above n 1, 587. rights in China, democracy, as well as pornography and obscene content.30 Aside from controlling what content is accessible by blocking and filtering, the state also controls internet use by inducing self-censorship by netizens.
End users are subject to controls such as those issued by the Decision of the NPC Standing Committee on Safeguarding Internet Security (“the Decision”), 31 which prescribe sanctions including fines, content removal and criminal liability for violations.32 Numerous arrests have been made, not only of journalists, bloggers and activists, but even of ‘ordinary’ users of social media.
33 For example, in 2010, a Twitter user was arrested for retweeting a sarcastic comment about anti-Japanese protests in China.
34 77 imprisonments of netizens were reported in 2009,35 and Amnesty 30 See Chung, above n 19, 735; Farrell, above n 1, 587.
31 «全国人大常委会关于加强网络信 息保护的决定» [Decision of the NPC Standing Committee on Safeguarding Internet Security] (People’s Republic of China) National People's Congress Standing Committee, 28 December 2000.
32 OpenNet Initiative, China: Country Profile (9 August 2012) OpenNet Initiative <http://access.opennet.net/wpcontent/uploads/2011/12/accesscontestedchina.pdf> 276, 281.
33 See Chung, above n 19, 737.
34 OpenNet Initiative, above n 32.
35 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 23 International has reported China to have the largest number of imprisoned journalists and cyber-dissidents in the world.36 The threat of these sanctions pose even greater concern to netizens since the enactment in recent years of ‘real-name registration laws’, which require internet users to register their real name and personal information when signing up with ISPs or on websites such as microblogs and message boards.
Users may use nicknames or pseudonyms online but their identities are still discoverable by the microblog companies and the government.37 This scheme was first introduced on a national level in 2012 by the Decision, 38 which had the effect of creating the legal obligation of realname registration not only for blog 36 Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 704, citing Amnesty International, Background Information on Freedom of Expression in China (2011) <http://www.amnestyusa.org/individuals-atrisk/priority-cases/background-information-onshi-tao/page.do?id=1361025>.
37 Jyh-An Lee and Ching-Yi Liu, ‘Real-Name Registration Rules and the Fading Digital Anonymity in China’ (2015) 25 Washington International Law Journal 1, 12.
38 [Decision of the NPC Standing Committee on Safeguarding Internet Security] (People’s Republic of China) National People's Congress Standing Committee, 28 December 2000. providers, but those who allow “website access” or “post[ing] information via the network”.39 The law has since been further expanded to instant messaging applications and mobile phone SIM card purchasers.40 A draft “Cybersecurity Law” released in 2015 by the National People’s Congress in China also reiterates the current rules associated with real-name registration, 41 and imposes legal liability for violations by service providers, which include fines ranging between RMB 50,000 to 500,000 ($10,000 to $100,000 AUD) and licence suspension.
42 It is speculated that the draft will be passed into law with very few changes, based on past legislative behaviour.43 The combination of real-name registration, which removes anonymity 39 «全国人大常委会关于加强网络信 息保护的决定» [Decision of the NPC Standing Committee on Safeguarding Internet Security] (People’s Republic of China) National People's Congress Standing Committee, 28 December 2000, art 6; cited in Lee and Liu, above n 37, 13.
40 Lee and Liu, above n 37, 13.
41 [Cybersecurity Law (Draft)] (People’s Republic of China) National People's Congress Standing Committee, 7 July 2015, art 20 [unofficial English translation found here: <http://chinalawtranslate.com/cybersecuritydraf t/?lang=en>].
42 [Cybersecurity Law (Draft)] (People’s Republic of China) National People's Congress Standing Committee, 7 July 2015, art 53.
43 Lee and Liu, above n 37, 15.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 24 from internet use, as well as the threat of punitive action, creates a chilling effect upon internet speech, by encouraging self-censorship for fear of punishment by the state.
Research has even found that self-censorship caused by the suspicion and perception that one is being surveilled has been more effective than the Great Firewall at controlling internet use.44 B.
Republic of Korea The regulation of online content in Korea is largely enacted through the use of ‘takedown orders’ and defamation laws.
The primary regulatory body is the Korea Communications Standard Commission (KCSC), which is empowered 45 to determine what content constitutes “unlawful information” on the internet, 46 and also make orders to intermediaries such as ICPs and website owners to block or shut down websites, 44 Davis, ‘China's Eye on the Internet’ ScienceDaily (online), 12 September 2007 <https://www.sciencedaily.com/releases/2007/0 9/070911202441.htm> 45 [Framework Act on Telecommunications] (Republic of Korea) 24 January 2011, art 3.
46 Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (21 March 2011) addendum 2 (‘Mission to the Republic of Korea’) 9 [32].
delete messages, and/or suspend users,47 pursuant to the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc.
(“the Network Act”).48 Under Article 44-7 of the Network Act, which prohibits the circulation of ‘unlawful’ information, the KCSC can order a provider of information communications services or a message board operator to reject, suspend or restrict such information.49 Failure by a person responsible for an online provider or message board to comply with such a request is punishable by a fine of up to ten million won or imprisonment for up to two years.50 This legislation creates liability for information communications service providers in respect to their users’ 47 OpenNet Initiative, South Korea: Country Profile (6 August 2012) OpenNet Initiative <http://access.opennet.net/wpcontent/uploads/2011/12/accesscontested-southkorea.pdf> 355.
48 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012.
49 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 44-7.
50 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 73(5); Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12 [44].
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 25 actions.
Internet portals have been found liable by the Supreme Court for failing to delete defamatory and malicious comments posted on their news services websites, and have been ordered to pay compensation of up to KRW 30 million ($30,000 AUD) in damages to victims of defamation.
51 The threat of these significant sanctions act to equip the KCSC with a considerable amount of authority over intermediaries in regulating online content.52 Internet intermediaries are also required to play a role in online censorship through operation of Article 44-2 of the Network Act.
This provision allows victims of defaming or otherwise personally harmful information to request the relevant provider of information and communications services to delete the information.
53 Upon receipt of such a request, the provider, or intermediaries, must take action to delete or block access to the 51 Park Sungwoo and Kim Miju, ‘Court says Web portals are responsible for comments’ Korea JoongAng Daily (online), 18 April 2009 <http://koreajoongangdaily.joins.com/news/artic le/article.aspx?aid=2903746>.
52 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12 [44].
53 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 44-2. information for up to 30 days.
54 During such a suspension, the KCSC will determine whether the information is to be allowed or deleted.
However, the operation of Article 44-2 means that information claimed to be fraudulent or scandalous can be blocked immediately, before an actual determination is made about the legitimacy of the complaints.
Although the problem of cyberbullying was cited as the main justification for introduction of this law in 2008, 55 many have perceived the measures as a method of controlling online discussion for the KCSC.
56 Critics have pointed to cases that appear to suggest that this power has been exercised in relation to political discussion or policy-based criticism of government officials.57 Moreover, Article 44-3 encourages intermediaries to monitor and take temporary measures at their own discretion, even without complaints.
58 Article 44-2(6) further provides that if a provider takes necessary measures, it may have its 54 OpenNet Initiative, above n 47, 355.
55 Ibid.
56 See Fish, above n 4, 86.
57 Ibid 86-88.
58 See [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 44-3.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 26 liability for damages mitigated or discharged.59 The combination of these two provisions create a concern that intermediaries may be inclined to ‘err on the side of safety’ by overusing their vague scope of discretion in Article 443 to avoid liability.60 Regulation of online content in Korea is generally directed at ‘socially harmful content’ and content relating to national security, in particular content relating to North Korea.
61 Content containing North Korea propaganda falls under the classification of “illegal content” due to operation of the National Security Act,62 which prohibits content which “praises, promotes, and glorifies North Korea”.63 Blocking of 27 foreign sites, 338 social networking accounts and 132 online communities, and deletion of 15,168 items of propaganda for jeopardising national 59 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 44-2(6).
60 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 11.
61 OpenNet Initiative, above n 47, 360.
62 «국가보안법» [National Security Act] (Republic of Korea) 1948.
63 Freedom House, Freedom on the Net: South Korea (2014) Freedom House <https://freedomhouse.org/sites/default/files/res ources/South%20Korea.pdf> 5. security were reported by police in 2013.64 Individuals have also been arrested for discussing North Korea online.
In 2002, a Democratic Labor Party activist, Kim Kangpil, was accused of committing “an act advantageous to the enemy” under Article 7 of the National Security Act and sentenced to one year’s imprisonment for posting articles about North Korea on the party’s website.65 Another of the central priorities of Korea’s online filtering policy is protection of the youth from “harmful” internet content, described as “immoral, violent, obscene, speculative and antisocial information”.
66 Article 42-2 of the Network Act provides that those who transmit “unwholesome media” as defined by the Juvenile Protection Act must take measures to restrict access to juveniles,67 and Article 42 requires that websites containing adult content must 64 Ibid; citing Hongdu Park [In Park’s first year, the number of violators of the National Security Act has leaped] 경량 신문 (online), 19 February 2014 <http://news.khan.co.kr/kh_news/khan_art_vie w.html?artid=201402190924151&code=940202 >.
65 Chung, above n 19, 739.
66 OpenNet Initiative, above n 47, 354.
67 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 42-2.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 27 warn visitors and require identification verification for access.68 Homosexual content was classified as “obscenity and perversion” in the 2001 “Internet Content Rating Service”, 69 designed to protect adolescents from viewing content deemed by officials as “illegal and harmful materials” online.
70 Gay and lesbian websites were classified as “harmful” to minors and youth, and <www.exzone.com>, a website about gay and lesbian issues, was shut down as a result.71 However, this practice was reversed by 2003 due to international backlash, 72 influence from Seoul High Court dicta stating that preventing youths from viewing homosexual content might be unconstitutional, as well as a recommendation by the National Human Rights Commission.73 Another important method of controlling online speech is through the penalties for “cyber defamation”, which are specifically provided in the Network 68 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 42; OpenNet Initiative, above n 47, 354.
69 Chung, above n 19, 739.
70 Ibid.
71 Ibid.
72 Fish, above n 4, 77, 94.
73 Ibid 78.
Act.
74 A person who defames another through an information and communications network is punishable by imprisonment for up to three years or by fine not exceeding 20 million won for facts, or imprisonment up to ten years or by fine not exceeding 50 million won for false facts.75 The penalties for cyber defamation are noticeably stronger than those prescribed for defamation in the criminal law.
Under Article 307 of the Criminal Act, defamation is punishable by imprisonment for up to two years or by fine not exceeding five million won for facts, or imprisonment up to ten years or by fine not exceeding ten million won for false facts.76 The higher speed and wider audience reach of online communication have been cited as reasons for the harsher penalties.77 The Network Act’s stated purpose includes an aim of “developing an environment in which people can utilize information and communications 74 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 70.
75 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 70.
76 «형법» [Criminal Act] (Republic of Korea) 3 October 1953, art 307.
77 Freedom House, above n 63, 11.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 28 networks in a sounder and safer way.”78 However, concern has been expressed that the cyber defamation laws have been used to target statements that are true and in the public interest and penalise individuals who express criticisms of the government.79 COMPARISON A.
Regulated Content The legal grounds for internet censorship in China are found in Article 15 of the Measures, and include: national security and national unity, state interest and honour, ethnic discrimination, state policy towards religion, social order and stability, the regulation of pornography, gambling, violence, homicide or terrorism, human dignity, and rights infringement.80 Research indicates that China’s internet blocking is primarily focused on content that has the potential to undermine the authority of the Communist government and its control 78 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 1.
79 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 8 [25].
80 [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 15. over social stability,81 as well as content that relates to politically sensitive issues.
82 Chinese filtering also targets ‘socially harmful’ content, primarily websites related to pornography and online gambling.
83 The legal grounds for blocking online content in Korea are found in the nine categories of forbidden information provided by Article 44-7 of the Network Act.
These grounds include obscenity, defamation, creating fear, protection for juveniles against “unwholesome” material, state secrets, activity prohibited by the National Security Act, and criminal activity.84 Testing conducted by OpenNet Initiative consistently finds that filtering in Korea primarily targets content related to conflict and security, particularly regarding North Korea.
85 Besides protection of national security, however, online regulation in Korea also has a significant emphasis on protection against defamation and abusive behaviour, and protection against ‘harmful material’ including 81 OpenNet Initiative, above n 47, 287.
82 Ibid.
83 Ibid.
84 [Act on Promotion of Information and Communications Network Utilization and Information Protection, etc] (Republic of Korea) 18 August 2012, art 44-7.
85 OpenNet Initiative, above n 47, 360.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 29 gambling, pornography, nudity and sexual violence.86 A comparison of the categories of content subject to online regulation in these two countries reveal a number of similarities.
Although Korea does not engage in the same level of filtering as China,87 both countries primarily focus on content that each respective state considers a threat to its political stability.
China blocks content relating to issues such as Taiwan and Tibet, while Korea blocks content relating to North Korea.
Both countries also engage in online censorship for the purposes of protecting society from perceived moral or social harms such as gambling and pornography.
This paternalistic approach is markedly Asian in nature, and reveals the Confucian ideology that both countries share.88 B.
Methods of censorship While both countries use some similar methods to regulate online activity, they rely more heavily on different strategies.
In China, the focus 86 See ibid.
87 See ibid; OpenNet Initiative, above n 32.
88 See Jong-Sung You, ‘The Cheonan Dilemmas and the Declining Freedom of Expression in South Korea’ (Paper presented at the 2014 International Studies Association annual convention, Toronto, Canada, 28 March 2014) 23. is on the extensive filtering capabilities of the Great Firewall.
In Korea, on the other hand, the level of filtering is “generally low” 89 , and the state’s approach is more dependent on other measures such as takedown orders and defamation laws.90 Both countries use strategies to induce self-censorship in addition to directly controlling accessibility of online content.
China’s surveillance of internet users and arrests of cyber-dissidents creates a chilling effect in respect to political speech, while a degree of selfcensorship in relation to abusive speech is encouraged by the threat of cyber defamation laws in Korea.
C. Cyber defamation While China has criminal laws applying to defamatory statements alleging false facts, 91 Korea’s law is even stricter in that it also punishes true facts.
Korean law also distinguishes Cyber Defamation as a distinct offence, unlike China, whose legislation specifies that online expression falls under the basic criminal laws for 89 See OpenNet Initiative, above n 47, 360.
90 Ibid.
91 John M. Leitner, ‘To Post or Not to Post: Korean Criminal Sanctions for Online Expression’ (2010) 25 Temple International and Comparative Law Journal 43, 66.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 30 defamation.
92 China applies the same punishment for defamation, regardless of medium of expression, while the cyber defamation laws in Korea are prescribed higher maximum penalties than defamation expressed in other mediums.
This difference may be explained by the unique socio-cultural context of Korean society, and events that have led to a stronger drive for protection against defamatory speech.
The primarily cited motivation for Korea’s online restriction relating to defamatory comments and online speech stems from the problem of ‘cyber-bullying’ in Korean society.
93 Societal factors which contribute to the high numbers of suicides triggered by online speech include the high penetration of Internet use in Korean society, a small number of universally used discussion sites, and a cultural emphasis on ‘keeping face’.
94 The suicide of the “Nation’s Actress”, Choi Jinsil, in 2008 due to false rumours, among a number of other high-profile celebrity suicides linked to online rumours, have prompted public support for increased governmental control of 92 Ibid.
93 See Fish, above n 4, 84-85.
94 Fish, above n 4, 84. online communication.
95 This social issue, although not unique, bears a heavier impact in Korean society, and has motivated the introduction of measures such as cyber defamation laws in Korea.96 D. Real name registration China and Korea are the only two countries in the world to have adopted systems of online real-name registration.
97 Although only China currently has this scheme in place, it was first introduced in Korean law.98 The real-name system was introduced in Korea in 2009 as a response to the ‘cyber-bullying’ suicide events discussed above.
99 Article 44-5 of the Network Act required real identity verification of online users of websites with more than 100,000 visitors a day.
100 The scheme, however, was 95 Fish, above n 4, 84-85.
96 See Fish, above n 4.
97 Fish, above n 4, 84.
98 David A. Caragliano, ‘Real Names and Responsible Speech: The Cases of South Korea, China, and Facebook’ (Paper presented at The Right to Information & Transparency in the Digital Age, Stanford University, 11-12 March 2013); Lee and Liu, above n 37; John Leitner, ‘Identifying the Problem: Korea’s Initial Experience with Mandatory Real Name Verification on Internet Portals’ (2009) 9 Journal of Korean Law 83.
99 John Leitner, ‘Identifying the Problem: Korea’s Initial Experience with Mandatory Real Name Verification on Internet Portals’ (2009) 9 Journal of Korean Law 83, 86-94.
100 Ibid 90.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 31 abandoned after a unanimous ruling by the Constitutional Court of Korea that Article 44-5 was unconstitutional in 2012.
101 The Court found that ‘the public gains achieved had not been substantial enough to justify restrictions on individuals’ rights to free speech’.102 Although China originally introduced the system based on the Korean model, 103 it has declined to follow Korea’s abandonment of the scheme, and continues to advocate the real-name registration system in its new 2015 draft law.
E. Practical effectiveness The methods employed by China and Korea to censor online content face some challenges in respect to practical application.
Blocking of content, by both countries, can be circumvented by methods including proxy servers or Virtual Private Networks (VPNs).
104 The “Network Authoritarian Model” 105 used by the Chinese government to take advantage 101 Freedom House, above n 63, 12.
102 ‘South Korea’s real-name net law is rejected by court’ , BBC (online), 23 August 2012 < http://www.bbc.com/news/technology19357160>.
103 Lee and Liu, above n 37, 16.
104 Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 729.
105 Lee and Liu, above n 37, 3. of the business sector’s profit-driven motives and corporate resources relies upon compliance by private ISPs.
This presents a challenge when ISPs do not have incentive or ability to cooperate, which is beginning to surface with the introduction of real-name registration rules which create overwhelming compliance costs, 106 resulting in inconsistencies and uncertainties in enforcement.
107 Uneven application of the law has undermined the effectiveness of the real-name registration system in Korean experience.108 Korea’s methods are unable to control foreign websites.
109 While the Chinese filtering system requires access to all foreign sites to pass through the government-controlled networks, and threatens to kick out foreign websites that fail to comply, 110 Korea’s limited internet filtering prevents access to only a limited number of websites, and the Korean government has thus far been unwilling to kick out major websites 106 Ibid 23-26.
107 Ibid.
108 David A. Caragliano, ‘Real Names and Responsible Speech: The Cases of South Korea, China, and Facebook’ (Paper presented at The Right to Information & Transparency in the Digital Age, Stanford University, 11-12 March 2013) 6.
109 Fish, above n 4, 92.
110 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 32 (such as Youtube and Google) for failing to comply with its laws.
111 Another obstacle for Korea’s regime is the inability of the KCSC to handle the number of complaints it receives.112 It is estimated that to deal with the hundreds and thousands of articles and comments for which it receives complaints, the Commission would need to hire thousands more employees.
113 In comparison to these weaknesses in the Korean model, the Chinese regime of online censorship and its highly advanced Great Firewall filtering system is much more effective at controlling online content.
LEGITIMATE RESTRICTIONS TO FREEDOM OF EXPRESSION?
A.
Legal grounds Pursuant to Article 19.3 of the ICCPR, restrictions upon the right to expression are only permissible ‘for the respect of the rights or reputations of others, the protection of national security, public order, public health, or morals’.
114 In respect to protection of morals, it is emphasised by the UN 111 Ibid.
112 Ibid.
113 Ibid.
114 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 19.3.
Human Rights Committee (“the Committee”) that “the concept of morals derives from many social, philosophical and religious traditions” and that “limitations must be understood in the light of universality of human rights”.
115 As such, China and Korea’s relatively paternalistic approaches to online regulation in regards to content such as pornography and gambling should be accepted, as they are informed by cultural conceptions of morals which are legitimate for the contexts in which they operate.
However, while some of the legal grounds provided in the Chinese and Korean legislation authorising blocking/deletion of online information do fall under the permissible grounds (such as child protection), a number of grounds have been criticised for being too broad and vague.
Legal grounds provided in Article 15 of China’s Measures, such as national unity, state honour and social order, are found to be ‘relatively abstract and overbroad’ 116 and 115 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 19, General Comment 23, quoted in Li, above n 18, 19.
116 Li, above n 24.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 33 ‘needlessly vague’.
117 The prohibited categories of information in Article 447(1) of Korea’s Network Act similarly lack clarity.
The prohibition on “content that attempts, aids or abets to commit a crime” has been identified as too broad by the Special Rapporteur,118 especially considering the wording of some crimes such as “obstruction of business”.
119 The vagueness of these broad grounds for censorship is problematic, as they create too much ambiguity to operate as the precise restrictions allowed by Article 19.3.
B. Proportionality Even where restrictions are based on acceptable legal grounds, they are also required by Article 19.3 of the ICCPR to be necessary and the least restrictive means required to achieve the purported aim.
120 The Committee has stated that “[t]he penalization of a media outlet, publishers or journalist solely for being critical of the government or the political social system espoused by the government can 117 Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 705.
118 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12 [45].
119 Ibid.
120 Ibid.
never be considered to be a necessary restriction of freedom of expression”.121 Many of the arrests of individuals in China and Korea for online speech have been disproportionate, as they have related to speech considered obscene or scandalous, or political without posing any threat to national security.
122 As filtering can provide less restrictive means of dealing with subversive speech, the criminal punishment of imprisonment is clearly disproportionate in these cases, and constitutes impermissible restrictions of freedom of expression.
The Committee has further stated that Article 19.3 requires permissible restrictions to be “contentspecific” 123 and “generic bans on the operation of certain sites and systems are not allowed.” 124 A system that utilises general filtering and a blocking list, like China’s Great Firewall, is not necessary, as there is no “direct and immediate connection between the 121 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 12, General Comment 27, [42], quoted in Li, above n 18, 20.
122 See OpenNet Initiative, above n 32.
123 International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 12, General Comment 27, [43], quoted in Li, above n 18, 21.
124 Ibid.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 34 expression and the threat”.125 Although Korea’s system of takedown orders blocks content reactively rather than proactively, there are still concerns about the Network Act’s delegation of responsibility to intermediaries rather than an independent body, especially considering provisions that give intermediaries a vague discretion to block information that is likely to be over-applied to avoid liability.
126 The excessive authority given to intermediaries to regulate online content may indicate that this system also fails the necessity test.
Korea’s cyber defamation laws also fail on proportionality, as their ‘inherently harsh’ sanctions of up to ten years imprisonment or up to 50 million won ($50,000) impose disproportionate penalties.
127 They are even more disproportionate in respect to defamation for true facts.
The real-name registration scheme currently implemented in China is also disproportionate to its purported aim of addressing online malicious speech, pornography and “unfounded 125 Li, above n 18, 39.
126 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 11 [41].
127 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 8 [28].
rumours” 128 .
Korea’s experience with this scheme has highlighted numerous problems, including privacy violations, cyber security, and practical enforcement issues.
129 Considering these factors, the Constitutional Court of Korea has found that the scheme’s benefits were not sufficient to justify the significant restrictions it imposed on citizens’ right to free speech.
130 Additionally, there exist other less restrictive methods to trace online users131 or to remedy harm done by a person’s expression.132 C. Predictability and transparency The criterion of predictability and transparency requires that restrictions must be formulated with sufficient precision and made accessible to the public.133 China’s regime of internet filtering fails to meet the transparency requirements 128 Lee and Liu, above n 37, 16.
129 See Lee and Liu, above n 37.
130 Identity Verification System on the Internet 47, 252(consolidated), August 23, 2012] <http://search.ccourt.go.kr/>.
131 Ibid 23-30.
132 Caragliano, above n 108, 7.
133 Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (16 May 2011) 8 [24].
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 35 of Article 19.3, with results from OpenNet Initiative testing reporting a low level of transparency, due to the lack of a publicly available list of banned sites, as well as no available mechanisms for users to request review of blocked sites.134 It is also not obvious when a website has been blocked, as blocked sites will redirect users to a network timeout error page, which can be attributed to network errors.135 It is also important that legislation restricting the right to freedom of expression is applied by a body which is independent of any political, commercial, or other unwarranted influences, in a manner that is neither arbitrary nor discriminatory, with adequate safeguards against abuse.136 The constitution and procedures of the KCSC have raised serious concerns that there are insufficient safeguards to ensure that it does not operate as a de facto post-publication censorship body to delete information critical of the Government or powerful 134 OpenNet Initiative, above n 32, 287.
135 Ibid.
136 Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (16 May 2011) 8 [24].
corporations.137 Although the KCSC is a nominally independent statutory organisation, its nine members are appointed by the President, 138 which raises questions about its independence, given the degree of influence that can be exerted by the President and dominant political party.139 Concerns have also have been expressed about the lack of transparency, accountability and scrutiny of the KCSC.
140 The procedures of removing illegal online content do not notify authors of blocked or deleted content nor allow them to provide their opinion before the KCSC’s decision.141 While authors can challenge the commission directly about a ruling, they have no independent avenue for appeal.
142 This raises concerns that judgements made by the KCSC may be arbitrary and politically, 137 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12 [47].
138 Freedom House, above n 63, 6, citing Jeong-hwan Lee, ‘A private organization under the president?
The KCSC’s structural irony’ (in Korean), Media Today (online), 14 September 2011, <http://bit.ly/1aYr0GA>.
139 See Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 9 [32].
140 See Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12.
141 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12 [47]; Freedom House, above n 63, 4.
142 Freedom House, above n 63, 6.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 36 socially or culturally motivated, lacking legal grounds.
143 It has been reported that the KCSC in many cases has blocked entire blogs even where only a small portion of posts are deemed problematic.144 The National Human Rights Commission of Korea’s recommendation that the authority and functions of the KCSC be transferred to an independent self-regulatory body with higher transparency and accountability 145 would be appropriate to ensure that online regulation which amounts to restriction of the freedom of expression is carried out in a more legitimate manner.
IV.
CONCLUSION Freedom of expression is a fundamental human right, and the importance in its preservation is reflected by the extremely limited nature of the acceptable grounds for restriction in ICCPR Article 19.3.
By failing to comply with the requirements of Article 19.3, the internet censorship regimes of China and South Korea 143 Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12; Freedom House, above n 63, 6.
144 Freedom House, above n 63, 6.
145 See Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 12. constitute violations of the rights provided by Article 19 and guaranteed by their own Constitutions.
Even more problematic than direct methods of censorship, are the measures that have been taken to conduct surveillance upon citizens, or punish individuals for their online speech.
Governmental censorship against a specific speaker, along with paranoia and fear of sanctions, create a culture of self-censorship.
146 Selfcensorship may create a chilling effect, which, in turn, can effect mass censorship.147 While the internet regulatory regimes in China and Korea share some similarities, however, their impacts are not the same.
Although they both regulate online content on relatively similar grounds, and censor directly as well as inducing self-censorship, the major difference lies in the degree to which they exert control over political speech.
While internet users are prohibited from raising anti-government issues in China, netizens in Korea are free to discuss or even criticise government policies and political 146 Li, above n 18, 17.
147 Ibid, citing N.Y. Times Co. v Sullivan (1964) 376 U.S. 254, 278-79 (quoting Smith v California (1959) 361 U.S. 147, 15354).
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 37 leaders, provided the speech does not endanger ‘national security’ or constitute ‘cyber defamation’.
148 This key difference preserves the distinction between China’s authoritarian state, and Korea’s democracy, for which freedom of expression and political critique is essential.
However, there is a still a need for redress of both regimes, in order to protect the rights to selfexpression of citizens in China and Korea.
Both states must find a balance, to regulate online activity for the benefit of their citizens, but only through restrictions to the right to freedom of expression for reasons and in ways that are legitimately permissible by international law.
REFERENCES JOURNAL Eric Fish, ‘Is Internet Censorship Compatible With Democracy?
Legal Restrictions of Online Speech in South Korea’ (2009) 2 Asia-Pacific Journal on Human Rights and the Law 43, 50.
South Korea’s real-name net law is rejected by court , BBC (online), 23 August 2012 < http://www.bbc.com/news/techn ology-19357160>.
148 Chung, above n 19, 740.
David A. Caragliano, ‘Real Names and Responsible Speech: The Cases of South Korea, China, and Facebook’ (Paper presented at The Right to Information & Transparency in the Digital Age, Stanford University, 11-12 March 2013); Lee and Liu, above n 37; John Leitner, ‘Identifying the Problem: Korea’s Initial Experience with Mandatory Real Name Verification on Internet Portals’ (2009) 9 Journal of Korean Law 83.
David A. Caragliano, ‘Real Names and Responsible Speech: The Cases of South Korea, China, and Facebook’ (Paper presented at The Right to Information & Transparency in the Digital Age, Stanford University, 11-12 March 2013) 6.
Davis, ‘China's Eye on the Internet’ ScienceDaily (online), 12 September 2007 <https://www.sciencedaily.com/ releases/2007/09/070911202441 .htm> Decision of the NPC Standing Committee on Safeguarding Internet Security] (People’s Republic of China) National People's Congress Standing Committee, 28 December 2000.
Freedom House, Freedom on the Net: South Korea (2014) Freedom House <https://freedomhouse.org/sites/ default/files/resources/South%2 0Korea.pdf> Hongdu Park, ‘박근혜 정부 1 년 ‘국가보안법 위반 사범’ 대폭 Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 38 증가’ [In Park’s first year, the number of violators of the National Security Act has leaped] 경량 신문 (online), 19 February 2014 <http://news.khan.co.kr/kh_new s/khan_art_view.html?artid=201 402190924151&code=940202>.
Identity Verification System on the Internet (인터넷 실명제) [242(A) KCCR 590, 2010 헌마 47, 252(consolidated), August 23, 2012] <http://search.ccourt.go.kr/>.
Jeffrey Chien-Fei Li, ‘Internet Control or Internet Censorship?
Comparing the Control Models of China, Singapore, and the United States to Guide Taiwan’s Choice’ (2013) 14 Pittsburgh Journal of Technology Law & Policy 1.
Jeong-hwan Lee, ‘A private organization under the president?
The KCSC’s structural irony’ (in Korean), Media Today (online), 14 September 2011, <http://bit.ly/1aYr0GA>.
Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697.
Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 702, citing Jan Bruck, Reporters Without Borders Warns Against Internet Censorship (3 December 2010) <http://www.dwworld.de/dw/article/0,,5349061, 00.html>; Reporters without Borders, List of the 13 Internet Enemies (7 Nov 2006) <http://en.rsf.org/list-of-the-13internet-enemies-07-112006,19603>.
Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697, 704, citing Amnesty International, Background Information on Freedom of Expression in China (2011) <http://www.amnestyusa.org/ind ividuals-at-risk/prioritycases/background-informationonshitao/page.do?id=1361025>.
Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697.
Jessica E. Bauml, ‘It’s a Mad, Mad Internet: Globalization and the Challenges Presented by Internet Censorship’ (2010) 63 Federal Communications Law Journal 697.
John Leitner, ‘Identifying the Problem: Korea’s Initial Experience with Mandatory Real Name Verification on Internet Portals’ (2009) 9 Journal of Korean Law 83.
Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 39 John M. Leitner, ‘To Post or Not to Post: Korean Criminal Sanctions for Online Expression’ (2010) 25 Temple International and Comparative Law Journal 43.
Jongpil Chung, ‘Comparing Online Activities in China and South Korea: The Internet and the Political Regime’ (2008) 48(5) Asian Survey 727.
Jong-Sung You, ‘The Cheonan Dilemmas and the Declining Freedom of Expression in South Korea’ (Paper presented at the 2014 International Studies Association annual convention, Toronto, Canada, 28 March 2014) 23.
Jyh-An Lee and Ching-Yi Liu, ‘RealName Registration Rules and the Fading Digital Anonymity in China’ (2015) 25 Washington International Law Journal 1.
Kristen Farrell, ‘The Big Mamas Are Watching: China’s Censorship of the Internet and the Strain on Freedom of Expression’ (2007) 15 Michigan State Journal of International Law 577.
Mission to the Republic of Korea, UN Doc A/HRC/17/27/Add.2, addendum 2, 9 [32].
N.Y. Times Co. v Sullivan (1964) 376 U.S. 254, 278-79 (quoting Smith v California (1959) 361 U.S. 147, 153-54).
OpenNet Initiative, China: Country Profile (9 August 2012) OpenNet Initiative <http://access.opennet.net/wpcontent/uploads/2011/12/accessc ontested-china.pdf> 276, 280; citing «互联网信息服务管理办 法 » [Measures for Managing Internet Information Services] (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000, art 20.
Park Sungwoo and Kim Miju, ‘Court says Web portals are responsible for comments’ Korea JoongAng Daily (online), 18 April 2009 <http://koreajoongangdaily.joins .com/news/article/article.aspx?ai d=2903746>.
Philip Chwee, ‘Bringing in a New Scale: Proposing a Global Metric of Internet Censorship’ (2015) 38 Fordham International Law Journal 825.
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Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (16 May 2011) 7 [21].
Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the Brawijaya Law Journal v.3 n.1 2016 Law and Human Right Issues 40 promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (21 March 2011) addendum 2 (‘Mission to the Republic of Korea’) 9 [32].
Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, 17th sess, Agenda Item 3, UN Doc A/HRC/17/27 (16 May 2011) 8 [24].
Yun-han Chu et al., How East Asians View Democracy (Columbia University Press, 2008) 28, cited in Fish, above n 4, 50.
CONVENTIONS International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 19. International Covenant on Civil and Political Rights, opened for signature 16 December 1966 999 UNTS 171 (entered into force 23 March 1976) art 12, General Comment 27, [43], quoted in Li, above n 18.
LEGISLATIONS Act on Promotion of Information and Communications Network Utilization and Information Protection, etc (Republic of Korea) 18 August 2012, art 442(6).
Cybersecurity Law (Draft)] (People’s Republic of China) National People's Congress Standing Committee, 7 July 2015, art 20 [unofficial English translation found here: <http://chinalawtranslate.com/cy bersecuritydraft/?lang=en> Framework Act on Telecommunications (Republic of Korea) 24 January 2011 Measures for Managing Internet Information Services (People’s Republic of China) National People's Congress Standing Committee, Order No 292, 20 September 2000.
National Security Act (Republic of Korea) 1948.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.07 129 JURIDICAL IMPLICATIONS OF THE LEGAL NORM VOID OF INTERFAITH MARRIAGES IN INDONESIA (A Study on Judge’s Considerations) Kadek Wiwik Indrayanti 1, Suhariningsih 2, Masruchin Ruba’I 3, Nurini Aprilianda4 1 Doctorate Program at Brawijaya University, Malang, as well as a lecturer at the Faculty of Law at Merdeka University, Malang.
2 Law Faculty, Brawijaya University 3 Law Faculty, Brawijaya University 4 Law Faculty, Brawijaya University E-mail: astinaagra@yahoo.com Submitted : 09-03-2017 | Accepted: 29-03-2017 ABSTRACT Legal void of interfaith marriages in Indonesia to date has not offered legal certainty and sense of fairness to couples of differing religions.
Particularly, their rights to form a family and to freedom of religion are unprotected; whereas those rights are guaranteed by the 1945 Constitution of the Republic of Indonesia.
Furthermore, the Constitutional Court’s ruling had rejected Judicial Review on Article 2 section 1 of Law No.
1 of 1974 against the 1945 Constitution of the Republic of Indonesia.
The rejection was based on the judge’s interpretation of article 2 section 1, that married couples should have same faith.
This articles seeks to analyze the reasons behind the consideration in legalize the interfaith marriage.
It analyzes whether the principle of interfaith marriage contradict the principles contained in the Constitution.
This article argued that as it was stated that the constitutional rights of marriage entailed the obligation to respect the constitutional rights of other people and thus to avoid any conflicts in the implementation of those constitutional rights, it is necessary to have a regulation on the implementation of constitutional rights conducted by the state.
It is further submitted that without legalizing interfaith marriage, there will be children status issue and heritage issues in the future.
Thus, it is argued that the principle of interfaith marriage does not contradict the principles contained in the constitution with regard to the rights to form a family and to freedom of religion.
Keywords: Juridical implication, legal norm void, interfaith marriage I.
INTRODUCTION Legal norm void in Law No.
1 of 1974 on Marriage caused interfaith couples do not get protection and justice.
Meanwhile, there is an increase in interfaith marriages carried out by Indonesians.
The most recent data showed that in 2011 the number of interfaith marriages had reached 229 couples, and in 2004-2012 the number recorded had reached 1,109 couples: the highest number of interfaith couples was between Muslims and (Protestant) Christians, followed by Muslims and Catholics, after that Muslims and Hindus, and then Muslims and Buddhists.
The smallest were marriages Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 130 between Buddhists and Christians.1 In addition, the Central Organization of the Study of Religion and Peace, led by Nurcholish Achmad, until June 2015, had married off at least 238 interfaith couples throughout Indonesia.2 Due to the legal void, there have been several ways which interfaith couples may take in order to marry: (1) performing the marriage abroad and having the marriage registered upon returning to Indonesia; (2) requesting a validation from the court; (3) performing the marriage according to each of their religions; (4) temporary subjection to the religious decrees of one of the partners.3 In reality, these ways are not as easy as expected, in particular when applying for a court’s validation.
Furthermore, well off couples might perform marriages abroad and those who are not may request a court’s validation.
Yet in reality most couples choose number 4 above, i.e.
one of the couple subjects themselves to their partner’s religion and after the marriage certificate is obtained they continue to practice their original faith.
This is often done because it is deemed more practical than other ways 1 Since 2004-2011 there had been 1,109 interfaith marriages, See also www.hidayatulalah.com.
Accessed on January 30, 2017.
2 Talk with Nurcholish Achmad and Interfaith Marriages, see further www.bbc.com.
accessed on January 30, 2017. such as applying for a court validation which is currently even made more difficult to do.
Performing marriage abroad is more frequently carried out by middleclass couples, with Singapore and Australia the most popular places to perform these marriages.
Whereas interfaith marriages are currently evenly distributed at all economic levels so that couples who wish to marry in Indonesia are often obstructed, especially when one of them is a Muslim.
In reality, there is one more way that interfaith couples can choose in order to have their marriages registered, i.e.
by applying for a court validation.
However, among the judges themselves there is no agreement regarding the interpretation of Article 1 section 2 of Marriage Law, as evidenced by the rulings in which some approved the marriage and some did not.
Furthermore, after the Constitutional Court denied the plea for Judicial Review of Article 2 section 1 of Marriage Law by the 1945 Constitution of the Republic of Indonesia, interfaith couples were subsequently denied their rights, such as the right to freedom of religion and to form a family; whereas these are the 3 Wahyono Darmabrata.
A Review of Law No.
1 of 1974 on Marriage with the Law Itself and Its Regulatory Implementations, (Jakarta: CV.
Gitama Jaya, 2003).
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 131 fundamental rights guaranteed by the Constitution.
Based on this description, the current study discusses the following: what are the rationale for the considerations made by district court judges toward requests for marriage ruling, and what is the rationale for Constitutional Court judges’ denial of Judicial Review of Article 2 section 1 of Marriage Law by the 1945 Constitution of the Republic of Indonesia?
Does the principle of interfaith marriage contradict the principles contained in the Constitution?
Moreover, what are the juridical implications of legal norm void for interfaith marriage in Indonesia?
II.
LEGAL MATERIALS AND METHODS The legal materials of this paper are primary and secondary legal materials.
Using the statute and conceptual approaches, this paper is divided into several parts.
The introduction employs the background of interfaith married problems.
It elaborates the actual conditions of interfaith marriage in Indonesia and what future problems posed if interfaith marriage is considered illegal.
The following part analyzes the constitution of Indonesia, UUD NRI 1945, which guarantee the freedom of religion and the right to build a family in Indonesia.
Primary legal materials used in this paper include Indonesian Constitution, UU NRI 1945, Indonesian Act number 1 Year 1974 on Marriage.
In addition to this, various Court Decisions on interfaith marriage in Indonesia are also analyzed, which include Bogor Court Decision Number 527/Pdt/P/2009/PN.Bgr and Denpasar Distric Court Decision Number 136/Pdt.P/2009/PN.DPS.
Furthermore, Indonesian Constitutional Court Decisison Number 68/PUU/XII/2014, dated June 18, 2015 on the Judicial Review on Article 2 Law Number.
1 of 1974 on Marriage against the 1945 Constitution of the Republic of Indonesia is also examined.
III.
RESULT AND DISCUSSION 1.
The rationale for the considerations of judges that approved interfaith marriages In Decision No.
136/Pdt.P/2009/PN.DPS of August 19, 2009, on behalf of Ratu Ayu Isyana Bagoes, the judge’s consideration was as follows: Considering that based on Article 1 of Law No.
1 of 1974 on Marriage, it is stated that “Marriage is a physical and spiritual bond between a man and a woman as husband and wife with the intention of forming a happy and everlasting family (household) founded in the belief in the one Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 132 and only God”.
Furthermore, Article 2 section 1 states that “A marriage is legal if it is done according to the decrees of each person’s religion and faith”; Considering that based on documentary evidences and statements of witnesses presented at the trial, both the Petitioner and George Albert Tulaar have fulfilled the terms of marriage as stipulated in Article 6, and there are no obstructions to performing the marriage as stipulated in Article 8 of Marriage Law; Considering that since both the Petitioner and their would-be spouse, George Albert Tulaar, have been steadfastly and persistently holding on to their own religions, the two are subsequently unable to perform a marriage that is decided by law as stipulated in Article 2 section 1 of Marriage Law, necessitating a Marriage Ruling from the District Court; Considering that based on Article 35a, and its explanations, of Law No.
23 of 2006 on Civil Affairs, what is meant by a marriage decided by the court is that which is performed between individuals with different religious faiths; therefore, in order for the marriage between the Petitioner and George Albert Tulaar to be deemed valid and able to be recorded in civil marriage register, the Petitioner has made a petition for a Marriage Ruling from the District Court of Denpasar; Considering the evidences and the above considerations, the District Court of Denpasar deems the petition to be sufficiently grounded to be granted in its entirety; Considering that the petition may be granted in its entirety, then the Petitioner should pay the cost of application; Given the articles in Law No.
1 of 1974 on Marriage, and Article 34 and Article 35 point a of Law No.
23 of 2006 on Civil Affairs, as well as articles in other legislations relating to this petition case, it is DECIDED that the petition is granted in its entirety.
Decision No.
527/Pdt/P/2009/PN.Bgr was issued by Bogor District Court that examined and adjudicated civil affairs cases.
The judge’s consideration in this case is: Considering that, based on the above facts, the arguments made by the Petitioner as set forth in point 1 of the claims have been proven true by the law; Considering that, by claim 2 which states that Petitioner I and Petitioner II have never performed religious marriage, the claim contradicts the reality of law above as Petitioner II has had a Catholic marriage before and therefore the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 133 Petitioners’ argument as set forth in claim 2 is not attested by law; Considering that the principal purpose for the petition is that the Petitioners, who are both religious, may marry and register their marriage at the Civil Registry Office; of Bogor City; Considering that before further consideration of the principal purpose of the Petitioners’ petition above, the judge will first have to consider the jurisdiction of the court, namely the authority of the District Court to examine and decide on the petition; Considering that the purpose of the Petitioners’ is that their marriage may be registered at Bogor Civil Registry Office; Considering that a marriage between individuals of differing faiths is only regulated in the explanation of Article 35 point a of Law No.
23 of 2006 on Civil Affairs, wherein the explanation of point a it is asserted that “what is meant by a marriage decided by the court is a marriage between individuals of different faiths”.
The provision is essentially one which allows for the registration of a marriage between two individuals of differing faiths following a court validation regarding it, whereas the marriage process as stipulated in Law No.
1 of 1974 and Government Regulation No.
9 of 1975 is not further regulated in the provision, therefore issues relating to the marriage process itself, such as the validity of the marriage, the terms of marriage, prohibition of marriage, and the implementation of marriage process, are still governed by the provisions set forth in Law No.
1 of 1974 and Government Regulation No.
9 of 1975; Considering that the purpose of the Petitioners’ petition is to have their marriage registered at Bogor Civil Registry Office and based on the statements of witnesses which are principally about the Petitioners’ effort to register the marriage at Bogor Civil Registry Office, and that the domicile of the Petitioners is in the jurisdiction of Bogor District Court, therefore in this case it is within the authority of Bogor District Court to accept, examine and adjudicate, and to decide the Petitioners’ petition; Considering that based on the Petitioners’ information, written evidence marked P-1 to written evidence P-5, supported by the testimonies of first witness WARSA and second witness TATANG bin IMU, and those of first expert witness ASEP LUKMAN HAKIM, S.Ag from Bogor Office of Religious Affairs and second expert witness YOHANES DRIYANTO from the Diocese of Bogor, in the examination of the petition several legal facts have been obtained as follows: Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 134 a.
That Petitioner I is of Islamic faith while Petitioner II is of Catholic faith; b.
That Petitioner I has never had religious marriage before, whereas Petitioner II has had a Catholic marriage and has divorced their husband and this exhusband is still alive; c. That according to Islamic beliefs a marriage between a Muslim and a NonMuslim is prohibited; and that according to the views of Indonesian Ulema Council (MUI) a marriage should be based on the Quran and the Hadith, and therefore a Muslim should not marry a Non-Muslim; d. That the Office of Religious Affairs (KUA) only register Islamic marriages; e. That according to Catholic beliefs married individuals who divorced their partners and then seek to remarry have transgressed against their Catholic faith and should be punished with a spiritual sanction in the form of, among others, denial of communion and denial of sacraments after death; f. That concerning interfaith marriages, the Catholic Church may bless the marriage of a Catholic who has never had a Catholic marriage before, in which the marriage is not regarded as a sacrament but it is still valid according to the Church; g. That when related to the fact that the Petitioner had been married once, if the ex-spouse is still alive but they are already divorced the second marriage will not be blessed, but if the ex-spouse has passed away the remaining individual may remarry and be blessed; Considering that based on the facts above the judge opines that even though the wish of the Petitioners to marry is essentially not prohibited by Law No.
1 of 1974 and that the establishment of a household through marriage is the fundamental right of the Petitioners as citizens of the state, and maintaining their faiths is their fundamental right as well, and even though the provisions in Article 2 (1) of Law No.
1 of 1974 on the validity of a marriage when performed according to the religious beliefs of a couple state that the validity does not constitute an obstacle for interfaith couples to enter into marriage, considering that the provision is essentially in contact with the procession or the procedure of performing a marriage according to the couple’s religious beliefs which in casu cannot be done by Petitioners of differing faiths; Considering that, based on the explication above and related to the testimonies of expert witnesses which basically do not allow any religious marriage between the Petitioners, the following should be taken into account: Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 135 a.
The marital status of the Petitioners, in particular Petitioner II who had been married before and whose first marriage was blessed in the church, and who even though had divorced but the ex-husband is still alive; b.
The Catholic beliefs of Petitioner II; Having regarded the articles of the legislations concerned as well as the legal regulations pertaining to the petition, the judge therefore decides to REFUSE the Petitioners’ petition.
2.
The rationale for the consideration made by the Constitutional Court judge No.
68/PUU/XII/2014, dated June 18, 2015, on the Judicial Review on Article 2 Law No.
1 of 1974 on Marriage against the 1945 Constitution of the Republic of Indonesia Presented below are the considerations submitted by the judge at the Constitutional Court and the writers’ own arguments: That the core of the petition made by the Petitioners is a review on the constitutionality of Article 2 section 1 of Law 1/74 against Article 27 section 1, Article 28B section 1, Article 28D section 1, Article 28E sections 1 and 2, Article 28I sections 1 and 2, Article 28J section 2, and Article 29 section 2 of the 1945 Constitution.
According to the Petitioners, the norm contained in Article 2 section 1 of Law 1/1974 opens the door to interpretations and restrictions so that it cannot guarantee the right to a fair legal certainty as well as being contrary to the provisions of liberty as mandated by the 1945 Constitution; 1) That the fourth paragraph of the Preamble of the 1945 Constitution states, ‘… which is formed in a structure of the Republic of Indonesia based on the sovereignty of the people and belief in the one and only God’.
That the state ideology of Indonesia, belief in the one and only God, is also asserted in Article 29 section 1 of the 1945 Constitution.
The principle of Godhead mandated by the 1945 Constitution is an embodiment of religious admission.
As a nation that is based on Godhead, any action or deed conducted by the citizens is closely tied to religion.
One of those actions or deeds which are closely related to the state is marriage.
Marriage is one of the manifestations of the citizens’ constitutional rights which must be respected and protected by everyone within an orderly structure of society, nation and state.
The constitutional right of marriage entails an obligation to value other people’s constitutional rights.
Therefore, to avoid any conflict Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 136 in the implementation of that constitutional right, it is necessary for the state to regulate it; In reality, in interfaith marriages there are no conflicts with other people’s constitutional rights since the principle held by the couple is to fulfill and to respect each one’s religion and beliefs, so they are not in conflict.
2) That the Petitioners argue that their constitutional right to marry and form a family has been violated by the provisions of Article 2 section 1 of Law 1/1974.
According to the petitioners, their right to form a family through a valid marriage is guaranteed by Article 28B section 1 of the 1945 Constitution so the existence of Article 2 section 1 of Law 1/1974 is regarded as restricting the rights of the citizen to perform such marriage.
According to the Court, however, the rights and freedom of every citizen should be subject to restrictions set forth by the law with the sole purpose of securing due recognition and respect for the rights and freedom of others as well as to meet the demands for fairness in accordance with moral judgment and religious values, with public security and order in a democratic society {cf.
Article 28J 1945 Constitution}.
In line with the state philosophical foundations, Pancasila and the 1945 Constitution, according to the Court, Law 1/1974 has been able to embody the principles contained in Pancasila and the 1945 Constitution as well as been able to accommodate all realities of social living; In relation with interfaith marriage: the nature of marriage in general has been set forth in the Constitution, within the principle that states that the rights to freedom of religion and to form a family are fundamental rights in which the state has no right to intervene, unless in its implementation public order and the rights of others are violated.
In the case of interfaith marriage, no public order or the rights of others are violated since it is the rights of the marrying couple: made by mutual agreement between adults.
When the principle of human rights is examined, it is clear that the two rights are universal rights.
So initially the provisions of Article 2 (1) were meant to ensure legal certainty for citizens of Indonesia but in its development it is yet to be able to accommodate the aspirations or social needs of society, especially interfaith marriage.
3) That the Petitioners argue that their constitutional right has been violated since Article 2 (1) of Law 1/1974 “forces” every citizen to obey the laws of each one’s religion and beliefs in the area of marriage.
According to the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 137 Court, marriage is one of the problem areas regulated in the order of law in Indonesia.
Every conduct and behavior of the citizen, including matters relating to marriage, must be subject to law and must not contradict or violate it.
Legislation regarding marriage was formed to regulate and protect the rights and obligations of citizens in relation to marriage.
According to Law 1/1974 marriage is defined as the physical and spiritual relationship that exists between a man and a woman who are bound by marriage ties which confirms their status as husband and wife.
Marriage is intended to form a happy and longlasting family or household based on the trust in God.
A marriage is considered valid if performed in accordance with the laws of each partner’s religious beliefs and is registered according to the legislation.
As a physical bond, a marriage is a legal relationship between a man and a woman in order to live together as husband and wife.
The physical bond is a formal relationship which truly exists for those who bind themselves to each other as well as for others or the society, whereas as a spiritual bond, a marriage is a soul affinity woven together due to mutual willingness and sincerity between a man and a woman to live together as husband and wife.
The physical and spiritual bond within a marriage is also a strong assertion that a man and a woman wish to form a happy and long-lasting family (household) based on the trust in God; The comprehension and interpretation of the concept of spiritual bond by the Constitutional Court judge as a bond between a man and a woman who are mutually willing to be husband and wife is still open for debate, namely the mutual willingness of interfaith couples to pursue the purpose of marriage, which is to form a happy and longlasting family based on the trust in God.
The points mentioned above are acceptable as they form the same bond.
However, spiritual bond also includes two souls of differing foundation resulting in the desires of the couple to keep each one’s religious beliefs.
And the desire is manifested in an agreement between the couple itself to be carried out within the marriage.
That desire has not been accommodated in Law No.
1 of 1974 on Marriage.
4) That the Petitioners argue that their rights to practice religion and to freedom of religion have been violated by the enactment of Article 2 section 1 of Law 1/1974 since the article a quo gives legitimacy to the state to confound the administration and implementation of religion as well as to dictate religious Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 138 interpretations in the area of marriage.
According to the Court, in a life which is based on Pancasila and the 1945 Constitution, religion is the foundation and the state has an interest in marriage.
Religion is the foundation of the community of individuals which becomes the vehicle for the individuals to live together in their relationship with God and the community has the responsibility to realize the will of God to continue and ensure the survival of mankind.
The state also plays a role in providing a guidance to ensure the legal certainty of living together in a marriage bond.
In particular, the state plays the role of protecting those who wish to form a family and continue their line through a valid marriage, which is the embodiment and insurance of human survival.
Marriage should not be seen merely from the spiritual and social aspects.
Religion establishes the validity of a marriage, whereas the law establishes the administrative validity conducted by the state; In principle, the state also regulates marriage to ensure the legal certainty of citizens in the area of marriage, thus providing legal protection.
The state should also protect its citizens in the area of interfaith marriage, following some principles which are based on the perspectives of Human Rights (HR), i.e.
the right to freedom of religion and the right to form a family are fundamental rights whose implementation cannot be reduced even by the state.
Protection for both rights is guaranteed by the Constitution.
5) Considering all legal considerations above, the Court found the petition to be unreasonable under the law.
RULING: It is decided to reject the petition in its entirety.
The court ruling on case number 136/Pdt.P/2009/PN.DPS dated August 19, 2009, given to the Hindu petitioner Ratu Ayu Isyana Bagoes and the Christian petitioner George Albert Tulaar, shows that the judge’s considerations did not seem to pay attention to the religious aspect of each petitioner.
Upon investigation, Hindu position does not allow interfaith marriage; this is unlike the (Protestant) Christian position that does not preclude interfaith marriage.
The ruling would likely be different if one of the petitioners had been a Muslim, especially if they had been a woman.
According to Hindu faith, particularly the Balinese version with its patrilineal kinship system, whenever a Balinese woman marries a non-Hindu she is encouraged to embrace her husband’s faith.
Religious aspect for a Balinese Hindu woman is therefore not as emphasized as it Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 139 is for a man.
This is because the status of a father according to the customary law is a purusa, meaning that it is the most important in the personal and social life of a Balinese and which should be given priority over that of the mother or of her family.
The status and position of women in a society which is governed by religious values and kinship values, particularly patrilineal values, have always been discriminated against; compared to men, women are viewed as second-class citizens so that even their right to form a family with a person of different faith is regulated by a ban.
Whereas the rejection made by the judge in court ruling on case number 527/Pdt/P/2009/PN.Bgr dated July 16, 2009, filed by the Muslim petitioner Saepudin and the Catholic petitioner F. Lily Elisa, shows that the judge in their legal considerations respected the petitioners’ religious affiliations.
However, the judge did not explain clearly what was contained in the petitioners’ religious teachings, particularly in petitioner I’s Islamic religion.
Yet the primary measures employed by the judge are that a marriage between a Muslim and a non-Muslim is not allowed and that according to views of Indonesian Ulema Council (MUI) a marriage must always be based on the Quran and the Hadith.
While a proposition that in Islamic teaching a Muslim man is allowed to marry a Jewish or a Christian woman as long as the woman keeps her honor and never harms her husband and children’s religion (al-Ma’idah: 5), was not used as a reference.
On the other hand, the judge also touched upon the Catholic faith of petitioner II.
According to Catholic teaching, couples who divorce their spouses and then remarry have transgressed against their faith.
In this case, Petitioner II had been married before as a Catholic but then had a divorce; therefore, if she wished to remarry her second marriage could never be blessed.
Due to the judge’s intention to respect the petitioners’ religious affiliations, the petition was deemed to have no legal basis and thus could not be granted.
The judge’s ruling which rejected an interfaith marriage petition made by a Muslim man and a Catholic woman is based more on the provisions of the religion of each interfaith marriage petitioner.
In this case, the woman was a divorcee and legally her divorce status was legitimate.
However, had she practiced her religious interpretations she would have not had a divorce.
The moment she decided to remarry the judge should have deemed her to be outside of Catholic religious Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 140 norms.
The court ruling which rejected this case had a significant impact on the interfaith couple as it closed their chance to legalize their marriage; wherein petitioning the court to obtain a validation should have made it easier for the couple.
It is back again to the judge’s culture which was strong enough to affect their reason for rejecting, coupled with the most prevalent values in society that affect the society’s perception of interfaith marriage.
One cultural aspect generates implications due to the dominant positivistic way of thinking among judges, i.e.
many of the decisions and rulings made by these judges do not reflect substantial justice.
In fact, a person involved in a case/dispute might find themselves be disenfranchised.
As stated by Achmad Ali: “… As a result of the use of rigid positivistic point-of-view in interpreting various laws, the decisions made by judges often failed to produce substantial justice and merely produced procedural justice.”4 We understand judges as people who live in the midst of the reality of everyday life; they are also open to and are affected by their environments.
Regarding the latter 4 Achmad Ali.
From Formal Legalistic to Delegalization: The Face of Law in the Reformation Era, (Bandung: Citra Aditya Bhakti, 2000), 35-7.
5 On Judges who Decide the Cases in Prof. Dr. Satjipto Rahardjo, SH, Compendium of (environment factor), Robert B. Seidman stated that all legal actors were affected by “personal and societal factors”.5 Furthermore, according to Schubert, the attitude of the judge in relation to decision making is an important factor as well.
Differences of decision are not due to differences in the reasoning, but in the positions taken during making the decisions.
Since personality factor had become essential, Schubert suggested that the reasons behind a judge’s decision to trust something and reject another were worth exploring.
This is because a judge’s trust depends on their affiliation to various things such as politics, religion, ethnicity, education, economy, certain ideology, prejudge career, etc.6 In addition, the possible reason of a judge who refused to give a validation for interfaith couples is that they might not know or not understand the stance of Article 35 of Law No.
24 of 2013 (previously Law No.
23 of 2006) on Civil Affairs, where in the explanation of Civil Affairs Law, point 34a, it is asserted that “the definition of a marriage validated by the court is a marriage between persons of Writings: A Textual Reading for Students of the Law Doctorate Program of UNDIP (Semarang: UNDIP, 2009), 3.
6 Satjipto Rahardjo, Legal Studies (Bandung: Citra Aditya Bakti, 2006).
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 141 differing faiths”.
This means that it is the duty of Civil Registry to register marriages validated by the court, i.e.
interfaith marriages.
Such unfamiliarity, coupled with the judge’s legal culture, will result in interfaith marriages be unprotected.
Based on the analysis relating to judges’ rulings, whether it is a rejection or a granting, it turns out the ruling has a direct impact on interfaith couples in Indonesia, particularly with judges who refused to give a validation the couples are subsequently unable to register their marriages at the Civil Registry Office.
It is the duty of the state to provide legal protection in the area of mixed marriages, in particular interfaith marriages, due to the phenomenon where a state apparatus, in this case the judge, either refuses to validate the marriage due to the interpretation employed or grants a validation.
In fact, according to a marriage registrar at the Civil Registry there was an indication that a court made it difficult for interfaith couples to obtain a validation.
The varying opinions and interpretations were due to the Marriage Law, which as a product of the New Order is quite problematic since it does not regulate mixed marriages, in particular interfaith marriages conducted in Indonesia (internal).
What happens in Indonesia is perceptual differences in making meaning of Article 2 section 1, resulting in the lack of protection of the right to form a family for interfaith couples hoping to marry in Indonesia.
The phrase “to protect the whole nation and homeland of Indonesia” transcribed in the fourth paragraph of the 1945 Constitution of the Republic of Indonesia reveals that the State, in this case represented by the Government, is obliged to provide protection not only physically but also non-physically for every Indonesian citizen.
The provisions of Article 29 section 2 of the 1945 Constitution oblige the state to guarantee the freedom of every citizen to profess his or her religion and to worship according to his or her religion.
This does not mean that the State should regulate every aspect of a person’s religious affairs.
From the perspective of the State, every citizen is its people and as such is entitled to legal protection by the State and must be protected without discriminating whether said person is obedient, less obedient, or disobedient to their religion.
On the above basis the principle of interfaith marriage is therefore in accordance with the principles contained in the Constitution.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 142 IV.
CONCLUSION From the discussions, it is submitted that the reasons behind the judge decision is that there are still multiple interpretations of Article 2 section 1 of Law No.
1 of 1974 on Marriage and this way made judges reluctant to make a distinct decision on interfaith marriage.
Furthermore, it is also submitted that the interfaith marriage does not contradict the principles contained in the constitution with regard to the rights to form a family and to freedom of religion.
It is argued that while interfaith marriage is considered illegal in Indonesia, such condition raised future issues such as the issues of the status of woman involved in interfaith marriage and the heritage issues.
Thus, it is submitted that interfaith marriage should be legalized in Indonesia.
REFERENCES Journals Danu Aris Setiyanto, ‘Interfaith Marriage after Constitutional Court’s Numner XII/2014 On Human Rights Perspective’, v.19, n.1, 2016 , Syariah Law Journal.
Faiq Tobroni , ‘Freedom of Ijtihad on Interfaith Marriage After Constitutional Court’s Decision’, v.12, n.3, 2015, Constitutional Law Review Leeman , Lee B, ‘Interfaith Marriage in Islam; An examination of the Legal Theory Behind the Traditional and Reformist Position’, v. 84, n.2, Indiana Law Journal MD Zahidul Islam, ‘ Mariage Islam and Present Situation’, v.2, n.1, 2014, Global Journal of Politics and Law Research Books Ali, Achmad.
2000.
From Legalistic Formal to Delegalization: The Face of Law in the Reformation Era.
Bandung: Citra Aditya Bakti.
Darmabrata, Wahyono.
(2003) Review of Law No.
1 of 1974 on Marriage, with the Law and Its Implementation Regulations.
Jakarta: CV Gitama Jaya.
Rahardjo, Satjipto.
(2006) Legal Studies (6th ed.).
Bandung: Citra Aditya Bakti.
---------------------.
(2009) On Judges Who Decides the Cases.
In Compendium of the Writings by Prof. Dr. Satjipto Rahardjo: A Textual Reading for Students of the Law Doctorate Program of UNDIP.
Semarang: UNDIP.
Acts Law No.
1 of 1974 on Marriage Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 143 Law No.
24 of 2013 on Civil Affairs.
Cases Constitutional Court judgement No.
68/PUU/XII/2014, dated June 18, 2015, on the Judicial Review on Article 2 Law No.
1 of 1974 on Marriage against the 1945 Constitution of the Republic of Indonesia Decision No.
527/Pdt/P/2009/PN.Bgr was issued by Bogor District Court .
Decision No.
136/Pdt.P/2009/PN.DPS of August 19, 2009 was issued By Denpasar Court Internet www.hidayatulalah.com.
Since 2004-2011 there had been 1,109 interfaith marriages.
March 31, 2012.
Retrieved on January 30, 2017. www.bbc.com.
June 2015 Talk with Nurcholish Achmad and Interfaith Marriages.
Retrieved on January 30, 2017.
Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 221 ROHINGYA MINORITY IN MYANMAR BETWEEN THE RELIGIOUS PERSECUTION AND THE REALITY OF CONSTITUTIONAL PROTECTION Bakhouya Driss1 ABSTRACT The government's performance in the State of Myanmar raises questions about the reality of its position on what is happening to the range of its citizens who are Muslims Alrohengjian, it bear full responsibility for the protection and preservation of their rights.
Despite the government's signing of Myanmar on the international agreements and conventions on human rights, despite its stated commitment to the protection of human rights and the promotion of democracy and the rule of law; the government has not taken any real action to protect the Rohingyas and address violence or stop racist policy of ethnic cleansing, which govern the Muslims of Rohingya by Buddhist extremists.
We will discuss in this paper what is really happening to the Muslims Alrohengjian in Myanmar, especially in the recent wave of persecution and ethnic cleansing against them, and we are exposed to historical backgrounds of these crimes and the role of internal constitutional provisions and the provisions of international conventions on the protection of this vulnerable minority.
Key words: Rohingya, a minority Muslim ethnic cleansing words, human rights.
I.
INTRODUCTION 1 Comes the major events leads to forget the people others, especially the winds of change that swept some Arab countries as "Tunisia, Egypt, Yemen, Syria and Libya," then the conflict between the United States and its Western allies against Russia in Ukraine, and most recently an international coalition that the United States-led war on terror representatives in the 1 Faculty of Law and Political Science, University of Adrar, Algeria (Aljazair) E-mail Address : bakhouya1980@yahoo.com 2 Asseburg Muriel, protest, revolt and regime change in the arab world, actors, challenges, organization of the Islamic State (ISIS) in Iraq and Syria, has taken the attention of people around the world, including the Arabs, under Ancaal people major events taking place other events where a lot of vulnerable people lost in other parts of the world, especially of minorities2.
For example, no one is talking about the tragedy of the Muslim "Rohingya" in the Arakan state of implications and policy options, stiftung wissenschaft and politik German Institute for international and security affairs, february 2012, Berlin.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 222 Myanmar (formerly Burma)3, where ethnic cleansing against them by Buddhists extremists process of being supported by the Myanmar government for more than two years4.
The Muslim "Rohingya" crisis in Myanmar is not new, but their frequency has escalated due to the killing of an extremist Buddhist groups of ten of the advocates of the Muslim Rohingyas in the month of June in 2012 when they returned from Umrah pilgrimage, where these groups beat preachers ugliest pictures even claimed lives, after he accused unjustly of being behind the killing of a Buddhist girl after raping her5.
Which led to the outbreak of fullscale war on Alrohengjian in Arakan province by armed Buddhist groups, practicing all acts of murder, torture, burning and demolishing houses Rohingya Muslims.
This incident sparked the Arakan province a reality predominantly Muslim western Myanmar, which has not slowed 3 At the time, Myanmar was called Burma.
The military regime, the State Law and Order Restoration Council, renamed Burma “Myanmar” in 1989.
Banyan, “What’s In A Name?
Myanmar,” The Economist (May 21, 2013), http://www.economist.com/blogs/banyan/2013/ 05/what-s-name-myanmar.
4 Ahmad Fikri, the secrets of Myanmar, Why burn thousands of Muslims there ?, January 18, 2014, news agency Arakan.
(ANA).
days; what is faced by the Muslims of Rohingya in Myanmar repression, killing and displacing and starving spanning more than six decades, the Buddhists tried with all their might to undermine the rights of Muslims Rohingya authority there, starting from regarded as illegal immigrants, and the exercise of economic pressure on them, through their expulsion from government jobs, economically, commercially and surround them, and try to erase the Islamic identity through the demolition of mosques and historical schools of Islamic monuments, and prevent the restoration and to prevent the development of Islamic schools and the lack of certificates issued by authentication, forcing them to change Islamic names, and other forms of oppression, ethnic cleansing and displacement6.
It is behind the violence and ethnic cleansing practiced during the past two years against Alrohengjih 5 Fisher Jonah, religious tensions raised by a Buddhist monk anti-Islam in Burma, BBC Arabic, August 30, 2013.
6 Dean Nelson, “Rohingya Campaigners Accuse Burma of Failing to Stop Deaths,” The Telegraph (Oct. 26, 2012),http://www.telegraph.co.uk/news/worldne ws/asia/burmamyanmar/9636161/Rohingyacampaignersaccuse-Burma-of-failing-to-stopdeaths.html.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 223 minority in Myanmar, a group of Buddhist monks radicals grouped under the Movement carrying No.
(969), the figure who became alarming and spread terror into the hearts of Muslims oppressed in Myanmar, because it holds the smell of treachery and blood and rape of women and burning neighborhoods7, it is the figure that represents the name of the organization, which has been unable to put any country in the list of terrorist organizations in the world, perhaps only one reason that the victims are Muslims!8.
The Movement (969) and its leader, Buddhist monk extreme Ashin Wirathu primarily responsible for raising speech of hatred and enmity unjustified for the Muslims of Rohingya, an ethnic Buddhist religious organization, aimed at stopping the spread of Islam and fight and make Myanmar a kiss of Buddhists in the world, and calls for Buddhism Identity Protection in Buddhist countries9.
Although there are more than 135 ethnic groups in the State of Myanmar10, but the Movement (969) in its call to 7 kuok Lynn, promoting peace in Myanmar, CSIS ?
Center for strategic and international studies, Washington may 2014, p.13.
8 Yegar Moshe, The Muslims of Burma A Study of a Minority Group, Sudasien-Institut, Heidelberg university, p 71. cleanse the Myanmar ethnic cleansing belong to these ethnic advocacy Alrohengjih, which is the only Muslim in Myanmar ethnic, whereupon the religious and nationalist nerve to deploy between the Buddhist majority, and is working to reduce the number of displaced Muslims and Muslim-majority Arakan province, through the use of violence and restrictions on them in every aspect of life, making the "United Nations" minority Alrohengjih considered one of the most persecuted minorities in the world.
This Movement has become the (969) symbol of the Buddhist group seeks to isolate and displacement of Muslims, who make up 15% at least of the population of Myanmar of about 60 million people, half the number of those Muslims living in the predominantly Muslim province of Arakan.
The violence against the Rohingya Muslims in Myanmar found all the justifications that legislate and covered by a lid of religion and holiness, so that Buddhist monks extremists of Movement (969) have played an 9 Ibid.
10 Smith Martin, Ethnic Groups in Burma Development, Democracy and Human Rights, A report by Anti-Slavery International, in collaboration with Annie Allsebrook No 8 in ASI's Human Rights Series.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 224 important role in the sectarian conflicts, when they said to people that violence is permissible11.
Buddhist monks extremists those with influence in Myanmar has contributed to the exacerbation of tension (old) between the two communities, "Buddhism" and "Muslim" since the outbreak of the final episode of violence between the two groups in mid-2012.
What is the truth of what is happening to Muslims Alrohengjian in Myanmar, especially in the ethnic cleansing against them?
And historical backgrounds of these crimes?
The role of internal constitutional provisions and the provisions of international conventions on the protection of this vulnerable minority?
And why we have not seen any international action against the government of Myanmar to repel the brutal steps in the right of this minority?.
This highlights the main questions that the study aims to answer them.
II.
METHODOLOGY For the treatment of the subject in a scientific manner accurate, we relied on the methodology lineup are: 1.
Analytical Approach: By analyzing the internal 11 Ibid constitutional provisions and the provisions of international conventions on the protection of minorities across the world.
2.
Historical method: It is required by the study to know the backgrounds Alroheengah persecuted minority in Myanmar, you can not figure out ways to protect this minority accurately without exposure to the causes of this oppression, this ethnic and religious liquidation.
3.
Approach Case Study: We have chosen Alroheengah minority model, due to the severity of the abuse and persecution suffered by the Muslim minority in Myanmar, because of the terrible silence of the international community about what is happening.
III.
RESULT AND DISCUSSION State "Myanmar" is located in the south-east of the continent of Asia, bordered on the north China, India, and South Bengal and the Gulf of Thailand, on the east by China, Laos, Thailand, and West Bengal, India, Bangladesh Bay, located Arakan province in the southBrawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 225 west Burma on the Bay of Bengal coast and the border strip with Bangladesh12 Land of Myanmar lies between ten circle north of the equator and twenty-eight in the north, with an estimated area of more than 261.000 square miles, with an estimated Arakan province area of nearly 20,000 square miles, and is separated from the rest of the land of Myanmar mountain range natural end is Arakan stretching from the Himalayas13.
In the year 1989 the Burmese government officially changed the state name of "Burma" to "Myanmar", the United Nations and recognized the name "Myanmar" five days after the announcement14, though, so the renaming is still different where, many countries still recognize the name of the state as "Field" including Australia, Canada, France, the United Kingdom, and the United States of America.
Many states as the "Myanmar", including Germany, India also recognizes, Japan, 12 Abdul Majeed Syed Bakar, Muslim minority in Asia, and Australia, the Muslim World League, p. 183.
13 Ghraib Mohammed, where are myanmar located?
What is the story of the burning of the Muslims there and causes ?, Masrawy, July 19, 2012.
14 Hassan Zkir Mohammed, the history of Muslims in Arakan Burma, Congress Net, 22/3/2013, http://www.almotamar.net/15707.htm, It has been viewed on : 10-07-2016.
Russia, and China, as well as the Association of Southeast Asian Nations15.
The number of Myanmar's population of about 60 million people, with an estimated percentage of Muslims, with 15% of the total population, half of them in Arakan province a Muslim majority16, reaching the percentage of Muslims in which more than 70% and the rest are Buddhists Almag (with Indian origin) and other denominations17.
Islam In Myanmar Between Religious Freedom And The Persecution Of Buddhism The assets of Myanmar Muslims returning to several different roots, such as Bengali, Arabs and Moors, Turks, Persians, Mongols and Pathans, and speak a language called (Rohingyas) a mixture of Arabic, Farsi, Urdu and Bengali18.
Myanmar and the capital city "Rangoon" The official language is the "Burmese".
Myanmar and was a part of 15 Ibid.
16 Rohingya were excluded from the United Nations-supported 2014 national census, so reliable data is not available.
17 May F. John & Thomas R. Brooke, Deciphering the Demography of Myanmar, Population Reference Bureau (Sept. 2014), http://www.prb.org/Publications/Articles/2014/ myanmar-demography.aspx.
18 Head Jonathan, the Muslims displaced and dispersed Myanmar and Arakan state news agency ANA, 5 March 2014.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 226 India that Britain has by announcing a separate British colony in 1937 until independence from the British Crown in 194819.
Islam was introduced to Burma (Myanmar) in the first century through the companion "Waqas Malik bin" may Allah be pleased with him.
As historians mention that Islam arrived via (Arakan) during the reign of the Abbasid Caliph "Haroon Rashid," in the eighth century by Arab traders, impressed the people of Myanmar, where they entered morality of Islam, and worked in agriculture in the beginning, and then dominated the trade20.
There are signs on the establishment of settlements in Arakan by the Arabs Fifty years after the advent of Islam, the beginning of the year 610.
Historians say that the Arab traders who were in close contact with the residents of Arakan in as early as the year 788, as was the Port (Rambe) south of Arakan a household name among Arab travelers by sea in the ancient times.
Historians also states that at the end of the third century, Islam had established in the hearts and minds of people between Africa and Asia, arrived 19 Ibid.
from the Atlantic coast to Bengal, and the growing number and influence of Muslims in Arakan to the extent that mode (Tramakhalh) and who chose the later name Islamist is (Suleyman Shah) in 1430 the foundation stone of the first Islamic state in Arakan, and he ruled for more than 350 years of Islamic rule independently, from 1430 to 1784, ruling nearly 48 king after Suleiman Shah respectively, of the most famous: Ali Khan, Mango Shah, Muhammad Shah, and the Shah Jalal, Hussain Shah and Salim Shah.
It is a fact that cherished by Muslims in Arakan that was required of the kings of Arakan before their term of sentence to obtain a certificate of virtue in the Islamic sciences, and also had them coins include Islamic slogans.
And demonstrating the feet and the presence of Muslims in this country are also some historical monuments such as mosques, schools, a mosque (Badr shrine) is very famous in (Okiab) capital of Arakan (and there are a number of mosques that name in coastal areas in India, Bangladesh, Myanmar, Thailand, Malaysia, etc.)
and a mosque (Cindy Khan), built in 1430, and the mosque (Court of Moses), built 20 Salah Hani, Muslims of Rohingya: The journey to escape from "death" to "death", Arakan News Agency (ANA), 20 February 2014.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 227 in 1258, and the mosque (Wali Khan) which was built in the fifteenth century In any case, it has over the Islamic presence in Burma (Myanmar) advanced period, Muslims was dominating the business and have a lot of agricultural land and buildings, especially in Myanmar and other major coastal cities, the capital, where they have between (60% to 70% ) of large real estate in the capital, Yangon.
Violations Against The Rohingya By "969 Movement " The reading of history suggests that the suffering of the Muslims of Rohingya in Myanmar began in 1784, when it occupied the Arakan province by the Buddhist King (Bodabaa) who annexation of the territory to Burma (now Myanmar), fearing the spread of Islam in the region, and continued Buddhist Burmese in the persecution of Rohingya Muslims and displacement21.
In 1824, Britain occupied the Myanmar (Burma), and annexed to the Government of British colonial India.
In 1937, Britain made Arakan independent colony for the British colonial 21 Bahar Abid, Racism to Rohingya in Burma, AYE CHAN’S “ENCLAVE” WITH “INFLUX VIRUSES” REVISITED, released on 27 december 2012.
22 Chan Aye, The Development of a Muslim Enclave in Arakan (Rakhine) State of Burma government of India like the rest of its colonies in the then Empire, named after the British government of Burma22.
Muslims in Arakan resisted British occupation of their country violently, making Britain she fears, began a campaign to get rid of the influence of the Muslim, Buddhist reneged to incite against Muslims and provided them with support and arms to arise among them enmity and fade unity23.
And it epitomized the plot in several aspects, including: 1. expelling Muslims from their jobs and bring Buddhist place.
2. confiscation of their property and distributed to the Buddhists.
3. involvement of Muslims, especially their leaders in prison or exile outside their home countries.
4.
Close institutes and schools of Islamic courts and detonated.
5. incite Buddhists to kill about 30 thousand Muslims in 1938 after they broke away from the British Field Management India.
(Myanmar), SOAS Bulletin of Burma Research, Vol.
3, No.
2, Autumn 2005, canda University of International Studies, p.403.
23 Ibid.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 228 6. gruesome massacre of Muslims in Arakan in 1942.
In World War II, when the coalition forces were defeated on the land of Arakan at the hands of the Japanese, leaving behind a weapon often took the Buddhists Almag that weapon, and instead to use it against the Japanese used it to make a brutal massacre against Muslims in 1942, lives claimed more than 100 thousand Muslims, mostly women and the elderly and children, and displaced hundreds of thousands outside the home, and the severity of cruelty and horror still Alroheenjeon especially the elderly remember the tragedies yet24.
In 1947, before the independence of Myanmar (Burma), a general conference in the city, "Peng Long" to prepare for the independence of the contract, it has been called all classes and ethnic groups except the Muslim Rohingyas to keep 24 Leider Jacques P., “Arakan Studies: Challenges and Contested Issues, mapping a field of historical and Cultural research, (an unpublished paper) “in Forgotten Kingdom of Arakan From Dhanyawadi to 1962, 2005, p.15.
them away from the course of events and determine their destiny25.
In 1947, the names of voters were registered for the first general election, a new Legislative Council elections in Myanmar (Burma), Arakan Muslims were prevented from voting on the pretext that they are citizens of suspects26.
On January 4, 1948 Myanmar won the Field of Independence, and the British colonized the annexation of the Muslim Arakan province officially to Myanmar under the agreement has between Britain and Myanmar, to give the Myanmar government the right to self-determination for the Rohingya after ten years, which was not given until today27.
The suffering of the Muslims of Arakan continued after the end of World War II and for Myanmar (Burma) gained independence in 1948, where Arakan remained part of the Union of Myanmar, and since then the Muslims of Rohingya subjected to processes persecution, killing and displacement of mass 25 Charney Michael, “Buddhism in Araka: Theories of Historiography of the Religious Basis of Ethnonyms,” 2005, p. 53.
26 Blum Franziska, In Their Own Voice “Democracy” as Perceived in Burma/Myanmar 1921 – 2010, Passau university, p. 39.
27 Ibid, 41.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 229 systematic, organized and subsidized by the state, embodied these violations and crimes in the: 1962: the army overthrew led by General "T-One" Buddhism property system, and the foundations of the system in the grip of a hardline army generals, was dominated by the Communists to power in Myanmar, Myanmar was currently a socialist state, was announced that Islam is the first enemy.
It was one of the first decisions the confiscation of more than 90% of the territory of Muslims and their property.
Currency withdrawn from circulation to the detriment of traders Muslims often, as has been the imposition of Buddhist culture, was deprived Alrohengji to acquire national citizenship of the people, and have been deprived of education, employment, travel, and imposed on them unemployment and isolation in the woods, and left them practicing living ways primitive, without give them official documents to prove their affiliation to Myanmar, and did not 28 Biver Emilie, Religious nationalism: Myanmar and the role of Buddhism in anti-Muslim narratives, An analysis of Myanmar’s ethnic conflicts through the lens of Buddhist nationalism, Master of Science in Global Studies, Department of Political Science, Lund University, 2014, p. 16. let them go, and with them acted as if they were the class of pariah groups.
In 1967, the communist government in Myanmar issued a decision to withdraw the citizenship of thousands of Muslims Arakan State, and, about (28) thousand Muslims to the border with neighboring Bangladesh28.
In 1974, the Myanmar government expels more than 200 Muslim family in Arakan to a remote island, in addition to the withdrawal of nationality from about (300) thousand Muslims and drive them out of state29.
1978 has a "Najamin" destructive military, which killed more than 10 thousands of Muslim Rohingya, offering more than 500 thousand Muslims Rohingyas evicted from their homes and deportation to Bangladesh borders, which led to the deaths of about 40 thousand of them in temporary shelters exile, mostly children and the elderly30.
In 1982 the Marxist government in Myanmar has issued a law to deprive the Muslim Rohingyas of citizenship and nationality rights Myanmar (Burmese) 29 Ibid, 17.
30 Human Rights Watch, All You Can Do is Pray, see above note 20, p. 142; Human Rights Watch, Crackdown on Burmese Muslims, see above note 55, p. 11.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 230 and considered them since that date immigrant Bangladeshis31.
In 1988, the evacuation of about 150 thousand Muslims from their homes in Arakan, in order to build villages and homes of Buddhists in the context of attempts to change the composition of the state's Demographic.
1991 was the expulsion of more than half a million Muslims in reprisal for their vote in favor of the opposition in the parliamentary elections held that year were canceled outcome, as the government withdraw the citizenship of hundreds of thousands of Muslims32.
In 2001, the beginning of the Organization of the wave of violence and murder against Muslims in all the cities of Myanmar, on the background of the events of September 11 in the United States, was seized Buddhists with the 31 U.N. Human Rights Council, U.N. Special Rapporteur on Burma, Tomas Ojea Quintana, Progress Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, U.N. Doc No.
A/HRC/13/48, paras.
87, 88 (Mar.
10, 2010), http://www2.ohchr.org/english/bodies/hrcouncil /docs/13session/A-HRC-13-48.pdf; Irish Centre, Crimes Against Humanity, see above note 17, p. 26; Fortify Rights, Interview #82, Penang, Malaysia (Sept. 2014); Fortify Rights, Interview #95, Sittwe, Rakhine State, Myanmar (Mar.
2015); Fortify Rights, Interview #98, Sittwe, Rakhine State, Myanmar (Mar.
2015).
32 Human Rights Watch, Burma: The Rohingya Muslims, see above note 18, p. 9.
33 Buncome Andrew, “Homeless and Helpless: The Rohingya Muslims of the Rakhine State,” The Independent (Dec. 5, 2012), support of the army on a lot of property and Muslim lands33.
The conditions of Muslims Alrohengjian did not change after the elections in Myanmar in November 2010, where the violations, ethnic cleansing and displacement of Muslims from Arakan continued, according to observers estimate for the suffering of Muslims in Myanmar, these practices have succeeded in the displacement of approximately (3) to (4) million Muslims even now, it resulted in hundreds of thousands of deaths34.
Constitutional Protection For Minorities And The Exclusion Of Rohingya Since the declaration of independence or Myanmar (Burma) in 1948, the Constitution did not recognize http://www.independent.co.uk/news/world/asia/ homeless-and-helpless-the-rohingya-muslimsof-rakhine-state-8386822.html.
34 The non-governmental organization Physicians for Human Rights reported that Bangladeshi security forces beat and forcibly expelled Rohingya refugees in 2010.
The government also blocked humanitarian aid to the 30,000 refugees in the Kutupalong refugee camp in Bangladesh and arrested any refugees who left the camp to seek food, effectively trapping them in the camps to die of starvation or illness.
Physicians for Human Rights, Stateless and Starving: Persecuted Rohingya Flee Burma and Starve in Bangladesh, pp.
9-11 (Mar.
2010), https:// s3.amazonaws.com/PHR_Reports/stateless-andstarving.pdf.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 231 the Muslims under the pretext that their ancestors were not indigenous people of the country35.
And since then has not been treated as citizens, where it was to prevent the people of the Rohingyas from employment in government or completing their university education36, and the military rulers who seized power in 1962, conducting ethnic cleansing against the Rohingya, were expelled to the State of Bangladesh at different intervals ranging from 150 .000 and a half million people37.
So inherited "(969) Movement" extremist Buddhist this bloody and long history of the practice of murder, persecution and exclusion and expulsion beyond the borders of the Muslims of Rohingya, was no surprise that the spread of violence and ethnic cleansing against the Muslims of Rohingya since mid-2012 until today, especially if there is every justification that legislate and covered by a lid holiness.
The establishment of the (969) Movement in 1999, by a group of 35 Constitution of the Union of Burma, Chapter II, para.
11(i) (1947) 36 Ibid.
37 Szep Jason & Andrew R.C.
Marshall, “Special ReportWitnesses Tell of Organized Killings of Myanmar Muslims,” Reuters (Nov. 12, 2012), http://in.reuters.com/article/2012/11/12/myanma r-fighting-muslims-rakhineidINDEE8AB00I20121112.
Buddhist monks extremists, led by the monk extreme "Kyaw Lwin," comes as an extension of the role of monks in Myanmar who have a long history of interfering in politics, as the culmination of the history of the State of Myanmar's record of persecution and massacres comes hideous Muslim minority38.
Who reads the history of the relationship between the Buddhist majority and the minority of the Muslims of Rohingya in Myanmar, is not surprised by the presence of an extremist religious organization nationalism as an " Movement (969)" lead the persecution, murder and mass displacement, systematic and organization-backed by the state against the Muslims of Rohingya operations.
In this regard, "Michael Grayson39 says: "Monks Buddhists in Myanmar may not begin the violence, but they rode the wave and began to incite more violence. "
Originated Movement (969) in 1999 by a group of Buddhist monks 38 Crisis Group interviews, shop owners and taxi drivers displaying 969 stickers, Yangon and Mandalay, throughout 2013.
39 A professor of religious studies, and co-editor of the study, entitled "Buddhist wars," a study released in 2010 looking at the violent side of Buddhism in Southeast Asia, and how they used the Buddhist organizations there are religious images and fiery speeches.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 232 extremists headed monk extreme "Kyaw Lwin," and designed the logo Asin Sdama in the city "Mulamaan", located about 300 kilometers southeast of Yangon in Shan area, a multicultural city and customs and mores40.
The Monks Movement (969) who organize courses to teach Buddhist for children, and little by little movement began seeking to put its plans subversive against Islam and Muslims, and took provoke religious fervor among the Buddhists under the pretext of the need to Buddhist identity protection, induce fear of the spread of Islam in Myanmar, it became Movement ( 969) a symbol of the fight against Islam and Muslims.
In 2001 the monk extreme Ashin Wirathu abbot Masoeyein joined to an (969) Movement in Mandalay, a town about 300 kilometers north-east of Sittwe (Okiab) the capital of Arakan State, who described himself as "Bin Laden Burmese", the magazine published "Time," the US on its cover a picture of him under the title "the face of Buddhist terrorism," said the Buddhist 40 Schissler, M. (2014), Echo chambers in Myanmar: Social media and the ideological justifications for mass violence.
Paper for the Australian National University Department of Political & Social Change Research Colloquium, “Communal Conflict in Myanmar: Characteristics, Causes, Consequences,” 1718 March 2014, Yangon, Myanmar.
monk known hostility to Muslims in his country, noting that the monk, "Ashin Wirathu" had described Muslims as "epidemic threatens Myanmar41 In remarks for "Ashin Wirathu" leader of the (969) Movement at the end of February, he expressed concern that Myanmar is headed in the day a Muslim man, where there is not in the Constitution prevents a Muslim who holds the citizenship of Myanmar's running for president.
The remarks came in the context of the objection, "Ashin Wirathu" on the candidacy of opposition leader "Aung San Suu Kyi," Chairperson of the National League for Democracy in the next presidential elections, where he said: "I'm afraid of foreign influence in the affairs of the country from the Muslims or the Chinese in case the amendment to Article 59 of the Constitution, which prevents opposition leader Aung San Suu Kyi from running for the presidency. "
41 McDonald Mark, “As Violence Continues, Rohingya Find Few Defenders in Myanmar,” New York Times (Oct. 31, 2012), http://rendezvous.blogs.nytimes.com/2012/10/3 1/as-violence-continues-rohingya-find -fewdefenders-in-myanmar.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 233 Rohingyas And Human Rights Myanmar had not conducted a census in 30 years, has jointly with the United Nations Population Fund (UNFPA) to conduct a census in the months of March and April 2014, and was expected to give a more accurate indication of the population of Rohingya Muslims42.
Despite the warnings of international institutions, as a group of international crises, and Human Rights Watch, the questionnaire included a controversial clause in particular, include a question on ethnicity uses the list back to 1982, comprises 135 ethnic groups do not include the "Rohingya"43 Report an international observer described the census in Rohingya areas as a "fiasco," explaining that the Rohingya "They were very excited to participate in the census, but were prevented from doing so by the field teams and officials of the Ministry of the population.
In September 2014, the Burmese government announced a non-final results of the census, but said that the 42 United Nations Population Fund Myanmar, UNFPA and Ministry of Immigration and Population Launch 2014 Population and Housing Census Project, December 2012.
43 Saito Ayako, Myanmar: Observations of the First Census in 31 Years, Institute of Asian Cultures, Sophia University : special race data will not be published until 2015, arguing that the publication of such data could increase sectarian tensions44.
It is worth mentioning that in the period following the First World War, created several new countries including religious minorities and nationalism for many, which is reflected in the international treaties which included clauses clearly provides for the protection of minorities, and the League of Nations, which was formed in 1919, an organization with the right to investigate any complaints submitted to it about the irregularities and violations of minorities through its Trusteeship Council, the General Assembly of the League of Nations in 1933 and issued a decision in which hopes of the nonsignatory States on the protection of minorities subject to the rules of justice in its treatment of minorities under their sovereignty system.
At December 18, 1992 the United Nations issued a declaration on "the rights of persons belonging to national or http://peacebuilding.asia/1679/ It was looking on : 02/07/2016.
44 Albert Eleanor, The Rohingya Migrant Crisis, Council on Foreign Relations (June 17, 2015), http://www.cfr.
org/burmamyanmar/rohingyamigrant-crisis/p36651.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 234 ethnic, religious or linguistic minorities", as adopted declaration on all international conventions on human rights and civil and political rights and the prevention of crimes of genocide and to prevent all forms of discrimination against women and children, and felt United Nations that "the promotion and protection of the rights of persons belonging to national or ethnic, religious or linguistic, contribute to political and social stability of States in which they live."
Article I of the Declaration of the Rights of persons belonging to national or ethnic, religious or linguistic minorities45 that "States, each in its territory, protect the existence and identity of minorities cultural, religious, linguistic, and encourage conditions for the promotion of that identity.
And that the appropriate legislative measures countries adopt to achieve those goals. "
Among the major international human rights instruments that have been adopted in the United Nations and for which she received an important position in international law, the Universal Declaration of Human Rights in 1948, the Covenant on Civil and Political 45 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 47/135, Resolution Rights in 1966 and the International Covenant on social, cultural and economic rights in 1966 and the International Covenant, The three documents together formed the so-called "list of international rights.
Is the United Nations Declaration on "the rights of indigenous peoples" in September 2007, of the most important international documents, which recognizes the fundamental collective rights of indigenous peoples, and cultural ones, linguistic, religious and other, more widely and more inclusive of all the instruments of international human rights law.
This confirms the declaration of indigenous peoples the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms recognized in the Charter of the United Nations and the Universal Declaration of Human Rights and international human rights law.
Although indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination in the exercise of their rights, and in particular discrimination adopted by the General Assembly, 18 December 1992.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 235 based on their indigenous origin or identity.
The Rohingya Muslims, as a people live on authentic historical land hundreds of years ago, is still subjected to serious violations of the rights of individuals and the community level, especially after the rise in religious tensions in Myanmar by Buddhist monks and Movement (969 extremist).
Despite the political reforms that began in Myanmar and the release of "Aung San Suu Kyi," the human rights defender and winner of the Nobel Peace Prize, and the holding of democratic elections in 2011 after decades of military rule, thousands of Rohingyas killed has been also been the displacement of hundreds of thousands of their areas in Arakan state46.
The Rohengjian to authentic as a people living on the land of his fathers rights endorsed by the international community in his announcement No.
295/61 for the year 2007 on the rights of indigenous peoples47, are: 46 UNHCR has stated that more than 130,000 Rohingya departed the Myanmar-Bangladesh border area from January 2012 to 2014, and 31,000 in the first half of 2015.
See U.N. High Commissioner for Refugees Regional Office for Southeast Asia, Irregular Maritime Movements in Southeast Asia—2014 (April 2015), 1.
Equality with all other peoples, and delivery at the same time the right of all peoples to be different and to consider themselves different and to be respected as such.
2.
Confirmation that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial differences or religious, ethnic or cultural, are doctrines, policies and practices of racial legally invalid, morally condemnable and socially unjust.
3.
Concern to indigenous peoples have suffered from historic injustices, the result of colonization and dispossession of their lands, territories and resources, and thus prevented particularly from exercising their right to development according to their needs and interests.
4.
Respect and promote the rights of indigenous peoples, derived from http://storybuilder.jumpstart.ge/en/unhcr-imm; U.N. High Commissioner for Refugees, Mixed Maritime Movements (April June 2015), http://www.unhcr.org/53f1c5fc9.pdf.
47 United Nations Declaration on the Rights of Indigenous Peoples General Assembly resolution 61/295, New York, 13 September 2007.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 236 their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.
5.
Welcoming the indigenous peoples are organizing themselves in order to improve their positions on the political, economic, social and cultural levels, in order to put an end to all forms of discrimination and oppression wherever they occur.
6.
Noted that the rights enshrined in the treaties and agreements between States and indigenous peoples are causes, in some cases, concerns and interests of international and establish an international responsibilities and take an international dimension.
7.
Recognize that the Charter of the United Nations Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights and the International Covenant, as well as the Declaration and Programme of Action of Vienna, emphasizes the fundamental importance of the right of all peoples to selfdetermination, by virtue of which they freely determine their political status and freely pursue their development economic, social and cultural rights.
8.
Recognizing that the situation of indigenous peoples vary from one region to another and from one country to another, and it should take into account national and regional characteristics and the different historical and cultural background of the importance, to formally announce the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be seeking to achieved in a spirit of partnership and mutual respect.
These are some of the principles of the United Nations Declaration on the rights of peoples purebred, and undoubtedly some of the countries that signed it forced, will be looking for multiple ways for violating the intent to deprive any of the original peoples of the countries of their rights legislated by the international community, and this is what we see happening in Myanmar towards Muslims Rohingyas are deprived of the most basic human rights.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 237 IV.
CONCLUSION AND SUGGESTION Although sixty-six years after the issuance of "Universal Declaration of Human Rights" in 1948, the human remains in different parts of the world to offer sacrifices in order that this declaration enters into force in actual fact, because it is important enriched by the human values.
As noted, the Universal Declaration of Human Rights confirmed the concept of protection of individuals and peoples, groups and minority rights through the international legal system, in order not to have this individual and the group that defends the rights of the exercise of injustice and ethnic cleansing.
The protection of the Rohingya Muslims in Myanmar is a global moral responsibility in the custody of the United Nations, the Union of European countries, and all the major countries and those that have signed the Universal Declaration of Human Rights.
Also, to protect these people, who have suffered through history to the present day to exterminate systematically, by terrorist groups and government agencies collaborating with it, is a legal commitment to human rights and implementation of international conventions and treaties.
Therefore on these bodies to assume their legal and moral responsibilities, so as to work effectively with all signed it in order to preserve what remains of its credibility.
We call the United Nations bodies and the Human Rights Council, and all human rights forums and civic institutions in the world in order to: 1. pressure the Myanmar government to stop the genocide, murder, deportation, arrests against Rohingya Muslims in a authentic ethnic ingredients immediately.
2. pressure to give the Rohingyas the right to management of the province of Arakan, serve as a safe haven for them, in accordance with the content of the United Nations Declaration on the Rights of Indigenous Peoples, especially in the third and fourth articles, which recognizes the right of indigenous peoples to selfdetermination.
3.
Support for the civil and political human rights and media and relief organizations Muslims in Rohingya in Myanmar, in order Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 238 to ensure their continued presence, and activate their participation in political life in their homeland, and the reconstruction of the regions affected, and extended to all forms of assistance and material and political support.
4. arrested the perpetrators of genocide, crimes against Rohingya Muslims, from the government, groups or individuals responsible, and refer them to the International Criminal Court in order to prevent the recurrence of such practices against the peoples in other parts of the world.
REFERENCES Abid, Bahar, Racism to Rohingya in Burma, AYE CHAN’S “ENCLAVE” WITH “INFLUX VIRUSES” REVISITED, released on 27 december 2012.
Andrew, Buncome, “Homeless and Helpless: The Rohingya Muslims of the Rakhine State,” The Independent (Dec. 5, 2012), http://www.independent.co.uk/n ews/world/asia/homeless-andhelpless-the-rohingya-muslimsof-rakhine-state-8386822.html.
Aye, Chan, The Development of a Muslim Enclave in Arakan (Rakhine) State of Burma (Myanmar), SOAS Bulletin of Burma Research, Vol.
3, No.
2, Autumn 2005, canda University of International Studies Ayako, Saito, Myanmar: Observations of the First Census in 31 Years, Institute of Asian Cultures, Sophia University : http://peacebuilding.asia/1679/ It was looking on : 02/07/2016.
Dean, Nelson, “Rohingya Campaigners Accuse Burma of Failing to Stop Deaths,” The Telegraph (Oct. 26, 2012),http://www.telegraph.co.u k/news/worldnews/asia/burmam yanmar/9636161/Rohingyacampaignersaccuse-Burma-offailing-to-stop-deaths.html.
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 47/135, Resolution adopted by the General Assembly, 18 December 1992.
Eleanor, Albert, The Rohingya Migrant Crisis, Council on Foreign Relations (June 17, 2015), Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 239 http://www.cfr.
org/burmamyanmar/rohingyamigrant-United Nations Declaration on the Rights of Indigenous Peoples General Assembly resolution 61/295, New York, 13 September 2007.
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(ANA).
Franziska, Blum, In Their Own Voice “Democracy” as Perceived in Burma/Myanmar 1921 – 2010, Passau university Hani, Salah, Muslims of Rohingya: The journey to escape from "death" to "death", Arakan News Agency (ANA), 20 February 2014.
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Center for strategic and international studies, Washington may 2014.
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Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.06 117 MODEL REGULATION FOR DATA PRIVACY IN THE APPLICATION OF BIOMETRIC SMART CARD Sinta Dewi1 1 Department of ICT Law, Law Faculty, Padjajaran University Email : sinta@unpad.ac.id Submitted : 24-02-2017 | Accepted: 08-03-2017 ABSTRACT Notwithstanding the foregoing, the use of this technology has raised many concerns with regard to the need of privacy data protection.
It is due to the fact that biometrics technology as a powerful identifier brings along personal information that can be traced from different sources to be linked together, and also the ability of third parties to access this data in identifiable form and link to other informations and used this information for secondary uses without the consent of data subject.
Data privacy is considered as fundamental human rights and has been regulated in a number of international instruments as well as regional instruments and has been incorporated into more than 100 national laws.
Countries have now recognized data privacy either as explicit constitutional rights, or in the form of comprehensive data privacy law.
This article discusses the extent to which the use of biometric smart card as a tool to examine the identification has been increasingly utilized due to its advantages, such as ability to achieve a high level of accuracy, the system cannot be easily duplicated as well as high level of security, since it involves biological characteristics like fingerprints, iris and DNA.
It further explores data privacy model regulation which is intended to regulate and protect data privacy.
This article concludes that data privacy is a legal right regulated and controlled by both international and national instruments, and the use of biometric smart card often viewed as a conlict between the need of security and how far the system protects data privacy.
The model of regulation approach, known as hybrid model, is aimed to ensure privacy data protection.
Such hybrid model of regulations should combine 4 (four) approaches namely; government regulations, social norms, corporate privacy rules and technical regulations.
Keywords: data privacy regulation, model, biometrics, privacy policy I.
INTRODUCTION As innovations in information technology have enabled previously unimagined forms of collecting, storing, sharing and analyzing data, data privacy has evolved to encapsulate a right to protection of personal data1.
The concept 1 Human Rights Committee general comment No.
16 (1988) on the right to respect of privacy, family, home and correspondence, and of data privacy derived from the establishment of rules governing collection and handling of personal data, and implies that individuals have the right to decide whether to engage with society by sharing or exchanging their personal information, protection of honor and reputation (art.
17).
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 118 and to determine on what terms they are prepared to do so.
Data privacy laws generally incorporate safeguards protecting the security of personal data and allowing for its use by others only in prescribed circumstances.
In recent years , many services industries utilize smart card in providing better services for public by both government and business.
Therefore all transactions will be managed quickly with high accuracy, better security and the data can be easily stored, for example for financial services, government services, educations.
This technology offers a lot of significant benefits for providers and users of services, while offering a challenge for anyone who wants to develop this innovation further.
High mobility is obtained from small physical size with small dimensions of chip.
Security of data is supported by the microprocessor in a chip that can perform encryption process stored data2.
However the using of modern technology such as biometric smart card have posed new threat to the way information particularly personal data will be collected, processes and disseminate and this technology enable new form of monitoring and recording personal data 2 Smart Card Alliance Report, Smart Card and Biometrics, (2011), 3.
3 Daniel J. Solove and Marc Rotenberg, Information Privacy Law, (Aspen Publisher, 2003), 47.
4 Abu Bakar Munir, Data Protection Law In Asia, (Sweet & Maxwell, 2014), 1. that eventually will be in conflict with data privacy3.
Data privacy protection become a globally paradigm since it has been universally accepted as one of fundamental tenet for democratic society4 and protecting privacy means protecting individual's right to control how personal data is collected, processes and distributes to third parties and in establishing biometric smart card privacy must be considered as a basic design goals and the use of biometric smart card will strengthen the ability of the system to protect data privacy user5.
Data privacy paradigm always influenced by the rapidly technology changing since the beginning that enable new form of recording, monitoring and surveillance6.
Technology should not be perceived as threat to privacy but also could provide a tool to protect privacy.
This paper will propose the model of regulation for data privacy protection that represent 4 (four) approaches that could empower the user to control their personal information which is base on international global privacy standards, state and business practices.
5 Smart Card Alliance Report, Privacy and Security Identification System : The Role of Smart Cards as A Privacy Enabling Technology, (2003), 4.
6 Daniel J. Solove and Marc Rotenberg, (2003), above n.4, 50.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 119 II.
LEGAL MATERIALS AND METHODS The legal materials of this paper are primary and secondary legal materials.
Using the statute and conceptual approaches, this paper is divided into several parts.
The introduction elaborates technological development using biometric data and how this issue faced with privacy issue as guaranteed as constitutional rights.
It further discuss about how such biometric use might infringe privacy protection and finaly existing model of regulation is examined.
New approach in model of regulation is proposed at the end of the paper III.
RESULT AND DISCUSSION 1.
Overview of Biometric Smart card Both government and business have been utilizing smart card to provide more secure and reliable forms of electronic identification7 such as ID cards, passport and health card.
Combining smart card technology with biometrics, which is based on unique physiological features of individuals such as fingerprint, face and iris recognition and behavior characteristic such as the use of software to monitor the 7 Smart Card Alliance Report, (2011), above n 3, 5.
8 Ibid manner of particular invidual, will create a positive binding of smart card and difficult to clone8 additionally biometric data will directly related to individual .
Under data privacy regulation, biometric data perceived as sensitive personal data and deserving for special protection and should be subject to more strict control comparing to general personal data.
The data privacy issue on smart card biometric technologies is concerning with how far the personal data is used for identification by the data user, and the data user has the responsibility to protect the personal data in order to built the trust as the main pillar for the continuation of the relationship.9 According to smart card alliance report, there are number of factors that could be in conflict with data privacy 10: 1) the amount and type of personal informations that used by the ID system and in the case of biometric data was being use then it need more higher protection and how far the data subject will be able to control access of their personal data; 2) the extent of technology can secure the ID system for example the possibility of privacy by design approach; 9 Smart Card Alliance, Smart Cards and Biometrics in Privacy-Sensitive Secure Personal identification Systems, Report, (2002), 7-8.
10 Ibid, 6-7.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 120 3) the policy to protect data privacy that restricting both access and use of personal data and controlled by choice system.
Identification Biometrics Smart card Data privacy issue concern increased with regard to identification system that will be identiable person from their biometric data such as finger print, voice, Irish as accurate evidence of one's identity since it will potrays a very unique biological characteristics that distinguish one person from another11 and the threat to data privacy arises not from the positive identification but from the ability of third parties to access the data and link personal data with another data base secondary uses without data subject consent.
According to the ASCL (Association of School and College Leader) report that estimates about 30% of biometric data using for secondary uses12.
In handling the biometric data subject and organization must take several steps: 11Ann Cavoukian, Privacy and Biometrics, Report, Information and Privacy Commissioners,( Ontario 1999), 2-3.
Figure 1.
Steps in handling biometric personal data 2.
Data Privacy Theory The concept of data privacy protection emerged in the nineteenth century by the publication of two legal scholars Samuel Warren and Louis Brandeis's, who at the first time express there are the right to privacy as a result of technological development that caused a great harm to people’s comfort.
Then afterwards, the right of privacy always referred to the right to be let alone13 , implies that individuals have the right to 12Biometrics data: Schools will need parent's approval, [http://www.bbc.com/news/education18073988] 13 Daniel.
J. Solove and Marc Rotenberg, (2003), above n 4, 3.
1the organization need for caution to handle sensitive biometric data; 2what is the legal justicication for collecting and using biometric data 3apply risk minimisation in biometrics data collection 4-the possibility to apply privacy impact assesment Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 121 decide whether to engage with society by sharing or exchanging their personal informations and to determine on what terms they are prepared to do so.
Data privacy laws generally incorporates safeguards the use of personal data, and are subject to regulatory framework.
Individuals or data subject have the right under personal data law to claim if the processing of their personal data against basic principles which is common under global privacy standards14.
Alan Westin for the first time defines privacy as the right of the individuals to decide under what circumstances and to what extent their personal data will be exposed to others, and his theory is named as data privacy15.
The data privacy theory then adopted into several multilateral legal instruments that establishing international recognized data privacy principles that have laid the foundation of most modern national data privacy laws16 such as OECD's 1980 Privacy Guidelines that has been use as model to regulated data privacy in many jurisdiction , the Guidelines has defined personal data as as “any information relating to an identified or identifiable individual” ); an identifiable person is one who can be identified, directly or 14 David I. Brainbridge, Introduction to Information Technology Law, (Pearson Education Limited, 2008), 497.
15 Alan F. Westin, Privacy and Freedom, (Atheneum, 1999), 32, see also, Abu Bakar indirectly, in particular by reference to an identification number or toone or more factors that are specific to his or her physical, physiological, mental, economic, cultural or social identity17.
The Guidelines are not legally binding but have long been recognized as a basic of norms that should govern data privacy and guide OECD members and private organizations in crafting their policies.
The Guidelines define personal data as data relating to an identified or identifiable person however what exactly type of personal data is according to many interpretation but the main point is that data that connected to individuals that will be protected either by data itself or combined with other information.
The listed below as examples include as data privacy such as a person’s name when combined with other information about them, such as their address, sex, age, education, or medical history.
These examples are not exhaustive and many other kinds of informations may still qualify as personal informations : Munir, Siti Hajar Mohd Yasin, Md Ershadul Karim, Privacy, (Sweet & Maxwell, 2014), 4-5.
16 Privacy International report, A Beginner Guide to Data Protection, Report, (2013), 5.
17 EU Data Protection Directive, 1995 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 122 Figure 2.Identifiable personal data Some jurisdictions mostly influenced by European Union approach, differentiate between ‘sensitive’ and ‘non-sensitive’ data based on the likelihood of harm an individual is likely to suffer if unauthorised processing were to occur.
Sensitive data is typically afforded greater protection by the law.
The processing of personal data is prohibited unless ‘explicit’ consent is obtained priory.
Figure 3.Sensitive Personal Data Data privacy is protect how data privacy should be processing that including but not limited to: Collection Recording Organization Storage Adaptation Alteration Disclosure Retrieval Dissemination Figure 4.Personal Data Process The Guidelines stipulate that the following principles should be adhered to when collecting and processing personal information and data: Figure 5.
Basic data privacy principles in collecting and processing personal information and data IDENTIFIABLE PERSONAL DATA Name Email Address IP Address Social Media Satus Education Age Sex SENSITVE PERSONAL DATA Physical /mental condition Medical Health Sexual life Criminal Record Membership of trade union Rreligious or other belief Political opinion Basic Principles Collection limitation Data quality Purpose specification Use limitation Security safeguards Openness Individual participation Accountability Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 123  Collection limitation: there should be limits to the collection of personal data, and data, which should be obtained by lawful and fair means and, where appropriate, with the knowledge or consent of the individual  Data quality: personal data should be relevant to the purposes for which they are used, and should be accurate, complete and kept up-todate  Purpose specification: the purposes for which personal data are collected should be specified and any subsequent use must be limited to that specification  Use limitation: data should not be disclosed, made available or otherwise used for purposes other than those specified except a) with the consent of the individual or b) by the authority of law  Security safeguards: data should be protected by reasonable security safeguards to protect against lost, destruction, use, modification or disclosure  Openness: there should be a general policy about openness with respect to personal data 18 Privacy International Report, Ibid 19 Lawrence Lessig, Code Version 2.0, Basic Book ,( New York, 2006), 290.
 Individual participation: an individual should have the right to find out information about their data and to have incorrect data erased or rectified  Accountability: a data controller is accountable for complying with these measures.
Many multinational companies abide by these data protection principles as a way of ensuring minimum compliance in jurisdictions where Data Protection laws either do not offer stringent enough protections or do not exist.18 3.
Model of Regulation The model of regulation is the adaption model from Lawrence Lessig Modalities 19 named as hybrid approach that stated 4 ( four ) factors or modalities which can be used by individuals to control activities in information technology sector and each of this modalities have functions as a constrain on the individual actions those are (1) Law that form by the government that will impose ex post as a sanction ; this approach also posed many constraint such as how to balance between protection and innovations and causing debate since many have to harmonize the regulation and not causing a legal barrier to global information flows 20.
So the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 124 regulations have to be added by (2) Social norms through imposing the societal sanction in the extent the how far individual ought to behave and the sanction will be enforced not through legal norm but rather though the expectation within a particular community; (3) the third constraint is corporate privacy regulation; In the digital economy era data is the oil of 21 st Century and to extract and use data will gain a huge rewards for corporation so it is important to smooth the data functionality from the government to companies i.e :Today, data infrastructure is become a profit center and since data is the main raw materials to conduct a business , companies must treating data as corporate asset.
Personal data is one of the assets, so by using, keeping and maintaining personal data the company will create new products and services.
Treating data as a strategic asset indicates that organizations need to build inventories of existing data just as they do for physical assets.
Organizations need to establish corporate business management to prevent from unauthorized utilization and disclosure of personal data as they can affect the integrity of the company quality and reliability of daily business decisions.
Depending on the business of the organization, it must protect sensitive data, such as customer information, patient information, credit card numbers and personally identifiable information (PII), as well as intellectual property.
The main goals of business are to keep the business growing, gaining profits and maintaining the business by way of attaining customer trust and satisfaction as to get customer’s loyalty.
In return, loyal customer may recommend the business to others, and also it may lead to repeat purchase.
Hence, it is essential to gain and keep a trust.
In ICT business there two pillars of trust, namely Security and Privacy.
Therefore, corporate should establish the standards of business conduct that will embedded in corporate management conduct.
This standards will be drawn in the form of corporate privacy rules in protecting customer data privacy: 1.
Employees must comply with data privacy laws and regulations and data privacy contractual requirements that apply to personal identifiable information; a.
Comply data privacy principles to limit comply collection, use, access, distribution costumer personal data; b.
Comply with company privacy policy c. Provide corporate security manuals; d. Report immediately for all suspected and actual personal data breach Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 125 e. Bring all failure to the attention of supervisors, customers, subcontractors and vendors.
(4) The Final model of regulation is by technology in the form os software or hardware that will determine how people should interact.
21For example the PET which is defines “is a system of ICT measures protecting informational privacy by eliminating or minimizing personal data thereby preventing unnecessary or unwanted processing of personal data, without theloss of the functionality of the information system.” Figure 6.
PET Goal PET for example is encryption.
Encryption today is a relatively mature technology, though still in a state of advancement.
Encryption supports the security and proportionality principles of data protection law.
In the past two years we 21 Lawrence Lessig, (2006), above n 20, 290.
See also Andrew Murray, Information Technology Law, The Law and Society, ( Oxford University Pers, 2010), 62-63. have seen an increasing trend for regulators to become more prescriptive in their approach to encryption,22.
Anonymisation also use as a one of the model to protect data privacy and the main principles is that the data rendered shall be anonymous in such a way that the data subject is no longer identifiable23.
Figure 7.
Hybrid model of regulation The hybrid model offered in this paper is the combination of four crucial elements, which include law by the government, social norm living within the society, corporate privacy regulation and relevant code.
While each element usualy goes sectoraly without integration, often it resulted in the overlapping of regulations.
Thus, it is proposed that those four elements should be integrated and read as cumulative elements in regulating the use 22 Privacy Report, above n 19.
23 ICO Report, Privacy By Design, https://ico.org.uk/for-organisations/guide-to-dataprotection/privacy-by-design/ Pet Goals Reduces or eliminates the risk of contravening data privacy and legislation Minimizes the amount of data held about individuals Empowers individuals to retain control of information about themselves at all times LAW BY THE GOVERNMENT to impose sanction SOCIAL NORM CONSTRAIN through imposing the societal sanction CORPORATE PRIVACY REGULATION as internal corporate rules ARCHITECTURE OR CODE In the form of software or hardware HYBIRD Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 126 of biometric data without violencing the privact issue and other constitutional rights.
IV.
CONCLUSION AND SUGGESTION This article concludes that data privacy is a legal right regulated and controlled by both international and national instruments, and the use of biometric smart card often viewed as a conlict between the need of security and how far the system protects data privacy.
The model of regulation approach is aimed to ensure privacy data protection.
The approach is called hybrid model of regulations that combine 4 (four) approaches namely; government regulations, social norms, corporate privacy rules and technical regulations.
REFERENCES Books Abu Bakar Munir, Data Protection Law in Asia, (Sweet & Maxwell, Hongkong, 2014) Alan F. Westin, Privacy and Freedom, (Atheneum, 1967) Andrew Murray, Information Technology Law, The Law and Society, (Oxford University Pers, 2010) Daniel J. Solove and Marc Rotenberg, Information Privacy Law, (Aspen Publisher, 2003) David I. Brainbridge, Introduction to Information Technology Law, (Pearson Education Limited, 2008) Ian J. Llyod, Information Technology Law, (Oxford University Press, Oxford, 2011) Lawrence Lessig, Code Version 2.0, Basic Book , (New York, 2006) Report Ann Cavoukian, Privacy and Biometrics, Report, Information and Privacy Commissioners, Ontario, 1999.
Biometrics data : Schools will need parent's approval, [http://www.bbc.com/news/education -18073988] Human Rights Committee general comment No.
16 (1988) on the right to respect of privacy, family, home and correspondence, and protection of honors and reputation (art.
17).
Privacy International report, A Beginner Guide to Data Protection, Report, pp, 2013.
Smart Card Alliance Report, Smart Card and Biometrics, 2011.
Smart Card Alliance Report, Privacy and Security Identification System : The Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 127 Role of Smart Cards as A Privacy Enabling Technology, 2003.
Smart Card Alliance Smart Card Alliance Report, Smart Card and Biometrics, 2011.
Smart Card Alliance, Smart Cards and Biometrics in Privacy-Sensitive Secure Personal identification Systems, Report, 2002.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 128
176 | DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.03 Judicial Exposition of Gender Justice as a Constitutional Mandate: A Narrative from India Shipra Gupta Department of Laws, Panjab University, Chandigarh.
Email: shipragupta659@gmail.com Submitted : 2020-07-27 | Accepted : 2020-09-27 Abstract: The catalytic role played by the Indian judiciary in providing visibility to the ‘covert social prejudices’ against females has succeeded in alleviating the condition of women in our patriarchal society.
This paper strives to highlight the proactive role played by the judiciary in recent years, addressing women concerns in a different light, which were hitherto unconditionally accepted with complacence.
Purposive approach adopted by the judiciary in interpreting existing laws, manifests adherence to the constitutional mandate of gender equality.
Further, an attempt has been made to identify the areas where judicial action has fallen short in bringing about real justice to women.
The research is primarily based on the normative method presenting qualitative analysis of the constitutional and legislative provisions and their judicial exposition.
The paper concludes that judicial creativity needs the backing of social acceptability to bring about real social transformation towards the constitutional mandate of gender justice.
Keywords: constitution of india; gender justice; gender discrimination; judicial interpretation; social transformation; patriarchy.
I.
INTRODUCTION Justice connotes fair and equitable treatment of all individuals under law.
It may be achieved through social justice or distributive justice that is reflected in equal share of benefits, burdens and responsibilities within society.
However, 1 Sex is mostly related to biological features (chromosomes, sex organs, hormones and other physical features).
See Anca Gheaus, ‘Gender Justice’ (2012) 6 (1, January) Journal of Ethics & Social Philosophy 1, 3 <https://www.jesp.org/PDF/gender_justice_finali zed.pdf> accessed on 23 /07/2020.
injustice is antithetical to the principles of justice; suffering because of one’s sex 1 amounts to gender injustice 2 .
‘Gender’ is understood to refer to the ‘deeply entrenched social institutionalization of sexual difference’.3 Gender injustice is manifested in violence, discrimination, deprivation and 2 Gender represents the social meanings associated with sex, and gender norms in any social order are seen as a source of injustice, See Anca Gheaus, above n 1, 3, 4.
3 Susan Moller Okin, ‘Gender, Justice and Gender: An Unfinished Debate’, (2004) 72 Fordham L. Rev.
1537, 1539 mailto:shipragupta659@gmail.com https://www.jesp.org/PDF/gender_justice_finalized.pdf https://www.jesp.org/PDF/gender_justice_finalized.pdf Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 177 exploitation against women in various spheres including social, economic, domestic, market and legal spheres.4 Gender justice is positively related to gender parity and gender equity5 and can be achieved by eliminating such inequalities that are generated and regenerated at every level ranging from family to state.
It requires power and responsibility sharing between men and women at every level, i.e., domestic, workplace and community levelboth nationally and internationally.
6 To achieve gender justice, poverty and exclusion resulting from discrimination needs to be addressed by the mainstream institutions right from justice to economic policymaking.
7 Gender equality paves way for gender justice and is crucial for the development of the country.
Whereas, gender discrimination is an impediment in the overall development, poverty reduction and human progress.
Inherent gender bias within society operates at an unconscious level and permeates the social psyche in a subtle manner, thus perpetuating gender injustice.
Such discreet influences make it arduous to control injustice in an up-front manner.8 At <https://ir.lawnet.fordham.edu/cgi/viewcontent.cg i?article=3963&context=flr> accessed on 23 /07/2020.
4 Anca Gheaus, above n 2, 6 5 Gender parity is different from gender equality.
‘Gender equality’ conveys equal enjoyment of valued goods, resources, opportunities and rewards while ‘gender equity’ is understood as the process of being fair and just.
It rather conveys equal distribution of resources based on gender specific needs.
See, Binila Mathews, ‘Gender Equity in Kerala: An Analysis of Constitutional Provisions and Civil Society Movement’ (2019) 6(1) International Journal of Research and Analytical Reviews, 158, 158 <https://ijrar.com/upload_issue/ijrar_issue_20544 079.pdf> accessed on 30/10/20.
6 ‘Gender Justice’, Oxfam <https://policypractice.oxfamamerica.org/work/gender-justice/> accessed on 12/02/2019.
an overt level, discriminatory socio-cultural practices with religious overtone, supported by archaic laws contribute in perpetuating subjugation of women in the patriarchal societies.
Patriarchy has been defined as “a male-centered, male identified maledominated social system, as a source of continuing inequality between women and men”.9 Gender inequality has been gradually perpetuated by the patriarchal structures of society.10 It has been argued that the onus of making gender-just-society lies on individual action, much less on the legislation and social institutions.
11 However, in recent times socially progressive legislations and judicial creativity have been instrumental in bringing about positive social transformation.
This judicial creativity is reflected in the guidelines/directions issued by the Hon’ble Supreme Court of India from time to time for addressing gender bias.
Furthermore, the purposive approach adopted by the judiciary for interpretation of existing laws, has tried to keep up with the spirit of constitutionalism.
7 ‘Gender Justice: Key to Achieving Millennium Development Goals’, United Nations Development Fund for Women (UNIFEM), 3 <http://www.ungei.org/resources/files/MDGBrief -English.pdf> accessed on 20/09/2017.
8 See Virginia Valian ‘Why So Slow?
The Advancement of Women’ (1999), Cambridge, MA: MIT Press, as referred in above (n 1) 7.
9 Mary Becker, ‘Patriarchy and Inequality: Towards a Substantive Feminism’ University of Chicago legal Forum (Vol.1999) Issue 1, Article 3, 21, 85 http://chicagounbound.uchicago.edu/uclf/vol1999 /iss1/3 accessed on 20/10/20.
10 Shipra Kaushal, Gender Inequality: Illustrated Through a Legal Perspective on Female Foeticide, (Satyam Law International, 2014) 11 Anca Gheaus, ‘Gender Justice’ (2012) 6 (1, January) Journal of Ethics & Social Philosophy above n 4, 20. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3963&context=flr https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3963&context=flr https://ijrar.com/upload_issue/ijrar_issue_20544079.pdf https://ijrar.com/upload_issue/ijrar_issue_20544079.pdf https://policy-practice.oxfamamerica.org/work/gender-justice/ https://policy-practice.oxfamamerica.org/work/gender-justice/ http://www.ungei.org/resources/files/MDGBrief-English.pdf%3e%20accessed%20on%2020/09/2017.
http://www.ungei.org/resources/files/MDGBrief-English.pdf%3e%20accessed%20on%2020/09/2017.
http://chicagounbound.uchicago.edu/uclf/vol1999/iss1/3 http://chicagounbound.uchicago.edu/uclf/vol1999/iss1/3 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 178 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… II.
LEGAL MATERIAL AND METHODS The paper strives to highlight the proactive role played by the judiciary that has, to a great extent, contributed in presenting a novel perspective to women concerns, which were hitherto unconditionally accepted with complacence.
The catalytic role played by judiciary has given visibility to socially embedded ‘covert prejudices’ pervading all spheres of a woman’s life, from intimate family sphere to the public sphere.
Attempt has been made to gauge the extent to which judiciary has succeeded in alleviating the condition of women in our patriarchal society.
The paper further aims to identify the areas where judicial action has fallen short in bringing about real justice to women.
III.
RESULT AND DISCUSSIONS Gender Jurisprudence Gender jurisprudence, in recent times has evolved through a body of pro-women legislations and pro-active gender just judgements delivered by the higher judiciary, striking at the root of existing norms supporting gender bias in the society.
The principle of equality of status and negation of gender bias permeates the entire structure of the Constitution of India.
Basic constitutional principle of gender equality, entails judicial endeavour to interpret the statutes in consonance with the constitutional mandate 12 Velamuri Venkata Sivaprasad v Kothuri Venkateswarlu (2000) 2 SCC 139, 148.
13 The Constitution of India, Articles 14, 15 (i), 16, 39 (a), 39 (d), 42, 51 (A)(e).
14 Medha Kotwal Lele v Union of India (2013) 1 SCC 297, 308.
15 Article 372, Constitution of India declares that “all laws in force in the pre-Constitution period shall remain in force unless lawfully altered, repealed, amended [or adapted] by a competent authority.” 16 No reconciliation between the individual’s fundamental rights and the discriminatory personal of equality based on sex.12 The Constitution is founded on the principle of equality and non-discrimination, and has struck a balance between individual rights and the State commitment to establish an egalitarian social order.
Constitutional guarantee of equality in Part III is a positive assurance of ‘gender justice’.
Non-discrimination on the ground of ‘sex’ is a boon to further ‘gender justice’.13 Our Constitution framers believed in fairness and justice for women.
The States’ commitment of gender parity and gender equality, non-discrimination and guarantee against sexual harassment to women is reflected in the Constitution.
14 Despite Constitutional provisions and Fundamental Rights there remains a wide gap between de jure and de facto entitlements that are reflected in the regressive trends of social reality, primarily owing to pre-constitutional discriminatory ‘personal laws’ 15 that still retain stronghold 16 .
To a great extent the reason for this disparity lies in India's secularism incorporating the maxim sarva dharma sambhava or “all religions are equal”.
However, this “religious pluralism” has spill over effect on the women’s rights creating conflict between constitutional mandate of individual’s equal protection and discriminatory personal laws; as the personal laws are judicially exempted from the requirements of Articles 13, 14, and 15 of the Indian Constitution.17 laws is possible until a "competent authority" reforms the law in conformity with Article 13 of the Constitution of India.
Citing Tahir Mahmood, Personal Laws in Crises 6 (1986) in Cyra Akila Chaudhary, (Mis)Appropriated Liberty: Identity, Gender Justice and Muslim Personal Law Reform in India, (2008) 17 Colum.
J.
Gender & L. 45, 65 <https://ecollections.law.fiu.edu/faculty_publicati ons/94> accessed on 29/10/20.
17 Cyra Akila Chaudhary, ‘(Mis)Appropriated Liberty: Identity, Gender Justice and Muslim Personal Law Reform in India’, (2008) 17 Colum.
J.
Gender & L. 45, 47 & 67. https://ecollections.law.fiu.edu/faculty_publications/94 https://ecollections.law.fiu.edu/faculty_publications/94 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 179 Article 14 of the Constitution embodies the principle of “non-discrimination”.
Articles 14, 15 18 and 16 form a group of provisions that confer right of equality on each individual citizen and must be read conjointly.
19 These provisions specifically relate to gender equality which has been unequivocally recognised as a fundamental right.
20 Our Constitution guarantees ‘the trinity of rights’ i.e., right to life, gender equality, equality of status and opportunity to all citizens of the country irrespective of ‘sex’.
Articles 13, 14, 15 and 16 of the Constitution of India and other related Articles prohibit discrimination on the ground of sex.21 Hence it is mandatory to render socio-economic justice to women so as to ensure their dignity of person, to bring them into the mainstream of the national life.
22 The public policy and constitutional philosophy envisaged under Articles 38, 39, 46, 15(1) and (3) and 14 is to accord social and economic democracy to women as assured in the Preamble of the Constitution.
23 ‘Life’ in its expanded horizon encompasses all that makes a person’s life meaningful.
Therefore, integrating culture, heritage and tradition with ‘dignity of person’ becomes essential.
The fulfilment of that heritage in full measure would <https://ecollections.law.fiu.edu/faculty_publicati ons/94> accessed on 30/10/20.
18 C. B. Muthamma v Union of India AIR 1979 SC 1868.
Rule 8 (2) of the Indian Foreign Service (Conduct and Discipline) Rules, 1961 that required unmarried woman to seek permission from the government before getting married and also could be asked to resign if her marriage was found to be interfering with her efficiency at work, was declared to be violative of Article 15 of the Constitution.
19 Vijay Lakshmi v Panjab University (2003) 8 SCC 440, 442-3.
20 Vishaka v State of Rajasthan (1999) 6 SCC 241.
21 In Uttarakhand Mahila Kalyan Parishad and others v State of U.P.
1993 Supp (1) SCC 480, the preferential treatment to male teachers and male encompass the right to life.
For a meaningful and purposeful ‘life’ every woman is entitled to elimination of obstacles and discrimination based on gender for human development.
Women are entitled to enjoy economic, social, cultural and political rights without discrimination and on footing of equality.
24 “Right to life” under Article 21 embodies several aspects of life.
By expanding the scope of Article 21 the judiciary has played momentous role in furthering gender justice.25 The Directive Principle of State Policy provided under Article 39 (d) makes it obligatory on the state to provide equal pay for equal work and Article 51 (A) (e) imposes fundamental duty on every citizen to renounce practices derogatory to the dignity of women.
By virtue of Constitution (Seventy-third) Amendment Act, 1992 and Constitution (Seventy-fourth) Amendment Act, 1992 one-third reservation for women in local governing bodies like Panchayats26 and in municipalities27 has been introduced as a significant step towards political empowerment of the women at the grassroot level.
Judiciary has meaningfully contributed to promote ‘gender equality’ 28 through purposive interpretation of statutory provisions in a number of judgements, 29 employees was considered to be violative of Articles 14, 16(1) & (2) of the Constitution of India that provide for parity in employment, where the nature of job is same.
22 Madhu Kishwar v State of Bihar (1996) 5 SCC 125, 148-9 (‘Kishwar’) 23 Ibid 152.
24 Ibid 148.
25 See Vishaka v State of Rajasthan (1999) 6 SCC 241; Lata Singh v State of U.P.
(2006) 5 SCC 475.
26 The Constitution of India, Articles 243 D (3) and 243 D (4).
27 The Constitution of India, Article 243 T. 28 Joseph Shine v Union of India W.P.
(Criminal) 194 of 2017 (‘Shine’).
29 See Reema Aggarwal v Anupam Criminal Appeal No.
25 of 2004 wherein the Court favoured https://ecollections.law.fiu.edu/faculty_publications/94 https://ecollections.law.fiu.edu/faculty_publications/94 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 180 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… aligned with the spirit of the Constitution.
In order to uphold the validity of constitutional mandate, various women specific provisions have been provided in the Indian Penal Code, 1860 to address mental and physical violence against women, such askidnapping and abduction for various purposes including prostitution,30 rape,31 dowry death,32 mental and physical cruelty by husband and his relatives, 33 molestation, 34 acid attack, 35 sexual harassment, 36 disrobing, 37 voyeurism,38 stalking,39 procuration of minor girl40 and importation of girls from foreign country 41 .
Various women-centred legislations have been periodically enacted to address the socio-cultural discriminations faced by women in various spheres.
42 There has been a long-drawn struggle for gender justice, both within the domestic sphere and outside.
Despite strong resistance from social orthodoxy, the sustained efforts of several social reformers have succeeded in giving impetus to the cause of gender justice.
Constitutional provisions, legislations, and the judgments of courts have cumulatively made significant contribution towards the cause of gender justice.43 purposive approach to the relationship of ‘husband’ and ‘wife’, while asserting that legalistic approach would encourage harassment to woman over demand of money.
See also Koppisetti Subbharao v State of Andhra Pradesh Criminal Appeal No.
867 of 2009; and Richa Mishra v State of Chhattisgarh (2016) 4 SCC 179.
The Court in this case allowed age relaxation to the appellant for her selection to the post of Deputy Superintendent of Police.
30 The Indian Penal Code 1860 s 363-73.
31 Ibid s 376.
32 Ibid s 304-B.
33 Ibid s 498-A.
34 Ibid s 509.
35 Ibid s 326 A, 326 B.
36 Ibid s 354 A.
37 Ibid s 354 B.
38 Ibid s 354 C. 39 Ibid s 354 D. 40 Ibid s 366 A.
Positive Discrimination-Towards Gender Justice Women in general face various kinds of gender disabilities and discriminations.
The Constitution of India confers a unique status to women in terms of equality with men.
In reality, however, they have yet to go a long way to achieve this constitutional status.44 Our Constitution makers were wary of the multi-faceted discriminations, deprivations and socio-economic handicaps faced by women in our society in every sphere likesocial, cultural, economic, political etc.
With an object to strengthen and improve the status of women and to remove the ‘inequality’ and wide ‘disparity’ in the society, Article 15 (3) as a “special provision” was inserted in the Constitution, to enable the State to improve women’s participation in all activities under the supervision and control of the State in the form of either “affirmative action or reservation”.45 Thus, the State is empowered to negate and neutralise all kinds of disadvantages faced by women in the social matrix, through ‘positive-discrimination’.46 Article 14 ensures equality of law and prohibits invidious discrimination.
41 Ibid s 366 B.
42 The Hindu Succession (Amendment) Act 2005; the Maternity Benefit Act 1961 (as amended in 1995); The Dowry Prohibition Act 1961; The PreConception and Pre Natal Diagnostic Techniques (Prohibition of Sex-Selection) Act, 2001; The Prohibition of Child Marriage Act, 2006; The Protection of Women from Domestic Violence Act, 2006; The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013.
43 Justice Jitendra N. Bhatt, ‘Gender Justice: Human Rights Perspective Triumph or Turmoil; Victor or Vanquished’, (2006) 4, Supreme Court Cases (SCC) J-3, J-11(‘Gender Justice).
44 Richa Mishra v State of Chhattisgarh (2016) 4 SCC 179, 196.
45 Govt.
of A.P.
v P.B.
Vijayakumar (1995) 4 SCC 520 (‘Vijayakumar’).
46 The Constitution of India, Article 15 (3).
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 181 Arbitrariness and arbitrary exclusion are sworn enemies to equality.
Equality before law is possible amongst the subjects who are equal.
However, in case of evident ‘inequality’, positive measures are legitimately necessitated to bring them on par with each other, so as to be treated equally.
While Article 14 is a general provision and has to be read subject to the other fundamental rights; Article 15 (3) relieves the State from the bondage of Articles 14 and 15(1) and charges it to make special provision to accord socio-economic equality to woman.
47 Justice, equity and good conscience are integral part of equality under Article 14 of the Constitution which is the genus and Article 15 is its specie.48 Hence, any law that makes special provision for women or children under Article 15 (3) cannot be challenged as there is no inconsistency between Article 14 and 15 (3).
Article 15 (3) permits the State to positively discriminate in favour of women by making special provision to ameliorate their condition leading to social, economic and political justice.
Such positive provision accords parity to women, 49 and thus positively protects such acts or actions that are more favourable to women.
Such positive provision attains significance in a context where institutionalised discrimination appears to have disappeared only at the superficial level.
The mind-set and the repressive attitude ingrained in the subconscious remain the same.
Women are still subjected to all kinds of discrimination and prejudice.
They are still regarded as feeble, dependent and subordinate to men, and nothing seems to have changed.50 47 Thota Sesharathamma v Thota Manikyamma (1991) 4 SCC 312.
48 Kishwar (n 22) 159.
49 Ibid 145.
50 Charu Khurana v Union of India (2015) 1 SCC 192, 197 (‘Khurana’).
Therefore, besides the provisions for ‘equality’ and ‘non-discrimination’, Article 15 (3) was deliberately included to legitimise ‘positive discrimination’, i.e., to enable the State to enact special legislations/provisions in order to modify or abolish gender-based discrimination in the existing laws, regulations, customs and practices which constitute discrimination against women.
It requires strict scrutiny test to be applied while assessing the proposed aims and implications of such legislations.
The test to review such “protective discrimination statutes” on the ground of sex would entail a two-pronged scrutiny – a) the legislative interference should be justified in principle and b) the same should be proportionate in nature.
Such legislations potentially serve as double edged swords.51 Judicial Attitude towards Empowering Women In a recent case Richa Mishra v. State of Chhattisgarh, 52 the Hon’ble Supreme Court identified inverse relation between economic development and poverty.
The Court emphasised on a “bidirectional relationship” between economic development and women’s empowerment.
The Court opined that empowerment can accelerate development if women are given access to the constituents of development; particularly access to health, education, earning opportunities, rights, and political participation.
The Court further affirmed that such “real empowerment” complimented with “economic empowerment” would enable them to enjoy the rights guaranteed to them.
This will shift the focus from 51 D.D.Basu, Shorter Constitution of India, (LexisNexis Butterworths Wadhwa Nagpur, Fourteenth edn.
2009, Reprint 2014) 136.
(‘Basu’) 52 Richa Mishra v State of Chhattisgarh (2016) 4 SCC 179 (‘Mishra’).
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 182 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… “achieving better treatment” or “well-being of women” to “economic empowerment”.53 Empowerment is thus perceived in economic independence, self-reliance, and ability to participate in development activities.54 There is mutual interdependence and mutual reinforcement in the context of democracy, development and respect for human rights and fundamental freedoms.
Equal participation of women in political, social, economic and cultural life is concomitant with national development, social and family stability and all round growth.55 ‘Sex’ as Reasonable Classification ‘Sex’ has been accepted as a permissible classification with the realisation that it is not pragmatic to universalise or dogmatise equality of men and women in all situations.
It has been recognised that the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex, may compel selectivity.
Unless, where the differentiation is demonstrable the rule of equality must govern.
56 The substantive dimension of Article 15 (3) contemplates in its application, provision for special educational facilities, representation in local bodies and protection in places of work.
The underlying inspiration behind Article 15 (3) would be hit at the root, if job opportunities could ‘not’ be created under special provisions.
Making special provision for women in respect of employments or posts under the State has been considered to be an integral part of Article 15 (3).
57 In Vijay Lakshmi v. Panjab University and others 58 the Supreme Court while interpreting Articles 14 to 16 relied on the established propositions of law holding sex to be a sound 53 Ibid 196-97.
54 Ibid 197.
55 Valsamma Paul v Cochin University (1996) 3 SCC 545, 562.
56 C.B.
Muthamma v Union of India (1979) 4 SCC 260, 262.
57 Vijayakumar above (n 45).
58 (2003) 8 SCC 440. basis for classification.
In the light of Article 15(3) the State is categorically empowered to make special provision for women and children.
The Court approved of classification between male and female for certain posts.
Such classification cannot be said to be arbitrary or unjustified.
If separate colleges or schools for girls are justifiable, rules providing appointment of a lady Principal or teacher would also be justified as a precautionary, preventive and protective measure.59 Hence, rules empowering the authority to appoint only a lady Principal or a lady doctor or a lady teacher or a woman superintendent cannot be said to be violative of Article 14 or 16 of the Constitution.
Reservation of fifty per cent of the posts in favour of female candidates was held to be justified and nonarbitrary in view of large number of young girls below the age of ten years studying in primary school.
The Court considered it to be preferable for the young girls to be taught by women.60 Special provision for women to bring them on par with men in public employment needs to be acknowledged in the context of equality before law.
‘Equality before law’ is co-relative to the concept of rule of law for all round evaluation of healthy social order.61 The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position.
Varying needs of different classes of persons often require separate treatment.62 A woman in our society has various disadvantages and should not be denied employment merely on the ground that she is a woman.
Such a view would be violative of Article 14 of the Constitution.63 The twin Articles 15 and 16 59 Ibid 443.
60 Rajesh Kumar Gupta v State of U.P.
(2005) 5 SCC 172, 179.
61 Dalmia Cement (Bharat) Ltd. v Union of India (1996) 10 SCC 104.
62 Basu, abobe n 51, 81.
63 Air India v Nargesh Mirza AIR 1981 SC 1829, wherein the Hon’ble Court declared the provision Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 183 prohibit a discriminatory treatment but at the same time do not prohibit preferential or special treatment of women, which is a positive measure in their favour.
Giving meaningful exposition to the provision of ‘positive discrimination’ this Court in Air India Cabin Crew Assn.
v. Yeshaswinee Merchant64 held that difference in the age of retirement of male and female members of the crew cannot be said to be violative of Articles 14, 15, 16 and 51-A (e) of the Constitution.
The age of retirement for male crew members was fifty-eight years while the female crew members were allowed early retirement from flying duties at the age of fifty years.
They also had an option to accept ground duties beyond fifty years up to the age of fifty-eight years.65 Sexual Harassment at workplace ‘Sexual harassment’ is the infringement of fundamental right of woman to gender equality under Article 14.
It also violates her right to live with dignity under Article 21 of the Constitution that includes the right to safe environment free from sexual harassment.
Sexual harassment depicts the unequal power relations between men and women.
The women working in workplaces have a right to gender equality, to work with dignity and to a safe working environment.66 The meaning and content of fundamental rights in the Constitution is of sufficient amplitude to encompass all the facets of gender equality including prevention of sexual harassment or abuse.67 The Supreme by which the air hostess would lose the job on pregnancy and would retire at the age of 35 years as unethical, abhorrent, arbitrary and unconstitutional.
64 (2003) 6 SCC 277.
65 Ibid 302 6.
66 Vishakha v State of Rajasthan (1999) 6 SCC 241.
67 Ibid 251.
68 (1999) 1 SCC 759.
Court in Apparel Export Promotion Council v. A.K.
Chopra, 68 took a serious note of sexual harassment at the place of work.
According to the Court each such incident resulted in violation of fundamental right to gender equality and right to life and liberty.
The right of employment itself may not be a fundamental right but in terms of both Articles 14 and 16 of the Constitution of India, each person similarly situated has a fundamental right to be considered for same.
The gendered roles assigned to men and women in social and economic life are based on the conditioned perceptions about male and female sensuality which form the basis of commonly held beliefs or myths about sexual harassment.
69 Sexual harassment has been recognized as a kind of violence/gender discrimination against women by various international instruments.70 Sexual harassment of female at the place of work is incompatible with the dignity and honour of a female and needs to be eliminated.71 Discrimination in Employment Patriarchal manifestations in the form of ‘structures of control’ and ‘violence’ are evident at various levels of nation, household, as well as community.
Any threat to the sanctity of patriarchal state, household or community assumes significant projection in the form of ‘security’ and ‘protection’ justifying the male-centred power to take 69 ‘Year of Endeavour’, (2002) National Commission Women, 142.
70 General Recommendation no.
19 adopted by the CEDAW Committee in 1992; The United Nations Declaration on Violence Against Women, 1993; The International Labour Organisation (ILO) Seminar, 1993, Manila.
71 Apparel Export Promotion Council v A. K. Chopra (1999) 1 SCC 759.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 184 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… charge.
72 Discrimination in employment depicts the gender dynamics in the public sphere.
Differential treatment is legitimised on the basis of social needs and biological difference.
In a pathbreaking judgement, Secretary, Ministry of Defence v. Babita Puniya 73 the Hon’ble Supreme Court removed the discriminatory restriction on women officers to serve only in staff appointments, and granted them permanent commission in ten streams of combat support arms and services, bringing them on par with male counterparts in the army.
This decision marks a step towards realising the fundamental constitutional commitment.
The Court rejected all arguments “based on sex stereotypes” on the assumptions about “socially ascribed gender roles” and “physiological limitations” on employability of women officers which discriminate against women.
The Court underlined the need for change in mindsets to bring about true equality in the Army so as to enable women to enjoy benefits and status associated with seniority of rank.
In Neera Mathur v. LIC 74 , a female candidate was required to furnish information about her menstrual period, last date of menstruation, pregnancy and miscarriage.
The Court declared that calling of such information are indeed embarrassing if not humiliating.
The Court directed that the employer i.e.
Life Insurance Corporation to delete such columns in the declaration.
In Maya Devi v. State of Maharashtra,75 where the requirement of husband’s consent for 72 Navtej Purewal, Sex Selective Abortion, Neoliberal Patriarchy and Structural Violence in India, (accepted version) (2018) Issue 119, July Feminist https://eprints.soas.ac.uk/25115/1/purewal-SSAfeminist-review-2018.pdf.
The existing BJP Government has been condemned as a neoliberal state patriarchy, for actively promoting the strategic use of gender insecurity and violence for wife’s application for public employment was struck down as an anachronistic obstacle to woman’s equality and economic justice.
In Charu Khurana v. Union of India76, this Court considered the issue of gender discrimination in the matter of denial of membership of “Cine Costume Make-up Artists and Hair Dressers Association” in film industry.
It was held that discrimination solely on the basis of sex violates basic constitutional rights and infracts constitutional values and norms.
The sustenance of gender justice is the ‘cultivated achievement of intrinsic human rights’.
In the absence of equal opportunities at the threshold to enter into the sphere of profession, despite being eligible and qualified; equality in inconceivable.77 In Anuj Garg v. Hotel Assn.
of India,78 the Hon’ble Supreme Court has preferred “empowerment of women” over “putting curbs on women’s freedom” as a more tenable and socially wise approach.
The Hon’ble Court suggested that it should reflect in law enforcement strategies of the State in terms of providing security and safety.
The Court observed that no law in its ultimate effect should end up “perpetuating the oppression of women”.
The Hon’ble Court further emphasised on the importance of ‘personal freedom’ as a fundamental tenet beyond compromise, even in the name of expediency, otherwise than for a compelling State purpose.
The Court recognised right to selfdetermination as an important offshoot of gender justice discourse.
79 The Court exercising its political power at all levels of society.
73 Civil Appeal Nos 1127-1128 of 2013 and with Civil Appeal No.
1210 of 2020.
74 (1992) 1 SCC 286 75 1986 (1) SCR 743 76 (2015) 1 SCC 192.
77 Ibid 210-14.
78 (2008) 3 SCC 1.
79 Ibid 13-19.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 185 proposed to shift the focus of the test to review protective discrimination under Article 15 (3) from its objects and aims to the consequences and effects of legislation.
In this sense this case sets right ‘acontextual view of sex discrimination’ based on sex and ‘unquestioned protectionism’ of the state.80 While dealing with a sensitive issue of the discontinuance of prohibition of ‘bar dancing’ in certain establishments, the Supreme Court in State of Maharashtra v. Indian Hotel & Restaurants Assn.
81 noted that it would be better to ‘treat the cause’ than to ‘blame the effect’.
Prohibition on bar dancing would completely discontinue the livelihood of a large section of women, eking out an existence by dancing in bars, who would be exposed to other forms of exploitation.82 Disqualification to become a make-up artist by the Cine Costume Make-up Artists and Hair Dressers Association on ground of being a ‘woman’ has highlighted the prevalence of gender inequality in the film-industry, and has been regarded as offending the concept of gender justice.83 Social Justice There are number of social justice legislations that give special protection and benefits to vulnerable groups in the society.
The courts have to adopt different approaches in “social justice adjudication”, which is also known as “social context adjudication”.
It is believed that mere 80 Shreya Atrey, ‘Through the Looking Glass of Intersectionality: Making Sense of Indian Discrimination Jurisprudence under Article 15’ The Equal Rights Review, (2016) Vol.
Sixteen at https://www.equalrightstrust.org/ertdocumentban k/Through%20the%20Looking%20Glass%20of% 20Intersectionality%20Making%20Sense%20of% 20Indian%20Discrimination%20Jurisprudence%2 0under%20Article%2015.pdf174 81 State of Maharashtra v Indian Hotel & Restaurants Assn.
(2013) 8 SCC 519.
“adversarial approach” may not be very appropriate.
84 The courts have advocated purposive interpretation of the statutory provisions, in cases where the purpose is to achieve “social justice” in line with the constitutional vision, enshrined in the Preamble of the Constitution of India.
While giving interpretation to a particular provision, the court is supposed to bridge the gap between law and society so as to advance the cause of social justice.
85 It has been observed that while interpreting statutory provisions, in a socially relevant manner, constitutional empathy for the weaker sections like women and children must be reflected in it.86 With an expanded horizon in viewing gender justice, the Hon’ble Supreme Court took a very different perspective towards the offence of ‘adultery’ in a very recent pathbreaking judgement in Joseph Shine.87 The Hon’ble Court declared Section 497 of the Indian Penal Code, 1860 to be unconstitutional being violative of Articles 14, 15 and 21, as it considers women subordinate to men in as much in laying down that “when there is connivance or consent of the man, there is no offence”.
This treats wife as the “property” of husband and is a reflection of social dominance as the basis of such a penal provision.
The Court also refuted the basis of its legitimacy in protecting or preserving the sanctity of marriage, because having sexual intercourse 82 Ibid 591.
83 Khurana (n 50) 197.
84 Badshah v Urmila Badshah Godse (2014) 1 SCC 188, 196; see also Richa Mishra v State of Chhattisgarh (2016) 4 SCC 179.
85 Badshah v Urmila Badshah Godse (2014) 1 SCC 188, 196-9.
86 Capt.
Ramesh Chander Kaushal v Veena Kaushal (1978) 4 SCC 70, 74.
87 Shine (n 28).
https://www.equalrightstrust.org/ertdocumentbank/Through%20the%20Looking%20Glass%20of%20Intersectionality%20Making%20Sense%20of%20Indian%20Discrimination%20Jurisprudence%20under%20Article%2015.pdf https://www.equalrightstrust.org/ertdocumentbank/Through%20the%20Looking%20Glass%20of%20Intersectionality%20Making%20Sense%20of%20Indian%20Discrimination%20Jurisprudence%20under%20Article%2015.pdf https://www.equalrightstrust.org/ertdocumentbank/Through%20the%20Looking%20Glass%20of%20Intersectionality%20Making%20Sense%20of%20Indian%20Discrimination%20Jurisprudence%20under%20Article%2015.pdf https://www.equalrightstrust.org/ertdocumentbank/Through%20the%20Looking%20Glass%20of%20Intersectionality%20Making%20Sense%20of%20Indian%20Discrimination%20Jurisprudence%20under%20Article%2015.pdf https://www.equalrightstrust.org/ertdocumentbank/Through%20the%20Looking%20Glass%20of%20Intersectionality%20Making%20Sense%20of%20Indian%20Discrimination%20Jurisprudence%20under%20Article%2015.pdf Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 186 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… with a widow or an unmarried woman would not entail same penal consequences as having sexual relation with a married woman.
Rather this provision affirms the proprietary right of the husband over his wife.
The Court also found it to be violative of Article 14 and Article 15 (1) as it discriminates on the ground of ‘sex’.88 In another recent case the Hon’ble Supreme Court struck down the practice of ‘triple talaq’ to be arbitrary and violative of Article 14 as it allows marital ties to be broken capriciously and whimsically by a Muslim husband.
89 However, the Court seemed more concerned with ‘preservation of marriage’ than with ‘women’s rights’, therefore the judgement has been criticised for missing out on engaging with the intersectionality of gender and religious identity.
90 In yet another recent judgement Independent Thought, 91 the Hon’ble Supreme Court read down Exception 2 to Section 375 of the Indian Penal Code, 1860 and declared sexual intercourse with a wife below eighteen years of age to be rape.
However, the Court did not deal with the issue of marital rape otherwise.
In a recent historical judgement Indian Young Lawyers Association v. State of Kerala, 92 the five judge Constitution Bench with 4:1 majority struck down the exclusionary practice, backed by a rule, that 88 Overruling Sowmithri Vishnu v Union of India (1985) Supp SCC 137; V. Revathi v Union of India (1988)2 SCC 72.
89 Shayara Bano v Union of India Writ Petition (C) No.
118 of 2016, <https://www.sci.gov.in/pdf/LU/Supreme%20Co urt%20of%20India%20Judgment%20WP(C)%20 No.118%20of%202016%20Triple%20Talaq.pdf> accessed on 22/02/2019 (‘Bano’).
90 Tanza Herklotz, ‘Law, Religion and gender equality: literature on the Indian personal law system from a woman’s rights perspective’ (2017) Vol.
1, Issue 3 Indian Law Review <https://www.tandfonline.com/doi/full/10.1080/2 4730580.2018.1453750> accessed on 30/10/2020 91 Independent Thought v. Union of India Writ Petition Civil No.
382 of 2013, did not allow women in the 10-50 years age group to enter Kerala’s Sabarimala temple of Lord Ayyappa.
The rule was declared to be violative of the right of Hindu women to practise their religious beliefs which, in effect negates their fundamental right of religion under Article 25(1).93 The Court did not find favour with ‘patriarchy in religion’ that interferes with element of pure devotion and the freedom to practise and profess one’s religion.94 In Anil Kumar Mahsi v. Union of India,95 constitutionality of Section 10 of the Indian Divorce Act was challenged by an aggrieved husband to be discriminatory against husband.
It was claimed to be violative of Article 14, as it allows two grounds to the wife and not to the husband for seeking dissolution of the marriage.
The Court did not find any substance in the challenge.
The Court however, took note of the muscularly weaker physique of the woman, her general vulnerable physical and social condition and her defensive and nonaggressive nature and role particularly in this country.96 In view of the purpose of Section 125 Cr.P.C.
the Supreme Court in Savitaben Somabhai Bhatiya v. State of Gujarat, 97 pointed that it is enacted for social justice, especially to protect women, children, old and infirm poor parents, and thus falls within <https://www.sci.gov.in/supremecourt/2013/1779 0/17790_2013_Judgement_11-Oct-2017.pdf> accessed on 23/02/2019 (‘Independent Thought’).
92 Writ Petition (Civil) No.
373 of 2006, <https://www.supremecourtofindia.nic.in/suprem ecourt/2006/18956/18956_2006_Judgement_28Sep-2018.pdf> accessed on 23/ 02/2019.
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 was struck down by the Court (‘Young Lawyers’).
93 Ibid 94 Ibid 3.
95 (1994) 5 SCC 704.
96 Ibid 708.
97 (2005) 3 SCC 636. https://www.sci.gov.in/pdf/LU/Supreme%20Court%20of%20India%20Judgment%20WP(C)%20No.118%20of%202016%20Triple%20Talaq.pdf https://www.sci.gov.in/pdf/LU/Supreme%20Court%20of%20India%20Judgment%20WP(C)%20No.118%20of%202016%20Triple%20Talaq.pdf https://www.sci.gov.in/pdf/LU/Supreme%20Court%20of%20India%20Judgment%20WP(C)%20No.118%20of%202016%20Triple%20Talaq.pdf https://www.tandfonline.com/doi/full/10.1080/24730580.2018.1453750%3e https://www.tandfonline.com/doi/full/10.1080/24730580.2018.1453750%3e https://www.sci.gov.in/supremecourt/2013/17790/17790_2013_Judgement_11-Oct-2017.pdf https://www.sci.gov.in/supremecourt/2013/17790/17790_2013_Judgement_11-Oct-2017.pdf https://www.supremecourtofindia.nic.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf%3e%20accessed%20on%2023 https://www.supremecourtofindia.nic.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf%3e%20accessed%20on%2023 https://www.supremecourtofindia.nic.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf%3e%20accessed%20on%2023 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 187 the Constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution.
Its provisions are applicable and enforceable irrespective of the personal law by which the persons concerned are governed.98 In Prakash v. Phulavati 99 it was pointed out that in spite of guarantee of the Constitution, Muslim women are subjected to discrimination as there is no safeguard against arbitrary divorce and second marriage by her husband during currency of the first marriage, resulting in denial of dignity and security to her.
In Danial Latifi v. Union of India 100 the Constitution Bench held that Article 21 included the right to live with dignity which supports the plea that a Muslim woman could invoke fundamental rights in such matters.
In Githa Hariharan v. Reserve Bank of India 101 this Court while construing Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 considered the predominant object of the legislation in conjunction with the constitutional guarantee of gender equality and recognised equal status of mother as the natural guardian like father even during his life.102 Violence against Women and Article 21 Article 21 of the Constitution of India reinforces “right to life”.
Assault on a woman offends her dignity.
There is a phenomenal rise in crime against women.
Majority of women specific violent crimes are associated with her sexual vulnerability.
The protection 98 Ibid 640.
99 (2016) 2 SCC 36.
100 (2001) 7 SCC 740; see also Ahmedabad Women Action Group (AWAG) v Union of India (1997) 3 SCC 573.
101 (1999) 2 SCC 228.
102 Ibid 246.
103 Vajresh Venkatray Anvekar v State of Karnataka (2013) 3 SCC 462, 471. granted to women by the Constitution of India and other laws can be meaningful only if those who are entrusted with the job of doing justice are sensitised towards women’s problems.103 The most humiliating aspect of crime against a woman is that her status in the hierarchical structure of society also comes in the way of securing justice for her.
Thus, her social status compounds her gender injustice.
104 Rape is the worst form of intrusion of her privacy, both physical and mental and is a human rights violation and violation of right to life enshrined in Article 21 of the Constitution of India.
The offence of rape affects the dignity of a woman and covers right to dignity and reinforces protection against rape and other sexual infractions.
105 In view of International Covenant on Economic, Social and Cultural Rights; United Nations Declaration of Basic Principals of Justice for Victims of Crime And Abuse of Power 1985, rape survivors are entitled to legal recourse that does not retraumatise them or violate their physical or mental integrity and dignity.
They are also entitled to medical procedures conducted in a manner that respects to their right to consent.
There should be no arbitrary or unlawful interference with her privacy.
Two finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.
106 With a view to do gender justice, the Hon’ble Supreme Court has extended the protection of “right to life” even to a foreigner rape victim, thus laying down that they also have the right to live, so 104 Bhatt, ‘Gender Justice’, (n 43) J-11.
105 State of M.P.
v Munna Choubey (2005) 2 SCC 710; see also Lillu v State of Haryana, (2013) 14 SCC 643 at 648.
106 Lillu v State of Haryana 2013 (2) RCR (Criminal) 679, 682; see also State of Punjab v Ramdev Singh (2004 (1) RCR (Criminal) 345.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 188 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… long as they are here, with human dignity.107 Persistent ‘sexual and gender-based violence’ has serious implications on the communities in general and the victims and their families in specific.
Such violence adversely affects the development progress as its spill -over effect.108 The State is duty-bound to protect the fundamental rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.
Gang rape ordered by the community Panchayat for having relationship with a man from a different community is an offence resultant of the State’s incapacity or inability to protect the fundamental rights of its citizens.109 In Lata Singh v. State of U.P.
110 considering instances of harassment, violence and threats against young men and women who marry outside their religion or caste to be an infringement of right to life, freedom of conscience and expression, the Court expressed its concern towards such instances sometimes leading to “honour killings”.
IV.
GENDER JUSTICEDE JURE AND DE FACTO The constitutional commitment enforced through legislative measures coupled with pro-active judicial intervention has been instrumental in evolving a more liberal, equitable and fair paradigm of gender justice.
“Equality” and “discrimination” are antithetical to each other, still both have been reconciled through “positive discrimination” in favour of women to bring about equality between men and women.
The feminist 107 Chairman, Railway Board v Chandrima Das (2000) 2 SCC 465.
108 ‘Gender Justice’, United Nations Development Programme, <http://www.undp.org/content/undp/en/home/de mocratic-governance-and-peacebuilding/rule-ofjurisprudence in terms of Part III of the Constitution has, to a great extent succeeded in transforming the de jure entitlements into de facto entitlements towards achieving gender justice in real terms; thus making law a “living reality”.
The need of ‘gender justice’ is felt and understood in the context of ‘gender injustice’.
This ‘injustice’ is associated with ‘discrimination’, manifested in multiple deprivations faced by women from womb to tomb.
The nature of deprivations and discriminations are relative and pervade every stage and every aspect of life, i.e., social, economic, political, religious etc.
A pragmatic step towards achieving gender justice is to have ‘gender just laws’ that touch upon every aspect of female’s life.
Purposive approach towards interpreting these laws is a sine qua non for an equitable world.
In words of John Stuart Mill: The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.111 However, such ‘perfect equality’ still appears to be a far cry as the entire globe is afflicted with gender bias.
The Gender Social Norms Index released by United Nations Development Fund has reported that almost ninety per cent men and women across the world are biased against women indicating the latent obstacles in achieving equality law--justice--security-and-human-rights/genderjustice.html> accessed on 12/02/2019 109 Gang-Rape Ordered by Village Kangaroo Court in W.B., In re (2014) 4 SCC 786, 796.
110 (2006) 5 SCC 475.
111 Shine (n 28) quoting John Stuart Mill.
http://www.undp.org/content/undp/en/home/democratic-governance-and-peacebuilding/rule-of-law--justice--security-and-human-rights/gender-justice.html http://www.undp.org/content/undp/en/home/democratic-governance-and-peacebuilding/rule-of-law--justice--security-and-human-rights/gender-justice.html http://www.undp.org/content/undp/en/home/democratic-governance-and-peacebuilding/rule-of-law--justice--security-and-human-rights/gender-justice.html http://www.undp.org/content/undp/en/home/democratic-governance-and-peacebuilding/rule-of-law--justice--security-and-human-rights/gender-justice.html Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 189 ‘despite decades of progress closing the equality gap between men and women’.112 There is sufficient evidence of the positive role played by the judiciary in recent years in addressing those issues, which were hitherto, seen with ‘gendered’ perspective and hence, subversive to womanhood.
Some of the most important developments in law in the recent times have changed the social matrix.
Most of the developments are concerning very basic aspects of life, i.e.
right to life, right to safe environment, both inside and outside home, right of mother as the legal guardian of child etc.
For example, the genesis of law for the prevention of sexual harassment is owed to the judicial creativity in Vishakha.113 While Delhi Rape Case114 galvanised the State to come up with the Criminal Law (Amendment) Act, 2013 adding a range of sexual offences against women and enhancing punishments for deterrence.
Directions have been periodically issued by the Hon’ble Supreme Court to enable proper implementation and follow up of the Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 to curb female foeticide.
115 ‘Mother’ was recognised as a natural guardian during lifetime of father in 112 ‘2020 Human Development Perspectives, Tackling Social Norms: a game changer for gender inequalities’ United Nations Development Programme (UNDP),< http://hdr.undp.org/en/gsni> accessed on 22/07/2020.
113 Vishaka v State of Rajasthan (1999) 6 SCC 241.
114 Mukesh v NCT of Delhi Cr.
Appeal Nos.
607-608 of 2017, arising out of S.L.P.
(Cr.)
Nos.
3119-3120 of 2014 available at <https://www.sci.gov.in/jonew/judis/44879.pdf> accessed on 24.02.2019.
115 Centre for Enquiry into Health and Allied Themes v Union of India, (2001) 5 SCC 577; Voluntary Health Association v State of Punjab (2013) 4 SCC 1.
116 Gita Hariharan v Reserve Bank of India (1999) 2 SCC 228.
117 ABC v State (NCT of Delhi) (2015) 10 SCC 1.
Gita Hariharan116, and unwed mother was recognised as the sole legal guardian of the child even without father’s consent.
117 The Hon’ble Supreme Court directed formulation of scheme for awarding compensation to the rape victims; 118 struck down the rules prohibiting women from entering Sabrimala temple119; declared sexual intercourse with a minor wife to be punishable as rape120, and declared adultery 121 and practice of triple talaq 122 to be unconstitutional.
Such progressive judgements have received perceptible general public support, and have certainly prompted the populace to accept and welcome the positive changes.
However, there are areas that still remain unchanged despite judicial initiative.
For instance the Court in Seema v. Ashwani Kumar 123 directed to make registration of marriage compulsory, but there is no headway in this regard so far.
In rape cases, resulting in pregnancy, the courts are still adhering to pedantic approach to the disadvantage of victim, disallowing termination beyond twenty weeks, protracting the suffering of the victim.
124 Declaring offence of adultery as unconstitutional still leaves an open question that requires conscientious deliberation 118 Delhi Domestic Working Women’s Forum v Union of India (1995) 1 SCC 14.
119 ‘Young Lawyers’ (n 82).
120 ‘Independent Thought’ (n 81).
121 ‘Shine’ (n 28).
122 ‘Bano’ (n 89).
123 (2006) 2 SCC 578, wherein the Court had directed to make registration of marriage compulsory that would help in curbing child marriage and fake marriages.
124 It is only in a few judgements the Supreme Court has allowed termination of pregnancy on ground of risk to physical health of the mother, e.g., in X v Union of India (2016) CWP 593 (IND); Chandrakant Jayantilal Suthar v State of Gujarat, (2015) 8 SCC.
124 State v Shanker CNR No.
: CHCH010097132017, Sessions Case No.
169 of 10.10.2017 Date of Decision: 31.10.2017. http://hdr.undp.org/en/gsni https://www.sci.gov.in/jonew/judis/44879.pdf Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 190 | Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate… whether it is going to improve the condition of women where the husbands are in relationships outside marriage?
These delicate areas affecting domestic and personal sphere, where the issues are most intimate, sensitive and crucial to the autonomy of women, have much scope for judicial ingenuity.
V. CONCLUSION AND SUGGESTIONS There is sufficient account of injustice suffered by women in the name of gender that has been periodically addressed by the judiciary in India.
The negative association of ‘gender bias’ with female sex can be evidenced right before birth where the ‘being’ of a girl is unwelcome primarily due to ‘social’ factors like low social status, practice of dowry, violence against women etc.
The judiciary has pro-actively dealt with pre-conception and pre-natal sex selection with iron hand to ensure the implementation of law prohibiting the same.
The judiciary in India has attempted to assail the patriarchal structure of society that has practically seeped into the lives of women in different forms at all levelsfrom private and most intimate, to the public sphere.
Catena of judicial pronouncements have addressed the issues relating to marriage, property rights, guardianship, etc governed by the discriminatory personal laws in the personal sphere and matters relating to employment, violence and social entitlements, in the public sphere.
Holding the provision of adultery as unconstitutional, for derogating woman as the property of man, came as a blow to the patriarchal mindset, that asserts the primacy and superiority of the male in the institution of marriage.
Reading down the exception to the provision of rape of wife below eighteen years of age has been another important stride in dismantling the non-porous wall of marriage as an institution that promotes the dominance of male.
From merely being the sentinel of the constitutional principles and values, the Indian judiciary has evolved as the protector of the rights of women as ‘individuals’.
Judiciary has expanded the scope of fundamental rights pertaining to equality, dignified life, economic justice, political representation and physical protection that has gone a long way in changing the lives of women.
Lately the Hon’ble Supreme Court has adopted the purposive interpretation of statutory provisions, side-lining the pedantic legalistic approach in dispensing with the justice to the women.
The inequalities caused by gender injustice(s), repression and subordination of women have been recognised by the judiciary as major factors hampering the economic development of the nation.
Such positive and progressive attitude of the judiciary has paved the way for women to ‘equality’ in employment; be it addressing sexual harassment at the workplace or otherwise granting equal treatment in different kinds of employments such like bar dancing, makeup artist in film industry or even the armed forces.
The judiciary, through its judgements has manifested a certain level of social wisdom that has helped in evolving a ‘gender sensitive’ jurisprudence.
This has been made possible due to the pragmatic approach adopted by the judiciary in the enforcement of “intrinsic human rights” and at the same time being mindful of the practical reality of women in our patriarchal social set up.
Judiciary’s function is to create a bridge between law and society in order to advance the cause of social justice.
In recent years the judiciary has showcased the combination of constitutional empathy and social relevance in interpreting the statutory provisions.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Gupta Judicial Exposition of Gender Justice as a Constitutional Mandate…| 191 In the end it may be concluded that law is certainly not the panacea for all ills, but it does contribute in taking affirmative action towards achieving gender justice.
Progressive laws and their purposive interpretation go hand in hand in introducing ‘positive conditioning’ and ‘positive perspective’ to look at gender issues in a ‘different’ way, that might not be palatable to the hardcore patriarchs.
Nonetheless, on various occasions our judiciary has challenged the patriarchal norms and archaic laws that have been responsible, over the ages, for the subjugation of women.
The judicial exposition of laws has kept the spirit of Constitution alive by striking down the arbitrary rules that reinforce gender prejudices inherent in the society.
This has given a fresh and more progressive outlook to gender justice that would gradually lead to equality between men and women in all possible ways.
It is hoped that constitutional commitment advanced by “legal creativity” will gradually succeed in attaining “perfect equality” to a great extent.
The blend of judicial creativity and social acceptability of the new perspectives presented by the judiciary would be a sine qua non for the real transformation.
In order to accelerate the contributions of judicial endeavours in this regard, it is important to address gender issues from the perspective of economic empowerment through policy making, gender-budgeting and empowering women at the grass-root level.
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54 | DOI: http://doi.org/10.21776/ub.blj.2021.008.01.04 Alternative Dispute Resolution (ADR) Hybrid in Cameroon as a Form of Legal Protection for Consumers of Defective Products Egute Matthew Amandong Department of English Law, Faculty of Laws and Political Science University of Yaounde Ii, Soa – Cameroon Email: mathewegute@gmail.com Submitted : 2021-03-25 | Accepted : 2021-04-27 Abstract: As part of the awareness creation exercise, this paper seeks to establish that consumers of defective products in Cameroon should be exposed to the various extra-judicial channels once they can be adopted by Government and through which the consumers can enforce their rights.
This is known as Alternative Dispute Resolution (ADR).
The paper argues that, considering the difficulties encountered by the consumer within the adversarial system, the non-judicial mechanisms are more impactful and satisfactory to consumers than the judicial.
It is equally argued that the judicial mechanisms depict a certain level of risk taking, that is, the risk of winning or losing and hence going without a remedy.
This risk factor is much lower in the non or extra – judicial system or mechanism which reveals that in appropriate circumstances, the producers using the good customer relation basis, are minded to compensate even where the consumer’s claim is baseless.
In this wise, it is therefore necessary to encourage the utilization of the extra judicial mechanisms in resolving consumer complaints.
Expediency, speed and low cost no doubt support this call.
Keywords: alternative dispute resolution; adr hybrid; legal protection; consumer of defective product.
I.
INTRODUCTION Over the years, litigation, a Western idea and concept of dispute resolution and justice dispensation, has held sway.
The training and orientation of legal practitioners in Europe and America lend credence to this assertion.
The peculiar focus or the usual call is for judicial intervention through adversarial procedure in the resolution of disputes between individuals inter se, consumers and producers, companies, as well as between individuals and the State.
With the demise of colonialism and the attainment of political independence, adjudicatory process of dispute resolution became a long lasting legacy of the British and French to the Cameroonian bi-jural legal http://doi.org/10.21776/ub.blj.2021.008.01.04 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 55 system.1 Yet, evidence abounds as to the existence of acceptable traditional methods of dispute resolution in the then British and French colonies.
However, the experience under colonialism and the manipulation of an average educated Cameroonian at the time, blindfolded him from realizing the beauty and wisdom behind his age – long traditional methods of resolving disputes, including disputes involving defective products2, which predated the arrival of the British and the French in the land mass constituting the present day Cameroon.
Thus, the adjudicatory system was accorded such orchestrated importance to the detriment and peril of the traditional African dispute resolution process of mediation, reconciliation, negotiation and arbitration.
This paper therefore seeks to examine the general nature of the adversarial system, the historical antecedence of the modern ADR, reasons for the choice of ADR as a consumer3 redress mechanism in defective products4 related cases, hybrids of ADR.
II.
LEGAL MATERIALS AND METHODS This paper used normative methodology, which examines the 1 The bi-jural legal system in Cameroon is comprised of the Common Law, introduced in Anglophone Cameroon by Great Britain and the Civil Law, introduced in Francophone Cameroon by France, following the defeat of Germany in Cameroon, a former German Protectorate in 1916.
This was followed by a partition of Cameroon between Great Britain and France under the supervision of the League of Nations.
It is in respect of the partition that the two European Nations were able to impose their legal systems in their respective territories.
2 According to Article 1386 (4) of the French Civil Code, defective products are products that constitute imperfections that render them unsuitable for the purpose for which they were demanded.
3 Section 2 of the 2011 Cameroonian Consumer Protection Law defines a consumer as: Any person regulations or law regarding ADR and also general nature of the adversarial system, the historical antecedence of the modern ADR.
It adopted the statute approach to examines relevant legal framework and also used case approach to examine more detail and deeper to help answer research problem.
Moreover, the legal materials used in this paper include ADR instrument law in Cameroon and other states and also several cases regarding ADR in Cameroon.
III.
RESULT AND DISCUSSIONS The adversarial system The adversarial system is at the core of the common and civil law systems of civil justice as practiced in the United Kingdom and France and “received” in Cameroon.
It is a colonial legacy that still pervades most commonwealth and French speaking countries.
According to Dele Peter:5 “Adversarial system is a system for the attainment of justice according to law through the intervention of a supposedly neutral third party who through the intervention of the law as a judge pronounces upon the rights, obligations and liabilities of each litigant before him.
This procedure portends that justice who uses products to meet his own needs and those of his dependents rather than to resell, process or use them within the context of his profession, or any person enjoying the services provided.
4 According to Article 1386 (4) of the French Civil Code: A defect is an imperfection that renders the product unsuitable for the purpose for which it was demanded.
Defective products are products that contain vices that may or may not be hidden and the vices must render the products unsuitable or unfit for their intended purposes.
5 Dele Peters, Alternative Disputes Resolution, Published in New Perspectives in Law – Essays in honour of Honourable Justice Terna Fefa Puusu (Chief judge of Benue State – Nigeria), (2005), Published by Dee – Sage Nigeria Ltd. Lagos, at p. 390.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 56 | Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon... must be dispensed according to the laid down rules of the law” The outcome of such a system is perhaps undoubtedly legal justice, justice according to the law, which may definitely not be a reflection of the social realities.
The system as old as it is in Cameroon may be subjected to the following criticisms: Firstly, apart from the fact that the search for justice is always an elusive ideal, legal justice in Cameroon with respective to relatively defective products has become more formalistic and technical and most meritorious claimants have lost their cases because of the technicalities involved as well as the lack of expertise knowledge involved in the production of some of the offensive products.
To this effect, proof of fault or causation has never been easy on the part of the injured consumers and plaintiffs.
For instance, in the case of Elsie Elange Ndua v. Brasseries du Cameroun6, the court pointed out that the victim, who was allegedly injured by the product of the defendants she consumed, ought to have carried out a laboratory analysis of the drink as proof of its defectiveness and also further scientific tests to show that what she allegedly consumed was the effective cause of her ailment and her action failed.
Furthermore, in the case of Maxebong Hope Sone v. Ikoe Esoe David and Guinness Cameroon7, the plaintiff’s action failed, as the court held that the allegation against the defendants could not be proved.
While in the Douala Court of Appeal case of SATOM Cameroon v. G.C.E8, it was held inter alia that where fault cannot be established, the defendant must be exonerated from liability and the plaintiff lost 6 Suit No.
BM/35//95 96 (Unreported) 7 Suit No.
HCK /12/97 (Unreorted).
8 C.A.
Douala : Arret No.
12/Cdu 18 Octobre, 1991.
9 Suit No.
CASWP/14/79 (Unreported).
the case.
In addition to the above, in Brasseries du Cameroun v. John Mokake Elali9, the Buea Court of Appeal found drinks allegedly supplied by the appellants to be defective, but nevertheless set aside the judgment of the trial court on the grounds that the respondent could not show that he actually consumed the said product.
These complexities become more chronic and costly for consumers of defective products as litigation goes up the judicial pinnacle, thereby making judicial proceedings both mysterious and daunting for most consumers.
In the mist of these difficulties faced by consumers, arising from the technicalities insisted upon by the courts, we may argue that ADR as a consumer redress mechanism in Cameroon will be very imperative and thus solicited.
Secondly, in Cameroon, a litigant’s success in court in trials involving defective products is again dependent on a series of variables and factors.
For instance, the concept of legal practice may, to a large extent, depend on the calibre of the Attorney which a litigant can afford to pay for and hence the monetization of justice and the aphorism that justice is for the highest bidder10.
This has invariably and adversely affected the perception of the poor and the down trodden members of the society who cannot afford what it takes, in monetary terms, to obtain justice.
This has led to the loss of confidence in the system.
Mr. Justice Arthur Vanderbilt expressed the same view rather bluntly as follows: “ …it is the courts and not in the legislature that our citizens primarily feel the keen, cutting edge of the law.
If they have respect for 10 Ayua.
I.A., ‘Nigerian Legal Profession : Problems and Prospects’, in Ayua (ed.)
Law, Justice and Nigerian Society, NIALS Commemorative Series I, (Nigerian Institute of Advanced Legal Studies, Lagos, 1995) at p. 6.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 57 the work of the courts, their respect for law will survive the shortcomings of every other branch of government.
But if they lose their respect for the work of the courts, their respect for law and order will vanish with it to the great detriment of society”11.
Thirdly, it has been noticed that under the adversarial system in Cameroon, most lawyers tend to obstruct the course of justice through frequent vexatious adjournments and appeals.12 They sometimes tarnish the evidence which is favourable to the opposition while at the same time suppress evidence favourable to opponents as well as prevent the falsity of evidence on his own side to be discovered.
In this wise, the adversarial system generally in Cameroon is not very perfect and to this end we call for reforms and perhaps ADR as alternative to the system most especially in the area of consumer protection law.
Lastly, the lengthy periods adopted by the courts in Cameroon in resolving product liability cases is not quite favourable to the consumer.
Hence, the need for a faster means of adjudication in favour of the consumer.
We may support our argument here with the case of Ntum George Nde v. Brasseries du Cameroun13, a case considered to have exposed the waton delay orchestrated by our courts in the dispensation of justice with respect to products contaminated by foreign materials.
A case that was initiated at the High Court of Limbe of the South West Region in 2001and up till 2020 it is still pending before the Supreme Court of Cameroon for final judgment.
In that case, 11 Vanderbitt .A., The Challenge of Law Reform (Princeton University Press, 1955) pp 4 – 5.
12 See also: Herbert Smith Freehills, A MultiJurisdictional Review: Dispute Resolution in Africa, Legal Guide Second Edition, (Herbert Smith Freehills , 2016), p 50-57, online access: the plaintiff consumed a “33 Export” drink manufactured by the defendants Brasseries du Cameroun, which drink was found to be contaminated with foreign materials.
The trial court in a seasoned and sound water tight judgment found in fovour of the plaintiff.
But the judgment of the High Court was reversed by the Buea Court of Appeal.
Aggrieved by the judgment of the Court of Appeal, the Appellant filed an appeal at the Supreme Court in 2010 and final hearing is still pending.
The burning question is, after about 20 years, is the appellant still alive and even if he is still alive, is he still interested in the case?
Will he still be very healthy enough to travel to and from Yaounde when the Supreme Court shall finally commence hearing, including adjournment periods?
Even at this juncture, no one knows when the Supreme Court shall be ready to hear this appeal.
In the light of the foregoing, it is arguable that the adversarial system in certain situations does not reflect the social realities expected by the consumers of defective products in Cameroon.
This is due to the very lengthy periods taken by the courts in most cases within the adversarial system in rendering judgments.
For, in the Ntum George Nde case discussed above, the very lengthy period taken by the courts definitely cannot meet the social realities expected by any consumer of defective products, for the adage is that “justice delayed is justice denied”.
In this vein, the ADR hybrid as a form of legal protection will be more realistic and acceptable because of speed and its low cost.
https://www.herbertsmithfreehills.com/sites/conte nthub_mothership/files/Guide%20to%20dispute %20resolution%20in%20Africa_w_bookmarksv2 .pdf 13 Suit No.
CASWP/5/2005 (Unreported).
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In yet another Cameroonian case Nkeh Napoleon v. Folepia Thomas and Guinness Cameroon.
S.A.14, the plaintiff in early March 2000 initiated a suit against the defendants at the Bamenda Court of First Instance, claiming damages for injuries resulting from the Consumption of a defective drink – Satzenbrau beer allegedly manufactured by the defendants.
It is very curious to note that up till date, the case is still pending before the trial court for hearing and it goes without saying that justice delayed is justice denied.
Considering the above listed difficulties faced by the consumers of defective products in Cameroon, ADR appears to be the only panacea or a better choice of a consumer redress mechanism.
This will serve as an alternative to the traditional judicial process that will be more relevant given that its mechanisms are cheaper, more informal, quicker, more user – friendly than the courts, and promote a more holistic reconciliatory approach to disputes.
Historical antecedence of ADR The total dissatisfaction of the public with the adversarial model of dispute resolution led invariably to the evolution of the alternative mechanisms for dispute settlement.
The acronym ADR means Alternative Dispute Resolution, a group of flexible approaches to resolving disputes more effective, quickly and at lower cost than going through the tedious roads of 14 Suit No.
BA/52/99 – 2000(Unreported).
15 Joseph Nwazi, ‘Assessing The Efficiency of Alternative Dispute Resolution (ADR) in The Settlement of Environmental Disputes in The Niger Delta Region of Nigeria’, (2017) 9(3), Journal of Law and Conflict Resolution, p. 27 16 See Goldberg, et al, Dispute Resolution, 2nd ed.
(Little Brown & Co. Boston U.S.A, 1997).
17 Law Reform Commission, Alternative Dispute Resolution: Mediation and Conciliation, (Report, Law Reform Commission, 2010), p.13 adversarial proceedings.15 It is a term which has become associated with a lot of specific dispute resolution options such as Arbitration, Conciliation, Mediation, Negotiation and a lot of other hybrid mechanisms16.
Some argue that “ADR involves the assistance of a neutral third party, and which empowers parties to resolves their own disputes”17.
The historical evolution of the modern alternative movement is very instructive.
Beginning in the sixties, a number of developed countries such as the United States and Australia witnessed an extra – ordinary growth of interest in alternative form of dispute resolution18.
Interest increased substantially in the seventies and at the 1979 Pound Conference in Minnesota, leading jurists and lawyers came together to address popular dissatisfaction with the crowded justice system19.
It was at this conference that Professor Frank.
E. A. Sander, an astute crusader of alternative dispute resolution proffered a radically different vision of the American Justice System in the name and style of the “Multi – Door Court House”.
Professor Sander’s Multi – Door Court House concept is a court – connected ADR programme, which provides a comprehensive approach to dispute resolution.
The concept posits that the ideal court house is a multifaceted dispute resolution center which offers disputants a number of options or “doors” through which 18 See Dele Peters, above n 5, at p. 399.
19 See Kehinde Aina, ‘The Lagos Multi – Door Courthouse and the judge: A New Beginning’, (2004) Modern Practice Journal of Finance & Investment Law MPJFIL 8 nos.
3-4 at 340; see also: Yoshai Boyarin, ‘Court-Connected ADRA Time of Crisis, A Time of Change’,(2012) 95(3), Marquette Law Review, p. 996-997 Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 59 disputants may pass to get to the appropriate dispute resolution process.
In the United States and so many European countries, the use of ADR has been encouraged and has found increasing favour.
There are a number of reasons for this trend.
The level of litigation in the United States for instance has grown to enormous proportions and the courts are so full that very long delays in obtaining trials date are common.
The costs of litigation are equally high and are not ordinarily recoverable; and very high awards are often granted, making litigation an extremely hazardous exercise20.
In a bid to over-come the above listed problems, the United States and many European countries adopted the ADR system due to its low cost, speed, less complexity and satisfaction, all to the advantage of the plaintiff ( in our case, the consumer of defective products).
Similar problems are being faced by disputants in Cameroon, including consumers of poor quality products and we intend to argue in this paper that an adoption of the ADR system will serve as a panacea as well as a choice of consumer redress.
In a bid to upgrade the ADR system and make it more meaningful, Cameroon with 16 other African countries in 1993 enacted the OHADA Treaty (also known as the Organization for the Harmonization of Business Law in Africa) in Port Louis(Mauritius), better known by its French Acronym as L’Organisation pour L’Harmonisation en Afrique du Droit des Affaires.
The Council 20 Brown .H.
& Marriott : ADR Principles and Practice, (1993), Sweet & Maxwell at 9 21 Member countries include; Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Democratic Republic of Congo, Equatorial Guinea, Gabon, Guinea Bissau, Cote d’Ivoire, Mali, Niger, Senegal and Togo.
22 The OHADA Uniform Act on Mediation, adopted on 23rd November 2017 in Conakry (Guinea), entered into force on March 2018. of Ministers of OHADA21 adopted three major tools aimed at favouring alternative dispute resolution mechanisms in African countries – (i) a new Uniform Act on Mediation22, (ii) a Revised Uniform Act on Arbitration23, and (iii) undated Rules of Arbitration of Common Court of Justice and Arbitration (CCJA)24.
OHADA is an international organization composed of 17 West and Central African Countries whose goal is to promote regional economic development through the harmonization of its member states business laws.
Harmonization is mainly achieved through the so called Uniform Acts which compiled all relevant legal norms in specific areas of business.25OHADA relies on specific institutions such as the CCJA which is an arbitral institution and assumes the role of a Supreme Court in all disputes regarding the application of the Uniform Acts.
It should be noted that its headquarters is in Abidjan and ordinary litigants and consumers in Cameroon will hardly have access to this institution.
Thus, only big companies and entrepreneurs can easily have access to the CCJA.
To resolve this difficulty, litigants of defective products in Cameroon will be more exposed to ADR mechanisms which are locally provided.
The ADR mechanisms equally provided by the OHADA Treaty are more inclined to business in general rather than issues of consumer protection involving defective products between local consumers and producers within the country.
23 The Revised OHADA Uniform Act on Arbitration was adopted on the 23rd of November 2017, replacing the initial Text of March 1999.
24 The Revised CCJA Rules on Arbitration was adopted on the 23rd of November 2017.
25 It should be noted that the OHADA Treaty was ratified in Cameroon by a presidential Decree No.
96/177 of 5th September 1996 after the authorization of the National Assembly through Law No.
94/4 of August 1994.
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In addition to the OHADA Treaty, Cameroon has two other local arbitration institutions or centers GICAM26 and the Chamber of Commerce.
GICAM is based in Douala and it is the foremost arbitration institute in the country and most of the arbitration disputes are between companies.
While issues of defective products mostly involve individuals (consumers) and producers, their disputes are often settled by the ordinary courts of the land.
Because of the congestion of matters in the ordinary courts and the general problems encountered within the adversarial system of adjudication, our main objective in this write-up is geared towards tracing other alternative means of settling defective products related disputes between consumers and producers.
Here, we are referring to alternative means of settling disputes.
These are possible and realistic mechanisms that will go a long way to assist a litigant of defective related products in Cameroon to obtain satisfactory results.
Reasons for the choice of ADR as a consumer redress mechanism for defective products in Cameroon.
It is in the search of alternatives to the traditional judicial process that ADR becomes relevant given that its mechanisms are cheaper, more informal, quicker, more user-friendly than the courts, and promote a more holistic, reconciliatory approach to disputes.
The argument for the adoption of ADR, therefore, centers on the fact that it will give consumers of defective products in Cameroon an involvement in the process of resolving their disputes that is not 26 Centre d’arbitrage du Groupement interpatronal du Cameroun.
27 See also the views of The Rt.
Hon.
The Lord Mackay of Clashfern, The Administration of Justice: The 1993 Hamlyn Lectures (Stevens & Sons/Sweet & Maxwell: London, 1994) pp 69-70. possible in a public, formal and adversarial justice system perceived to be dominated by the abstruse procedures and recondite language of law27.
Consequently, the ADR system offers choice, that is, the choice of procedure, method, cost representation and location28.
We agree with the view expressed by Ladan29, Where he says ‘ADR’ is “a useful shorthand expression as long as it is understood to refer to a system of multioption justice in which a wide range of dispute resolution processes are available to parties in the public system”.
It is equally submitted that ADR is perhaps better understood when viewed as “African Dispute Resolution”.
This would invariably refer to diverse party-friendly, cost effective and non adversarial methods of dispute settlement in the traditional African setting as opposed to litigation – centered approach of the West.
These diverse African Dispute Resolution Methods such as negotiation, conciliation and mediation will help to maintain peace and create an enabling environment for good relationship and neighborliness and maintain on-going relationships between consumers and producers in Cameroon.
From the foregoing, the ADR mechanisms are more common with non judicial institutions like trade and professional associations or with regulatory agencies like consumer control bodies.
These consumer control bodies are less common with the courts.
If any, their effectiveness may be thwarted by the court.
For example, in the Nigerian case of Commercial Assurance Ltd. v. Ali30, the Court of Appeal 28 Ibid at p. 70.
29 ‘Alternative Dispute Resolution in Nigeria: Benefits, Processes and Enforcement’, Current Themes in Nigeria Law, at 248.
30 (1986) 3 NWLR (pt.
29) 404.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 61 held that a contentious enforcement of an arbitral award should be by way of a writ of summons rather than the simple and quicker originating summons.
The advantage of speed which the arbitral award sought to achieve was consequently defeated.
In this vein, the call for ADR mechanisms in resolving defective products related matters becomes imperative in Cameroon.
Finally, ADR mechanisms could also be very useful to the producers in that cases involving defective products which could have damaging effects if heard in the open courts are decided under restricted and closed doors not involving the public.
Hybrids of Alternative Dispute Resolution a.
Negotiation Negotiation which is from the Latin expression “negotiatus”, is perhaps the commonest of the diverse methods of dispute resolution.
It is also the oldest of these dispute resolution processes.
Usually, when deterioration becomes noticeable in a relationship and as long as the parties concerned are still communicating, the situation could be stopped from developing into a full blown dispute.
Even at a point of full blown dispute, in most cases, efforts are sometimes made to resolve that dispute through “talking to each other”, that is, negotiating.
On the other hand, negotiation seeks to establish the state of liability in issue but with a view to realigning such liabilities.
There is no dispute as to the existence, nature or 31 For more on this, see the Article Resolving Consumer Disputes: Alternative Dispute Resolution and the Court System available at < https://assets.publishing.service.gov.uk> See also Office Fair Trading 1267.
2010 Mapping UK Consumer redress: A summary guide to dispute resolution system at 1.
32 Bryan A. Garner, Black’s Law Dictionary, 10th ed.(Thomson Reuters Publishers U.S.A., 2014) at p. 1200. quantum of the liability.
All that the debtor wants is to realign or negotiate how to meet his liability.
The appropriateness of this mechanism will depend on the circumstances of each case.
For instance, where a consumer claim is for a sum certain31 or for a replacement of the defective product, it does appear that negotiation will be the most ideal.
Thus, according to Black’s Law Dictionary, “negotiation is a consensual bargaining process in which the parties attempt to reach agreement on a disputed or potentially disputed matter”32.
Negotiation is thus a voluntary unstructured and usually private process through which the consumer and the producer already in dispute can reach an agreement for the resolution of their disagreement.33 It is usually an informal dispute resolution process in which disputants have a firm and total control of the entire arrangement.
The success or failure of this process, more often than not depends entirely on the disputants themselves since the process offers an opportunity for them to talk on one on one basis.
A common feature of negotiation is the absence of a third party facilitator.
Disputants personally present their case, marshal arguments and lead evidence.
They may or may not appoint individuals or professionals such as lawyers to represent their interest34.
The totality of the foregoing attributes of this dispute resolution hybrid has endangered the explanation of negotiation as the fastest, least expensive, most private, less complicated and most 33 See the Cameroonian case of Kimbeng Nde Richard v. Guinness Cameroon .S.A., Suit No.
HCB/42/03 – 04 (unreported).
In that case, the plaintiff consumed a defective product – Guinness Drink, produced by the defendants.
Curiously, the parties after exchanging the statement of claim and statement of defence opted for an amicable settlement of 1.000.000 FCFA through negotiation.
34 See generally Goldberg, et al, above n 16 https://assets.publishing.service.gov.uk/ Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 62 | Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon... party-control oriented process.
This of course can rekindle consumers to be more interested in product liability related issues and cases, owing to the long and expensive procedures often adopted by the courts.
b.
Mediation Mediation on the other hand is negotiation carried out with the assistance of a neutral third party.
It is a voluntary process, which offers disputants meaningful and creative solution at a fraction of the cost of the litigation system35.
Thus, where relationships are involved, the best course will be mediation since that targets the restoration of strained relationships.
In other words, mediation is a facilitative process in which an injured consumer of a product and the manufacturer can engage the assistance of a neutral third party who acts as a mediator in their dispute.
The neutral third party has no authority to make any decisions, which are binding on them, but uses certain procedures, techniques and skills to help them to negotiate a resolution of their dispute by agreement without adjudication36.
Good mediation attempts to overcome negotiation impasse by overcoming barriers to successful negotiation and the neutral third party does not have any authority to make any decision or award for the parties.
Indeed, that is not the duty of the mediator37.
Even where the mediator expresses a view about 35 Macforlane J. ; An Alternative to What : The Mediation Alternative, (Cavendish Publishing Ltd, 2004), at p. 1.
36 Brown H. & Marriott, ADR Principles and Practice, (Sweet & Maxwell, 1993) at 9 37 See Macforlane j., above n 35, p. 7.
38 See Mackie, Miles and Marsh, Commercial Dispute Resolution, An ADR Practice Guide, (Butterworths, 1995), at p. 9.
39 See Abany Chantal Akwembe, Alternative Dispute Resolution (ADR) as a Mechanism of Peace in the merits of the dispute, that opinion is not binding on the disputants and in no circumstances would a mediator have the power to impose his view on the disputants.
Indeed, any such would be contrary to the spirit of mediation, which is inherently consensual38.
In fact, like many other hybrids of ADR, speed and low cost are some of the advantages of mediation.
For instance, in 2003, Ghana held its first mediation week in which about 300 cases pending in some courts in Accra were mediated within 5 days39 while in 2007, over 155 commercial and family cases from 10 District courts in Accra were mediated over 4 days.40 c. Conciliation Conciliation is the settlement of a dispute in an agreeable manner.
This method of settlement could be more suitable with cases involving petty consumer claims usually undertaken by regulatory consumer protection bodies41.
Practical examples are encountered in Nigeria every year.
For example, in 1988, of the 16 consumer complaints treated by SON, the remedy of replacement was obtained in 3 cases42.
In 1990, replacement was obtained in 2 of the 17 cases treated43.
And in 1991, replacement was obtained in 3 of the 19 cases treated44.
Such bodies do not possess the power to impose fines but could order for a refund of money where the product in question is defective.
On the other hand, they can also Africa, https://www.commosensemedia.org/appreviews/the-free-dictionary-by-farlex 40 Ibid 41 See the activities of SON (Standard Organization of Nigeria) and the successes recorded with respect to petty consumer complaints in Nigeria.
42 Complaints 2, 5 and 15 of the SON Annual Report 1988 at pp.
19, 20 and 25 respectively.
43 Complaints 13 and 14 of the SON Annual Report 1990 at p. 23.
44 Complaints 15, 17 and 19 of the SON Annual Report 1991 at pp.
60, 61 and 62 respectively.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 63 negotiate for a replacement of the defective product or item as illustrated above.
Hence, conciliation is aimed at trying to get disputants to stop arguing and agree.
It is also a process in which a neutral person meets with the parties to a dispute and explores how the dispute might be resolved.
It is a relatively unstructured method of dispute resolution by a third party who facilitates in our case, communication between the consumer and the producer, manufacturer or service provider in an attempt to help them settle their differences.
d. Arbitration It is a dispute resolution process in which the consumer and the producer may decide to choose one or more neutral third parties to make a final and binding decision in resolving their dispute.
The parties to the dispute may choose a third party directly by mutual agreement or indirectly, such as by agreeing to have arbitration organization selects the third party.
For arbitration, it does seem that it comes in useful where the dispute in issue involves a large number of consumers especially if such warrants the use of class actions45.
Here, given that the stakes would be high, arbitration is a viable option46.
Relationships may not be involved here and it may be risky and costly to subject the arbitral award to the whims and caprices of the parties.
Arbitration, which ensures that the award is binding, is undoubtedly, ideal.
45 Class actions are actions where a single person or a small group of people is authorized to represent the interests of a larger group.
46 For more on this, see Benedict Bakwaph Kanyip, Consumer Protection in Nigeria Law, Theory and e. Mini – Trial Mini-trials are not common in most African countries including Cameroon.
But its practice in a bid to resolve defective products related issues could be a welcome idea due to its recorded successes in saving both time and money47.
Thus, it is another ADR mechanism process whereby counsel for each disputant makes a presentation on the legal, factual as well as evidentiary stance in support of his case.
This proceeding is usually before an official with authority to effect settlement of dispute, and a third party neutral who serves as adviser.
Through this presentation, all disputants in a case are afforded an opportunity to assess the strength and weakness of their position and thereby decide whether or not to settle out of court or resort to adversarial procedure.
If at the end of their presentation the parties are unable to agree on settlements, the third party neutral adviser evaluates the case for both sides by examining the facts as presented, the evidence tendered and the position of the law on the issues.
Therefore, the advisor gives an opinion, which is strictly speaking not binding on the disputants.
This opinion, which is usually a reflection of the probable outcome should the disputants go to a full trial often encourage the disputants to go into further confidential settlement negotiations in an attempt to reach a mutually acceptable agreement.
In all, the idea behind the mini – trial mechanism is that the parties can resolve a defective product related issue on their on more efficiently if litigant representatives with settling authority are educated about the strengths and weaknesses of each side, giving Policy, (Rekon Books Ltd. – Abuja Nigeria, 2005) at 359.
47 See Alfred.
C. Aman Jr. & William.T.
Mayton, Administrative Law, 2nd ed.
(2001) at p. 291.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 64 | Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon... summary presentations of their cases under the eye of a jointly selected neutral advisor.
After each case is presented, the minitrial is confidential and non-binding.
Usually, no transcript is made of the proceeding.
f. Rent a – judge Rent a – judge, as a dispute resolution mechanism including disputes involving defective products appears to be more popular and associated with the United States dispute resolution environment48.
The procedure is indeed now recognized by legislation in that jurisdiction.
Even though associated with the United States, the mechanism could also be experimented in Cameroon, as well as extended to suits involving defective products.
This will ease tension between the disputants as well as reduce the cost of litigation.
It is thus a process through which the court, on stipulation of the parties, can refer a pending law suit to a private neutral party for trial with the same effect as though the case were tried in the court room before a judge.
The verdict of the process can be appealed through the regular court appellate system.
Where the verdict of the process is not appealed, the parties will be more satisfied due to speed, low costs and less complexity of the litigation process.
For it to work in Cameroon, the judicial system which is currently bi-jural must be re-organized and harmonized.
g. Facilitation This is a collaborative process used to help a group of individuals or parties, with divergent views, in a bid to achieve a goal or complete a task to the mutual satisfaction of 48 See Dele Peters, above n 5, 403.
49 The complex issues in our situation could be issues involving the quality, sample and fitness for the the participants.
The facilitator functions as a neutral process expert and avoids making substantive contributions.
The task of the facilitator is to help bring the parties to a consensus on a number of complex issues49.
This is possible where a group of people is suffering from a common problem resulting from the consumption of a defective product.
For instance, dirty water supplied to a village and a large number of the people are sick following the consumption of the dirty water.
The action commonly required here is “class action”.
h. Fact finding Fact finding as a dispute resolution process is often used mostly in the public sector collective bargaining.
This has been practiced in Cameroon for quite some years even though the recommendations of the fact finders have not often been published nor implemented and thus not binding on the parties.
Despite this, it will still be considered as a viable mechanism of ADR in matters involving defective products.
This is probably possible where a large sector or a group of the public for instance, is injured by a particular product due to its defectiveness.
The China 2008 Tainted Milk Scandal presents a good example.
In 2008, over 22 dairy companies in China manufacturing infant power milk used melamine, a chemical used in the manufacturing of fertilizers and plastics with the intention of boosting the protein content of the milk.
Unfortunately, over 300 000 infants became sick50 after consuming the defective milk, with six deaths recorded.
The issue here is that aside from the proceedings which were initiated by the court against the companies, a Fact purpose of the goods, as well as issues linked with the compensation of victims.
50 Most of them suffer from Kidney stones problem which kidney stones are also rear in children.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 65 Finding Commission was also set up and far reaching recommendations were also made to the parties involved.
Generally, the Fact Finder does not have the power of either a judge or an arbitrator.
Thus, he cannot make a binding decision for the parties.
Rather, the Fact Finder, drawing on both the information provided by the parties and research findings of his own efforts, makes recommendations to the parties for the resolution of the dispute between them.
Although his recommendations are not binding on the parties, one important advantage of this mechanism is that, it has capacity to pave the way for further negotiations and mediations.
i. Med – Arb This is an innovation in dispute resolution process.
It is not common in Africa, Cameroon inclusive.
But it can serve as a veritable mechanism of ADR in Cameroon in the resolution of disputes involving defective products if the judicial system is well structured and Government and its administration well organized.
By this mechanism, the Med-Arbiter is authorized by the parties to serve first as a mediator and secondly as an arbitrator.
When the MedArbiter serves as an arbitrator, he is given other powers to resolve any issues not resolved through mediation.
Thus, Med-Arb is often resorted to so as to resolve all outstanding issues not resolved during mediation process.
51 See Frank E.A.
Sander, Varieties of Dispute Processing in The Pound Conference: Perspective on Justice in the Future, (A Leo Levin and Russell Wheeler eds.
1979), 64, 83-84.
See also https://www.pon.harvard.edu>daily ; Gladys Kessler and Linda J. Finkelstein, (1988) ‘The Evolution of a Multi-Door Courthouse’, (1988) j.
The Multi – Door Courthouse (MDCH) The Multi-Door Courthouse concept is the idea of an American Professor E.A.
Sander51.
It is a proposal to offer a variety of dispute resolution series in one place with a single intake desk, which will screen clients.
The idea is one which seeks to radically change the traditional conception of the court as the only “door” to getting justice.
Instead by this mechanism, other “doors” are created to which disputants could access the court and hence justice.
These other “doors” include arbitration, fact-finding and mediation.
An adoption of the Multi Door Courthouse mechanism in Cameroon will be a welcome issue to consumers of defective products whose complaints are sometimes not promptly attended to due to the congestion of the cases within the regular courts, thus resulting to delays in rendering judgments.
To Professor Sander, dispute resolution mechanisms such as negotiation, mediation, arbitration and other arbitration hybrids like early natural evaluation (ENE) can be fused with the existing court system and, its procedural rules adopted; thereby practically altering the existing structures, rules and composition of the existing court system.
Professor Sander’s idea envisioned an institutionalized system which combines Dispute Resolution mechanisms with the age long litigation process52.
Nigeria in a bid to solve the congestion problem in courts has created two Multi-Door Courthouses –the Lagos Multi-Door Courthouse and the Abuja Multi-Door Courthouse.
A trail by Cameroon as well must surely improve the settlement of 37(3) Catholic University Law Review, available at < https://scholarship.law.edu> 52 See Oyeniyi Ajigboye, ‘The Concept of MultiDoor Courthouse in Nigeria : Rethinking Frank Sander’s Concept’, (2014) SSRN Electronic Journal, <https://ssrn.com/abstract=2525677> also https://www.researchgate.net> https://scholarship.law.edu/ https://ssrn.com/abstract=2525677 https://www.researchgate.net/ Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 66 | Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon... dispute system in general, not leaving out disputes involving defective products.
This will only be possible if the judicial system is restructured, as well as effect an extensive harmonization of the common law and civil law rules.
IV.
CONCLUSION On a final note, we summit that as beautiful and efficacious as the ADR hybrids are, they are not the “panacea” to all kinds of disputes involving defective products.
Consequently, there are certain classes or types of dispute which can only be adjudicated upon, by the courts.
For instance, where the dispute warrants a definitive interpretation of the law or a constitutional interpretation, then such a dispute must only be decided by the court or through the adversarial system.
Furthermore, where the dispute involves the breach or the abuse of the fundamental rights of the consumer, then such a dispute will hardly be settled by any of the ADR hybrids.
It is equally important to note that where governmental authorities or agencies must be held accountable, then any of the ADR hybrids cannot be applied.
Lastly, a defective product liability related case based on criminal law is not suited for any of the ADR processes.
For instance, where the manufacturer intentionally adulterates any foodstuff whether for human or animal consumption, or beverage or medicinal substances contrary to s.258 (1) of the Penal Code, then the matter must only be tried by a criminal court of competent jurisdiction.
Moreover, whoever gives false information on the quality of technology, goods or services supplied to a consumer contrary to the provisions of s. 32 (1) of the 2011 Cameroonian Consumer Protection Law is deemed to have committed a crime and such a suit will not be suitable for any of the ADR mechanisms..
Thus, whatever may be the virtue of ADR option, a note of caution must be sounded against its uncritical transposition into the civil justice system without first curing the existing defects in the system.
The clamour for the ADR option in Cameroon is certainly influenced by the problems Cameroonians perceive in the current civil justice system which are the problems of formality, lack of speed, high costs and complexity of the litigation process.
The question then becomes whether the ADR option can be applied without necessarily yielding to these same pressures or problems?
For instance, a system of ADR where the involvement of legal professionals is integral to successful resolution will simply be a parallel to the current system, and will therefore, accrue the very problems of excessive legalism and delay which underlie calls for change.
Thus, the Rt.
Hon.
The Lord Mackay of Clashferm has consequently advised that rather than simply replacing current procedures with new ones, we must continue to look into the causes of the problems and attempt to solve them.
Otherwise, we shall merely be papering over the cracks in the current system, rather than treating the factors which cause them.
On the whole, the choice of a consumer redress mechanism is a choice between judicial and non-judicial mechanisms.
It is arguable that the non judicial mechanisms are more impactful and satisfactory to the consumers than the judicial.
The justification here is that judicial mechanisms depict a certain level of risk taking – the risk of winning or losing and hence going without a remedy as in the Cameroonian cases of Ntum Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 67 George Nde v. Brasseries Du Cameroun53, Elsie Elange Ndua v. Brasseries du Cameroun54, and John Mokake Elali v. Brasseries du Cameroun55.
In all these cases, the plaintiffs who were allegedly injured by the products of the defendants lost their cases on the grounds that, they had failed to carry out laboratory analysis of the drinks as proof of their defectiveness and also further scientific tests to show that what they allegedly consumed was the effective cause of their ailments.
In other words, no nexus was established between their ailments and the allege products they consumed.
This risk factor is much lower in the non – judicial mechanisms which reveal that in appropriate circumstances, producers using the good customer relation basis, are often minded to compensate even where the consumer’s claim is baseless.
However, with adversarial system, the effect is that, the loser is minded to delay the implementation of the decision of the court through appeals and other tactics of obstruction.
However, under the non – judicial mechanisms, these obstructive tactics are less prominent as the parties most often agree on the resolutions adopted to deal with the complaint in issue.
On this basis, we hereby advocate that it is necessary to encourage the utilization of the non – judicial mechanisms in resolving consumers’ complaints.
Expediency, speed and low cost no doubt support this call.
However, the ADR mechanisms will not be quite smooth as discussed above.
Firstly, the lack of professional mediators in Cameroon well-trained and available for amicable dispute settlement will be a major obstacle.
Secondly, there are no mediators accredited to courts to be designated and there is no clear status for mediators or conciliators.
In 53 Suit No.
CASWP/5/2005 (Unreported).
54 Suit No.
BM/35/95-96 (Unreported) some cases, lawyers and judges may do out of court amicable settlement in their Chambers in the form of mediation and reconciliation.
Despite these isolated settlement procedures, the issue of professionalism remains unresolved.
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C. Jr. & William.T.
Mayton, Administrative Law, 2nd ed.
(2001) Ayua (ed.)
‘Nigerian Legal Profession: Problems and Prospects’, in Ayua (ed.)
Law, Justice and Nigerian Society, NIALS Commemorative Series I, (Nigerian Institute of Advanced Legal Studies, Lagos, 1995).
Garner, Bryan A., Black’s Law Dictionary, 10th ed.(Thomson Reuters Publishers U.S.A., 2014) Goldberg, et al, Dispute Resolution, 2nd ed.
(Little Brown & Co. Boston U.S.A, 1997) H., Brown & Marriott : ADR Principles and Practice, (1993), Sweet & Maxwell J. Macforlane, An Alternative to What : The Mediation Alternative, (Cavendish Publishing Ltd, 2004) Kanyip, Benedict Bakwaph, Consumer Protection in Nigeria Law, Theory and Policy, (Rekon Books Ltd. – Abuja Nigeria, 2005) Mackie, Miles and Marsh, Commercial Dispute Resolution, An ADR Practice Guide, (Butterworths, 1995) Peters, Dele, Alternative Disputes Resolution, Published in New Perspectives in Law – Essays in honour 55 Suit No.
HCSW/35/75 (1975) (Unreported).
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 68 | Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon... of Honourable Justice Terna Fefa Puusu (Chief judge of Benue State – Nigeria), (2005), Published by Dee – Sage Nigeria Ltd. Lagos.
Sander, Frank E.A., Varieties of Dispute Processing in The Pound Conference: Perspective on Justice in the Future, (A Leo Levin and Russell Wheeler eds.
1979), 83-84 The Rt.
Hon.
The Lord Mackay of Clashfern, The Administration of Justice: The 1993 Hamlyn Lectures (Stevens & Sons/Sweet & Maxwell: London, 1994) ‘Alternative Dispute Resolution in Nigeria: Benefits, Processes and Enforcement’, Current Themes in Nigeria Law, Journals and Reports Aina, Kehinde, ‘The Lagos Multi – Door Courthouse and the judge: A New Beginning’, (2004) 8 nos.
3-4 Modern Practice Journal of Finance & Investment Law MPJFIL at 340 Boyarin, Yoshai , ‘Court-Connected ADRA Time of Crisis, A Time of Change’,(2012) 95(3), Marquette Law Review, p. 996-997 Freehills, Herbert Smith, A MultiJurisdictional Review: Dispute Resolution in Africa, Legal Guide Second Edition, (Herbert Smith Freehills , 2016), p 50-57, online access: https://www.herbertsmithfreehills.com /sites/contenthub_mothership/files/Gui de%20to%20dispute%20resolution%2 0in%20Africa_w_bookmarksv2.pdf Kessler, Gladys and Linda J. Finkelstein, (1988) ‘The Evolution of a Multi-Door Courthouse’, (1988) 37(3) Catholic University Law Review.
Law Reform Commission, Alternative Dispute Resolution: Mediation and Conciliation, Report, Law Reform Commission, 2010 Nwazi, Joseph, ‘Assessing The Efficiency of Alternative Dispute Resolution (ADR) in The Settlement of Environmental Disputes in The Niger Delta Region of Nigeria’, (2017) 9(3),Journal of Law and Conflict Resolution, 26-41 Office Fair Trading 1267, 2010 “Mapping UK Consumer redress: A summary guide to dispute resolution system”, acessed on https://webarchive.nationalarchives.g ov.uk/20131101170541/http://oft.gov.
uk/shared_oft/general_policy/OFT126 7.pdf Oyeniyi, Ajigboye, ‘The Concept of MultiDoor Courthouse in Nigeria : Rethinking Frank Sander’s Concept’, (2014) SSRN Electronic Journal, , https://ssrn.com/abstract=2525677 Resolving Consumer Disputes: Alternative Dispute Resolution and the Court System available at < https://assets.publishing.service.gov.u k> Regulations The French Civil Code, The 2011 Cameroonian Consumer Protection Law.
The OHADA Uniform Act on Mediation, adopted on 23rd November 2017 in Conakry (Guinea), entered into force on March 2018.
The Revised OHADA Uniform Act on Arbitration was adopted on the 23rd of November 2017, replacing the initial Text of March 1999 The Revised CCJA Rules on Arbitration was adopted on the 23rd of November 2017 Cameroon presidential Decree No.
96/177 of 5th September 1996 after the https://ssrn.com/abstract=2525677 https://assets.publishing.service.gov.uk/ https://assets.publishing.service.gov.uk/ Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Amandong Alternative Dispute Resolution (ADR) Hybrid in Cameroon… | 69 authorization of the National Assembly through Law No.
94/4 of August 1994 Cases Suit No.
BM/35//95 96 (Unreported) Suit No.
HCK /12/97 (Unreorted).
C.A.
Douala : Arret No.
12/Cdu 18 Octobre, 1991.
Suit No.
CASWP/14/79 (Unreported).
Suit No.
CASWP/5/2005 (Unreported).
Suit No.
BA/52/99 – 2000(Unreported).
the Cameroonian case of Kimbeng Nde Richard v. Guinness Cameroon .S.A., Suit No.
HCB/42/03 – 04 (unreported) Complaints 2, 5 and 15 of the Standard Organization of Nigeria Annual Report 1988 at pp.
19, 20 and 25 respectively.
Complaints 13 and 14 of the SON Annual Report 1990 at p. 23.
Complaints 15, 17 and 19 of the SON Annual Report 1991 at pp.
60, 61 and 62 respectively.
Internets Abany Chantal Akwembe, “Alternative Dispute Resolution (ADR) as a Mechanism of Peace in Africa”, https://www.commosensemedia.org/a pp-reviews/the-free-dictionary-byfarlex
216 | DOI: http://doi.org/10.21776/ub.blj.2021.008.02.04 Fraud in the Comperative Perspective of Civil and Criminal Law with Special Focus in Kosovo Egzonis Hajdari1, Albulena Hajdari*2, Azem Hajdari3 1Faculty of Law, AAB College, Kosovo Email: egzonishajdari@gmail.com 2Faculty of Law, University of Kadri Zeka, Kosovo *Email: albulena.hajdari@uni-gjilan.net 3Faculty of Law, University of Pristina Hasan Pristina, Kosovo Email: azem.hajdari@uni-pr.edu Submitted: 2021-09-20 | Accepted: 2021-10-29 Abstract: The object of this study is fraud in the comparative aspect of civil and criminal law based on the relevant legislation and Kosovo legal theory.
The results of this study prove that fraud in the Kosovo courts practice is relatively common, and that there are many irregularities in its handling.
Irregularities mostly refer to the lack of clarity matter of differences that this harmful phenomenon contains in itself when handled in the civil legal aspect from the treatment given to it in the criminal legal aspect.
These uncertainties have influenced that in each concrete case the phenomenon of fraud in Kosovo is first addressed in the criminal aspect and then eventually in the civil aspect.
The study highlights the similarities, differences and existing ambiguities of fraud when handled in the civil legal aspect from the treatment given to it in the criminal legal context, as well as it addresses the appropriate ways of clarifying such situation.
The contribution of this study is theoretical and practical, bearing in mind the fact that it deals with an almost unaddressed issue in Kosovo and perhaps in many other countries.
Keywords: fraud, relationship, obligations, civil, criminal.
I .
INTRODUCTION Fraud is a phenomenon that marks a relatively high presence in the realities of Kosovars practical life.
This fact has influenced the state courts in their practical work to constantly face this harmful phenomenon.
According to the Kosovo legislation in force, fraud is considered to be an illegal phenomenon, with material consequences for persons, groups of individuals (organized in the enterprise) and for the entire society.
Property fraud is defined by the Law on Obligational Relationships (hereinafter LOR) as a defect of will when it comes to concluding contracts, whereas by the Criminal Code (hereinafter CC) is determined as a special criminal offense.
The existing legal regulation it results not to have clearly made the distinction http://doi.org/10.21776/ub.blj.2021.008.02.04 mailto:egzonishajdari@gmail.com mailto:albulena.hajdari@uni-gjilan.net mailto:azem.hajdari@uni-pr.edu Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 217 between fraud in cases where it should have been dealt with in civil proceedings, and property fraud in cases when it should have been dealt with in criminal proceedings.
Consequently, this phenomenon in any case is initially handled in criminal proceedings, and then the paths are opened to be treated in civil proceedings (in the context of contract annulment and compensation of damages), which undoubtedly affects the increase in workload of courts without having such a need (the same case is handled in two proceedings criminal and civil) and in the procrastination of court proceedings for years, until the injured party realizes his rights.
Bearing in mind the fact that there are ambiguities in theory and practice regarding these issues, in order to clarify this and the final findings of this matter, this scientific paper is organized in such a way that it analyzes every important element of property fraud.
Observed in this regard, initially the fraud has been handled in the civil legal point of view, and then it has been handled in the criminal legal point of view and finally have been treated common and distinctive points related to the fraud, but elaborated in both aspects of treatment (civil and criminal law).
II.
LEGAL MATERIALS AN METHOD This research paper adopted normative judicial method which examine and analysis legal sources regarding frauds in civil and criminal law.
This paper is also use descriptive and comparative method to get better understanding regarding the purpose of the research.
Relevant journal and books are also used to support and strengthen this paper academic argument.
III.
RESULT AND DISCUSSION Comparative Background In civil and criminal legal theory and in Kosovo case law, but perhaps in most countries of the world, there are many uncertainties related to the definition of boundary between civil legal liability and criminal legal liability concerning the phenomenon of fraud which results in causing material damage.
In order to be able to clarify this very much-needed limit for the needs of case law, it is necessary to elaborate them in separate perspectives (civil and criminal) the most basic matters characterizing this harmful phenomenon, and then to point out their common and distinctive points.
Such matters (specified below) shall first be handled in the manner how they are addressed by legislation and civil legal theory, and then the same shall be treated from the criminal legislation and criminal legal theory point of view, and finally shall be emphasized the points that unite and those that distinguish those issues within these two basic areas of law.
Fraud from the Civil Legal Point of View In Kosovo, from the civil legal point of view, fraud is handled by the LOR and by the theory of legal relations of obligations, specifically in the field of contracts, where its elaboration shall be concentrated.
In the context of this point of view shall be elaborated the following issues such as: notion, constitutive elements, subject, liability and legal remedies concerning the fraud.
a.
Notion of fraud In Kosovo, fraud in the civil legal aspect is handled by the LOR.
In this Law, fraud is considered as a defect of the will that is expressed in the relations of obligations (specifically in contracts).
According to the LOR provisions fraud is considered to exist if one party causes an error to the other party, Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 218 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… or keeps in error the other party in order to incite to conclude the contract, the other party may request for the contract to be declared invalid even in cases when the error is not substantial.1 From a civil legal point of view, fraud in Kosovo is handled as a harmful phenomenon which aims to make the cocontractor have a false picture concerning the situation, in order to make him/her to render a decision to enter into a concrete contract, which is harmful to him/her.2 On the other hand, in the civil legal science of Kosovo, in addition to a brief overview made in a single commentary of the LOR,3 there is not a single sentence of scientific character regarding fraud.
This finding also refers to the published textbooks of the law of obligations.4 However, in Albanian literature, fraud has nevertheless been addressed in several civil law textbooks published in Albania, including the recently published commentaries of Civil Code of this country.
Based on the Albanian civil legal science, fraud is treated as a lie used by one party5 in order to mislead the other party,6 1 Law on Obligational Relationships, Article 49, par.
1.
Law no.
04 / L-077, Official Gazette of the Republic of Kosovo no.
16, dated 19 June, 2012.
Available at: https://gzk.rksgov.net/ActDetail.aspx?ActID=2828 .
Even in the draft Civil Code of Kosovo (which is still under discussion) regarding the aspects of obligations, fraud takes place only in Book II.
It is addressed in Article 178 and does not contain any changes from the solutions currently available to the LOR.
Available at: http://konsultimet.rksgov.net/vieëConsult.php?ConsultationID=40578 .
2 Dauti Nerxhivane, Berisha Ruzhdi, Vokshi Adem, Aliu Avdulla, (Komentar, Ligji për marrëdhëniet e detyrimeve, Libri I, Prishtinë, 2013), p. 62.
3 Ibid.
p. 62.
4 For this see two single textbooks of the law of obligations written by Kosovo authors: Alishani Alajdin, E drejta e detyrimeve,(Prishtinë, 2002); and Dauti Nerxhivane, E drejta e detyrimeve, (Pjesa e përgjithshme, Prishtinë, 2016).
5 By the party should be implied, in addition to the contracting parties, also the person in whose which if it knew about this fact (the lie) would not have entered into such a contract.7 Consequently, fraud exists even in cases when committed by the third person, but on the condition that the contracting party has benefited from such fraud and has known or had the possibility to know about the fraud at the time of entering into the contract.8 From the American point of view, the biggest challenge made to contracts comes from theories of honesty, unconsciousness and coercion.
Honesty is intended to avoid deception and cunning behavior (infidelity) when entering into a contractual agreement.
These theories empower courts to review contractual provisions or to annul them altogether in defense of justice.9 Generally speaking, English-speaking authors consider that fraud may result from a false statement made by the party knowingly.10 Bearing in mind what was abovementioned it can be concluded that by fraud in contractual relations should be implied the defect of will which consists in the fact that one contracting party with its fraudulent11 and conscious actions, which can be active interest a unilateral legal action is performed, for example the testamentary heir.
6 In fact, fraud is the result of a premeditated action, where one contracting party intentionally pushes the other party into error.
7 Below.
When discussing about classifications and types of fraud, it shall be emphasized the fact that fraud according to the latest approach can be reciprocal (bilateral), but for many reasons in the comprehensive elaborations of this topic shall be addressed this phenomenon only in the context of committing by one of the contracting parties and by a third person.
8 Compare: Kondili Valentina, E drejta civile I, (Pjesa e përgjithshme, Tiranë, 2008), p. 254.
9 Frid Charles, Kontrata si Premtim – Një teori mbi detyrimin kontraktor, (Tiranë, 2013), p. 99.
10 Salmond John, Williams James, Principles of the Law of Contracts, (Oxford, 1945), p. 244.
11 The deceiver intends to achieve his goal by instilling a false belief in his co-contractor and thus it can be said that he causes harm by influencing the other's mind, just as the attacker does by laying his hand on his victim.
The liar secures this https://gzk.rks-gov.net/ActDetail.aspx?ActID=2828 https://gzk.rks-gov.net/ActDetail.aspx?ActID=2828 http://konsultimet.rks-gov.net/vieëConsult.php?ConsultationID=40578 http://konsultimet.rks-gov.net/vieëConsult.php?ConsultationID=40578 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 219 (presentation or coherent repetition of false facts) and passive (inaction by silencing the facts), or fraudulent actions of a third person of which he is aware of or should have been aware of at the time of entering into the contract, causes error to the other contracting party, respectively does not undertake anything to eliminate the error (keeps him/her in error), under the effects of which it suffers any harm.12 b. Constitutive elements of fraud Despite the differences that exist between theorists, I consider that in any case as elements of fraud in the contracts of obligations should be considered the following: a) the existence of a valid contract, b) fraudulent action, c) the purpose of fraud, d) causal link, and e) the existence of damage.13 Concerning these elements of fraud shall be discussed in the following treatments.
1) Existence of a valid contract: Based on Article 49 of the LOR, contract can be annulled due to fraud.
As it is known, a contract which has already been concluded by the contracting parties can be annulled, which means that cannot be annulled something that is non-existent.
This implies that in order for a contract to be annulled, it is required to be a valid contract, respectively to be concluded in accordance with the conditions specified by law.
Therefore, contract is valid if: its subject matter is possible, determinable, permissible (it is not superiority by arousing and exploiting the faith of the other, as lying takes place only by nurturing the expectations that arouse faith.
This evil is reinforced, especially when the lie is used in the manner of a promise.
For this, in more detail, see: Fried, op., cit., p. 104 105.
12 Hajdari Egzonis, Fraud A comparative approach between the law of obligation in Turkey and Kosovo, PhD thesis defended at Marmara University of Istanbul (Turkey) in May 2019, p. 108.
13 The authors who deal with the phenomenon of fraud define these elements in different ways, such contrary to legal provisions, personal rights, the morality of society and the form of contract), and when the contracting parties have agreed with their free will regarding the essential elements of contract (LOR, Articles 2, 15, 18, 34).
In fact, contract is valid if it meets the “conditions of validity”.
On the contrary, if contract is bound by not respecting these conditions it shall be considered null.
Based on this, it is easily concluded that if contract is invalid it is considered that it does not exist as a valid contract.
2) Fraudulent action:This key element of fraud is considered to be fulfilled in any case when the fraudster at the time of entering into the contract is served with fraudulent actions, such that bring or keep the deceived (the other party) in error.
Fraud, as abovementioned is expressed through active deceptive actions, but it can also be expressed through passive deceptive actions.14 Active deceptive actions are manifested through the false presentation of facts, respectively through the assertion of a fact which does not exist, or through the presentation of facts different from the format in which they exist.
Meanwhile, passive deceptive actions are manifested through concealment of facts, or silence of facts when there was an obligation of the deceiver to show them.15 A deceptive action is considered if the person makes a false statement knowing it is incorrect, or does not take care about the truth whether it as the use of a false statement, being aware of the existence of a false statement by the fraudulent party, the purpose of the fraud, the basis of the false statement in the decision-making for concluding the contract, etc.
14 Eren Fikret, Borçlar Hukuku Genel Hükümler, Cilt 1, Ankara, 1991, fq.
480; Bigili Fati, Demirkapi Ertan, Borçlar Hukuku, Dora, 2016, s.66; Kiliçoğlu M. Ahmet, Borçlar Hukuku, 13.
Bası, Ankara, 2010, p. 167.
15 Salihu Ismet, Zhitija Hilmi, Hasani Fejzullah, Kodi penal i Republikës së Koosvës, Komentar, Prishtinë, 2014, p. 937.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 220 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… is correct or not.16 Such should be considered the fraudulent action, for example, in the case when the seller sells to the inexperienced buyer the crashed car, whose scratches have been masked, while he declares to him that the same had never suffered from any accident.
By viewing this approach, it can be freely said that there is no fraud in cases where the seller sells a car to the buyer without declaring anything to him about the accident, while the buyer is a car mechanic for many years and who had noticed several damages under the car which can only be caused by any accident.
“Hence, even though the seller knew that through his passive action he was trying to deceive the buyer, in such a case there is no deception as it can be assumed that such buyer could easily have known that the car was crashed, as it contained damages which could only be caused by car accidents.17” In this case it can be concluded that the buyer knew about the car accident, therefore the contract cannot be annulled due to the fraud.18 Consequently, even “the false statement given as a result of negligence does not constitute fraud.19 3) The purpose of fraud: This element of fraud is considered to exist when the fraudster intentionally and willingly uses the false statement in order to mislead the deceived (his co-contractor) concerning one or more elements of contract.
If the intent for 16 Chenshire Geoffreu, Cheshire Fifoot, Cases on the Law of Contract, Butterworth, 1946, p. 156; Salamond, Williams, op., cit., p. 244 – 245.
17 Compare: Fraud.
Available at: https://contracts.uslegal.com/fraud/ 18 Karahasan Mustafa Resit, Türk Borçlar Hukuku, Genel Hükümler, 1 Cilt, Istanbul, 2003, p.110.
19 Guenter Treitel, An Outline of the Law of Contract, 5th edition, London 1995, p. 145.
20 Kurşat Zekeriya, Borçlar Hukuku Alamanda Hile Kavrami, Istanbul, 2003, p. 25.
21 Antalya Gokhan, Borçlar Hukuku Genel Hükümler, Istanbul, 2016, p. 239.
22 Turgut Önen, Borçlar Hukuku Genel Hükümler, Ankara, 1999, fq.
62; Esener Turhan, Gűdonğu Fatih, Borçlar Hukuku I – Sözleşmelerin kuruluşu committing fraud is lacking, then we are not dealing with fraud.
The intention to deceive is defined as an illegal act of the deceiver,20 which can be direct or even indirect “dolus eventualis”.21 This is due to the fact that both the direct and the indirect purpose concretize the fact of fraud existence.
Therefore, for the existence of fraud, the party which commits the fraud must act in order to deceive the other party.
In this regard, it can be concluded that fraud is considered to be when one of the contracting parties intentionally misleads the other party.
This implies that the false statement made as a result of negligence would not be considered fraudulent.22 Through the purpose of fraud, the fraudster intends to achieve two following effects: the desire: a) the contracting party to err, and b) the deceived party to enter into the contract.23 Nevertheless, in several cases the existence of intent to defraud is justified only when trust is reached with the other contracting party.24 This implies that, in various cases for the existence of fraud the deceived party must have trusted the fraudulent party that it is telling the truth.25 4) Causal link: In addition to the abovementioned elements, for the existence of fraud, the element of causal link must be completed also.
Although fraudulent action is a necessary condition for the existence of fraud when it comes to entering into a ve geçerliliği, İstanbul, 2017, fq.
156; Akman Semat, Burcuoğlu Halûk, Altop, Tekinay Borçlar Hukuku – Genel Hükümler, 7.
Baskı, İstanbul, 1993, p. 447.
23 Kurşat, op., cit., p. 27.
24 Kayar İsmail, Borçlar Hukuku, İstanbul, 7 Baskı, 2008, p. 54.
25 Hajdari Egzonis, Erlüle Fulya, Elements, types and consequences of fraud according to obligation law – a comparative approach between legislation in Turkey and Kosovo, International Comparative Jurisprudence 2018 Volume 4 Issue 2, fq.
167.
Available at: https://www3.mruni.eu/ojs/internationalcomparativejurisprudence/article/view/4926/4474.
https://contracts.uslegal.com/fraud/ https://www3.mruni.eu/ojs/international-comparative-jurisprudence/article/view/4926/4474 https://www3.mruni.eu/ojs/international-comparative-jurisprudence/article/view/4926/4474 https://www3.mruni.eu/ojs/international-comparative-jurisprudence/article/view/4926/4474 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 221 contract “condictio sine qua non”, the presence of fraud is nevertheless determined by the existence of a causal link between the act (or omission) and the concluded contract.26 Hence, the fraudulent action to the contracting party must have a decisive effect on the outcome of the concluded contract.
“This implies that if there was no fraud the deceived party would not have entered into the contract.”27 The causal link exists in cases when the deceived party would not conclude the contract at all “dolus causam dans” or would conclude it with better conditions for itself “dolus incidens”.
All this dictates the expression of the element “causal link”.28 Therefore, it can be concluded that if there is no causal link between the fraudulent act and the signed contract then fraud cannot be expressed in any way, and consequently the fraud-based contract cannot be annulled.
“It is also worth emphasizing the fact that fraudulent action and the conclusion of contract must be manifested (occur) in parallel.
This is due to the fact that there can be no fraud after the conclusion of contract, but in order for the fraud to exist, it is required to be committed before or during the conclusion of contract.
This means that, after the conclusion of contract, the party cannot give up the fraud that it has committed, because the fraud it already exists.”29 5) Existence of damage: This element of fraud consists in the damage suffered by one party due to the fraud committed by the other contracting party or by the third person.
Of course, here it is required to be a matter of considerable damage.
Therefore, it is considered that negligible damages should not be a basis for establishing the fact of 26 Antalya, op., cit., p. 239.
27 Detyrimet dhe kontratat në përgjithësi, Luarasi, Tirana, 2009, p. 144; Biligili Fatih, Demirkapi Ertan, Borçlar Hukuku, Dora, 2016, p. 66. fraud existence within a possible court dispute.
c. The subject of committing fraud The number of subjects that can be involved in committing fraud in the law of obligations it results to be relatively large.
The subject of fraud in contractual relations in accordance with paragraph 1 of Article 49 of the LOR, in the first place, may be the contracting party.
According to the legal solution defined in this paragraph, the contract is considered to be concluded by fraud when one of the contracting parties misleads (frauds), or keeps in error the other party in order to enter into a contract that is harmful to it.30 “The capacity of contracting party may possess any person who has no legal obstacles to enter into a contractual relationship with other persons.
Therefore, since the contracting parties enter into contracts to fulfill their interests (or those of their relatives), it is even possible for them to link these substantial interests by serving with the phenomenon of fraud.
However, since, in the interest of the contracting parties, their representatives can also enter into a contract, bodies (responsible authority) of legal persons and assistants (deputies) of the parties, then in the capacity of fraudster (with or without the knowledge of contracting party) often appear even the abovementioned subjects.31 In addition to the contracting party and their representatives, fraud in concluding contracts may also result from the third parties, which in the case of committing fraud may be guided by personal interests, others’ interests, but also on the basis of combined 28 Tuhr V. Andres, Borçlar Hukukunun Umumi Kısmı, 1983, Cilt 1-2, p. 296.
29 Kurşat, op., cit., p. 34.
30 See: LOR, article 49 paragraph 1.
31 Kursat, op., cit., p. 37.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 222 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… interests.32 The fact that fraud can also be committed by third parties is a well-known matter for civil law science and judicial practice, as well as it constitutes an issue that is addressed also in legal terms.
This issue is addressed in the paragraph 3 of Article 49 of the LOR.
However, the issue of fraud existence committed by a third party is related to the fact of being aware or being able to know from the contracting party that is favored by the fraud for the committed fraud at the time of entering into a contract.33 This implies that if the contracting party knew or should have known about the fraud committed by a third party, then this fact determines the existence of fraud committed by the contracting party through silence.34 In this case, fraud committed by a third person, the contracting party silence it in order to deceive the other party with whom it wants to enter into a contract.
Consequently, the circle of persons who might have the capacity of a third person, respectively the possibility to commit fraud related to contracts can be very wide and in the theory of the law of obligations is difficult to list their number.
This capacity and possibility may have the descendants and ancestors of the contracting party, any of his friends, etc.
d. Liability for committing fraud Regarding the commission of fraud, the LOR has foreseen civil legal liability.
Such liability consists in the obligation to 32 Combined interests exist, for example, in cases where from the sale of a certain apartment in relation to which fraud has occurred (it is hidden the fact that the building where the apartment is located shall be demolished) has benefited in addition to the seller also a third person which may be the sales agent who knew about this fact but did not tell the buyer and in return received a certain reward from the seller.
33 Akyol Şener, Tam Üçüncü Şahıs Yararına Sözleşme, İstanbul, 2008, fq.
133; Nomer N. Halûk, Borçlar Hukuku – Genel Hükümler, 13 compensate the caused damage (paragraph 2 of Article 49).
“This liability is based on the principal rule that in contractual relations all rights and obligations that arise belong to the contracting parties.”35 In fact, the liability to compensate damage falls on the fraudulent party.
But in order for this obligation to exist, it is required for the deceived party to has requested the realization of such right.
As a rule, on the side of the deceived party lies the right to submit a lawsuit for annulment of contract concluded under the effects of fraud, and through it to seek compensation for the damage suffered.
Although, it is not ruled out the possibility that for the realization of right to compensate the caused damage to be done with a special lawsuit.
Such situations usually come to expression when criminal proceedings have already been conducted relating to fraud, and the court which has resolved the criminal case, has authorized the deceived party for the possibility to seek compensation for damages in civil proceedings.
On the other hand, in contracts concluded through representation, when they encounter the phenomenon of fraud, then it is always expectable that the consequences of this phenomenon affect the representatives as well, hence to include them also in obligation to compensate the damage.36 As a rule, the representative mainly deals with the consequences of fraud in cases where he represents the party with absolute incapacity Bası, İstanbul, 2015, fq.
71; Akıntürk Turgut, Borçlar Hukuku, Hğkümler Genel, Borç Özel İlişkileri, 21 bası, İstanbul, 2013, p. 50.
34 Antalya, op., cit., fq.
238; Eren, op., cit., p. 483.
35 Compare: Tekinay Selhâtin, Medeni Hukunun Genel Esasları ve Gerçek Kişiler Hukuku, 6 Bası, İstanbul, 1992, p. 242 246; Aydın Zevkliler, Giriş ve Başlangıç Hükümleri Kişiler Hukuku Aile Hukuku, Ankara, 1992, p. 249 253.
36 Akyol Şener, Türk Medeni Hukukunda Temsil, İstanbul, 2009, p. 220.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 223 for action.
This is because he has absolute authorizations to exercise all legal affairs, including property contracts on behalf of the party representing it.37 Finally, it should be emphasized the fact that fraud committed by a third party, the deceived party in accordance with the paragraph 3 of Article 49 of the LOR may seek compensation from such person, and he may be obliged to compensate the damage caused.38 e. Legal instruments of fraud In order to ensure the protection of legal rights of persons who have entered into contracts under the effects of fraud with the LOR (Articles 97, 99 and 100), the relevant legal instruments against fraud have been established.
These instruments are in function of protecting their violated rights, which are related to the right of annulment of contract,39 return of items and the right for compensation of damage.40 The right to annul the contract belongs to the deceived person.
It represents a unilateral legal action,41 because for the annulment of contract by the deceived party, it is not required any approval from the other party (fraudulent party).
The right to annul the contract cannot be used by the party that has acted in misfaith, as well as after its previous use.42 According to the LOR and 37 Serozan Rona, Medeni Hukuk – Genel Bölüm, 7 Bası, İstanbul, 2017, p. 434.
38 Zevkiler Aydın, Ertaş Şeref, Havutucu Ayşe, Aydoğdu Murat, Cumalioğlu Emre, Borçlar Hukuku Genel Hükümler ve Özel Borç İlişkileri, 2.
Baskı, İzmir, 2013, p.183.
39 The consequences of null and void contracts are the same in terms of the return of what has been fulfilled in order to restore the previous situation and compensate the damage.
Also, there is no difference between null and void contracts even in terms of the principle of partial nullity, namely voidability, although there are no express rules for partial voidability, but I consider that this issue should be addressed by analogy.
Kosovo civil legal theory, the annulment of contract can be done only through a lawsuit for its annulment.
This instrument can be used by the deceived party within one (1) year of learning about the fraud.
If the party does not submit a lawsuit before the court in order to annul such contract, it loses the right to use it, whereas in case of submitting a lawsuit within the legal deadline, the court is obliged to render a decision on its approval or rejection.43 In this context, it is the court decision that determines whether the contract shall be declared invalid or not.
The court decision has a constitutive character.44 Since, the annulment of contract may be complete and partial, it is evident that also the contract concluded by fraud may be completely or partially appealed.45 When a contract concluded under the effects of fraud is annulled the parties may request for the return of delivered items “rei vindicatio”.46 To this situation, as a rule, comes only after the contract has been declared invalid due to the phenomenon of fraud.
The right to request for the return of items belongs to both parties.
The return of items that have been delivered and which are the subject of contract, can be requested through the lawsuit “rei vindicatio”, but if this is impossible then the return of items may be requested through the lawsuit for unjust enrichment.47 40 Compare: Dauti, Berisha, Vokshi, Aliu, op., cit., p. 114.
41 Demircan Nezir, Ansiklopedik Tuürkçe Ingilizce Arapca Sözlük, Istanbul, p. 95.
42 Eren, op.
cit.
(2015), p. 412.
43 Dauti, Berisha, Vokshi, Aliu, op., cit., p. 114.
44 If the court decides to annul, the contract is considered invalid from the beginning "ec tunc" and in principle has the same consequences as the null contract.
45 Dauti, Berisha, Vokshi, Aliu, op., cit., p. 114.
46 “Rei vindicatio” is a legal action by ëhich the plaintiff demands that the defendant returns a thing that belongs to the plaintiff.
47 Yildirim, op., cit., (2017), p. 150.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 224 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… In the contract concluded with fraud, the deceived party, in addition to the abovementioned rights, also enjoys the right for compensation of damage.
Although, this right is proclaimed by the LOR, however it does not clarify whether the deceived party has the right to seek for compensation of damage when he/she does not exercise the right to annul the contract.
Pursuant to Article 100 of the LOR, the party who is guilty of concluding an invalid contract (including contracts concluded by fraud) is liable for the damage caused to the other contracting party, if it did not know or could not have known about causes of annulment.48 Finally, it should be emphasized the fact that the right to seek the compensation of damage does not belong only to the deceived party, but this right is also legally recognized to the other contracting party (if it has suffered damage).
Hence, no contracting party is excluded from the right to compensation of damage, it suffices to argue the fact of damage existence.
FRAUD FROM THE CRIMINAL LAW POINT OF VIEW In Kosovo, from a criminal legal point of view, fraud is treated by the Criminal Code and by the theory of criminal law.
Even in the context of this point of view, shall be elaborated the following matters: notion, constitutive elements, subject, liability and sanctions threatened for the commission of fraud.
a.
The notion of fraud 48 Dauti, Berisha, Vokshi, Aliu, op., cit., p. 115.
49 Criminal Code of the Republic of Kosovo, Article 323, Code no.
06 / L-074, Official Gazette of the Republic of Kosovo, no.
2, 14 January 2019.
Available at: https://gzk.rksgov.net/ActDocumentDetail.aspx?ActID=18413 .
According to the CC, fraud is considered a criminal offense.
Under this Code,49 this criminal offense exists when a person through the false presentation of facts, or by hiding facts, or by using another fraudulent way, and with the purpose of illegally gaining material benefit for himself or another person, or in order to cause material damage to another person, deceives or keeps in error the certain person and thereby incites that person to perform or not to perform an action, which results in material damage to his property or the property of another person, or which results in unlawful property gain to oneself or to another person.
For the commission of fraud, perpetrator can be punished by fine and imprisoned from three (3) months up to ten (10) years.
Even in the Kosovo criminal legal context, the phenomenon of fraud is handled in a very limited way, and only in the context of a text published by criminal law, from a single author and in the only commentary made to CC.
Therefore, concerning this phenomenon so far there is a lack of advanced studies.
According to this poor literature, “fraud is a criminal offense through which the perpetrator brings unlawful material benefit to himself or to another person.50 Being as such fraud is directed against the property in general,51 but it does not present an attack on psychic and intellectual ability as a special personal value and does not even attack security in legal communication.52 In fact, according to this literature, by fraud is implied the act of taking through using lies or abuse of trust the 50 Salihu Ismet, E drejta penale, Pjesa e posaçme, Prishtinë, 2009, p. 354.
51 Salihu, Zhitija, Hasani, op., cit., p. 937.
52 Kambovski Vlado, Kazneno pravo, Poseben del, Skopje, 1997, p. 439. https://gzk.rks-gov.net/ActDocumentDetail.aspx?ActID=18413 https://gzk.rks-gov.net/ActDocumentDetail.aspx?ActID=18413 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 225 property or property rights of a natural person, legal person or state, committed intentionally and for the purpose of material benefit for themselves or for others.53 From what was mentioned above, it can be concluded that fraud in the criminal law perspective implies a criminal offense directed against property which consists in undertaking active fraudulent actions (presentation of false facts, for example, the perpetrator claims to have a house, possesses a sum of money etc.)
and passive (concealment of facts, for example, the perpetrator knows that he has 5,000 euros in his account, but the amount of 50,000 euros were erroneously deposited to his bank account, and when the bank official asks him if he wants to withdraw all these 50,000 euros, he is accorded to this by using the error of bank officials he misappropriates 45,000 euros)54 or keeping in error the deceived person, by inciting him to commit or not to commit any action to the detriment of his property, in order to realize the illegal property benefit for himself or for another person.55 b. Constitutive elements of fraud Similar to the case of civil legal relations (specifically contracts), as well as in the criminal legal context, fraud includes in itself several elements.
Even in the criminal legal point of view as elements of fraud are considered the following: a) the existence of fraudulent action, b) the purpose of fraud, c) the causal link, and d) the existence of damage.56 In the following treatments, due to the similarity of such elements have with the 53 Elezi Ismet, E drejta penale, Pjesa e posaçme I, Tiranë, 1999, p. 139 140.
54 Decision of the High Court of the Republic of Albania, no.
284/2000.
55 Salihu, Zhitija, Hasani, op., cit., p. 937.
56 The authors who deal with the phenomenon of fraud define these elements in different ways, such elements of fraud from the civil legal point of view, shall be discussed very briefly.
1) Fraudulent action: This element of fraud in criminal law is considered to exist when a person in a relationship with another person (natural, legal, state institution etc.)
is served with fraudulent actions, such that keep in error such person.
The deceptive action even in the criminal configuration is conducted through the false presentation of facts (presentation of facts that do not exist, or presentation of facts differently from those that exist) or their concealment (silence of facts, when there was an obligation to tell them).
“For the existence of criminal offense of fraud, it is required that the conduct or misbehavior of a person has been done in order to realize the illegal property benefit for himself or for another, respectively in order for the perpetrator not to have legal basis for this.
Hence, there shall be no criminal offense of fraud if the creditor has fraudulently pushed the debtor to repay the debt.”57 2) The purpose of fraud: In order for the criminal offense of fraud to exist there must be intent to defraud the other person.
This intention is manifested in the desire of perpetrator of fraud to use his false statement or concealment of facts in order to mislead or keep in error the other person in relation to any essential element of legal work of property nature, and with the purpose to realize the illegal material benefit for oneself or the other person.
The purpose of fraud in both civil and criminal law contexts may come from direct or indirect actions.
3) Casual link: For the existence of criminal offense of fraud, an indispensable as the use of a false statement, being aware of the existence of a false statement by the fraudulent party, the purpose of the fraud, the basis of the false statement in the decision-making for concluding the contract, etc.
57 Salihu, Zhitija, Hasani, op., cit., p. 938.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 226 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… condition is the existence of causal link between the act or omission of perpetrator and the conduct or keeping in error the other person (injured party) in relation to any essential element of legal work with property nature.
Therefore, the competent court, before deciding on the allegations of committing the criminal offense of fraud, must verify whether the perpetrator by falsely presenting or concealing the facts has brought the other person into error or has kept him in error.
This implies that, “only usage of fraud in which the passive person is in, it is not sufficient for the existence of criminal offense of fraud.”58 4) Existence of damage.
As a necessary element for the existence of criminal offense of fraud is the existence of material damage.
The caused damage must in any case be as a result of the act or omission of perpetrator (fraudster).59 Due to this reason, it is considered that there is no fraud when the seller in his shop, in order to attract buyers, has posted the real price of the goods at the supposedly discounted price, which in fact does not constitute a discount.
In such situation were not consumed the elements of criminal offense of fraud, as the buyers bought the goods at the existing price and in that case, they were not materially damaged, even though they bought the goods being deceived because they thought they had to do with alleged price reductions.60 In such circumstances, it may be the existence of the criminal offense of deceiving buyers.
c. Subject of fraud The person who commits criminal offense is called the subject of criminal 58 Ibid, p. 938.
59 Buna Gjokë, Kodi penal (i pasuruar me praktikë gjyqësore), Tiranë, 2011, p. 66.
60 The Supreme Court of the former Yugoslavia, AP., No.
54/06.
offense.61 Therefore, the subject of criminal offense of fraud is the person who with the intention to bring to himself or another person any material benefit deceives or misleads the other person or keeps him in error by presenting falsely or by hiding the facts and thereby induces such person to act or not to act to the detriment of his property or the property of another person.62 According to several authors, as subject of criminal offense of fraud is considered, in addition to the person who by his action or omission has harmed the other person by deceiving, misleading or keeping him/her in error, also the person whose fraudulent acts or omissions have remained in the attempt.
According to them, “the perpetrator of this criminal offence is considered the person who has commenced the action to mislead or keep in error the other person, however he has not taken the action which would damage the property of the other person, or has undertaken such action but for other reasons the property of that person has not been damaged.63 Nevertheless, based on the solutions addressed by the CC, the capacity of perpetrator of the criminal offense of fraud cannot be attributed to the person whose fraudulent actions have remained attempted.
This is due to the fact that the Kosovo legislator in paragraph 2 of Article 28 of this Code has explicitly provided that an attempt to commit another criminal offense is punishable only if expressly provided by law, which in the case of fraud does not exist because this legislator with no legal provision specifies the fact of punishment for attempted fraud (Article 323).
61 Salihu Ismet, E drejta penale, Pjesa e përgjithshme, Prishtinë, 2008, p. 189.
62 Kmbovski, op., cit., p. 387.
63 Salihu, Zhitija, Hasani, op., cit., p. 939 – 940.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 227 However, for a person to be considered perpetrator of a criminal offense of fraud, it is required for that person to be liable, to have the age for criminal liability and to have committed the criminal offence by intent.
d. Liability for committing fraud A person is considered criminally liable if at the time of commission of criminal offense, he/she possessed certain psychic qualities, and if he had a certain psychic relationship to the offense he has committed.
In other words, a person is considered criminally liable if he/she was responsible and guilty at the time of commission of criminal offense (he/she has committed the criminal offense intentionally or by negligence).64 Therefore, a person is considered liable for committing the criminal offense of fraud if he/she at the time of committing this offense was responsible (possessed psycho-physical qualities that made him understand the offense and its consequences and had the age for criminal liability) and guilty, respectively of having committed the offense intentionally (to have been aware that the other person was fraudulently incited to act to the detriment of his or her property or that of another person and with the intent of illegally property gain).
Therefore, the criminal offense of fraud does not exist, for example, if the buyer of goods on credit decides after a period of time of concluding contract not to repay the loan and thus realizes illegal property gain.
Consequently, concerning the criminal offense of fraud, the Kosovo legislator determines criminal liability for perpetrator only for cases related to causing consequence (damage), and not for the perpetrator whose 64 Shala Afrim, Hyrje në të drejtën penale, Gjilan, 2013, p. 91.
65 Stanković Nedeljko, Krivično pravo, Opšti dio, Brčko, 2016, p. 187. actions have remained tentative (without the existence of material damage), as exists, for example, in the case of some other criminal offenses (murder or any other offense).
This legislator also specifies the criminal liability of perpetrator at the following levels: the socalled basic, qualified and privileged liability.
e. Punishment of fraud In order to punish fraudulent actions and omissions, concrete criminal sanctions have been provided by the CC.
“Criminal sanctions are measures through which society is protected from criminality, which are imposed by court against the perpetrator of criminal offense, according to the conditions stipulated by law.”65 Being as such, they represent a certain evil that threatens the perpetrator of criminal offense.66 When it comes to the criminal offense of fraud, the Kosovo legislator threatens the perpetrator with a punishment by fine and imprisonment, as classical types of criminal sanctions that dominate when it comes to the possibility of imposing them against perpetrators of criminal offenses.
Consequently, against the perpetrator of criminal offense of fraud CC, depending on the form of commission, provides for the possibility of imposing a punishment by fine and imprisonment from three (3) months up to ten (10) years.
Hence, for the first (ordinary) form of committing this criminal offense, the legislator has provided a punishment by fine and imprisonment from three (3) months up to five (5) years.
For the second (qualified) form when fraud is related to public funds or public institutions, banks, credit unions or other financial institutions 66 Novoselec Petar, Bojanić Igor, Krivično pravo, Opšti dio, Zagreb, 2013, p. 366.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 228 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… and which may result in material damage to them, the legislator has provided a punishment by fine and imprisonment from one (1) year up to eight (8) years.
For the third form (qualified) when the material benefit or damage caused by the fraud exceeds 50,000 euros, the legislator has provided a punishment by fine and imprisonment from three (3) years up to ten (10) years.
Finally, for the fourth form (privileged facilitated) when the fraud results in material benefit of less than 50 euros, the legislator has provided a punishment by fine or imprisonment of up to six (6) months.
In principle, bearing in mind the sentences by means of which the CC threatens the perpetrator of criminal offense of fraud are considered fair.
This is due to the fact that such an approach is estimated to be “in line with the relatively high degree of social dangerousness that this criminal offense represents, related to the relatively high level of its presence in Kosovo society, but without excluding also aspects related to the personality characteristics of perpetrators of this criminal offense.67 Common and Distinctive Features of Fraud from the Law of Obligations and Criminal Law Point of View In the civil and criminal law theory, as well as in Kosovo case law, but perhaps also in other countries, there are many uncertainties regarding the determination of boundary between the civil legal and criminal legal context of fraud phenomenon.
In order to be able to clarify this boundary it is necessary to draw common and distinctive points, of all the above-mentioned issues, which are related to fraud and reflected 67 Compare: Hajdari Azem, Kriminaliteti i organizuar, Prishtinë, 2006, p. 278. within these two substantial areas of justice.
I consider that such an approach is important so that the Kosovo theory and case law (perhaps even beyond), when it comes to the phenomenon of fraud, to take them into account in the treatment of this phenomenon that shall be made in court proceedings in the future.
1.
Regarding the notion of fraud as common points are considered the following: a) LOR and CC as well as the civil law and criminal law theory have defined the notion of fraud.
Hence, the Kosovo legislator and Kosovo legal theory have not abstained from the tendency to give a definition concerning this harmful social phenomenon; and b) The definition of fraud in both these spectrums (civil and criminal) is made within the relevant laws (LOR and CC) and in a limited number of scientific literature.
It has been handled in a single textbook of criminal law the special part and in a commentary of CC and commentary of LOR, as well as in a published scientific paper of one of the authors of this work (Egzonis Hajdari) and within his doctoral dissertation.
This implies that the civil and criminal legal literature is rather vague regarding the issue of defining the phenomenon of fraud, which greatly hinders the understanding of its essence, and especially its differentiation in terms of civil and criminal context.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 229 In meanwhile, as distinctive points regarding the notion of fraud are considered as following: a) In the civil legal terms, is given a very narrow notion of this phenomenon.
The issue is different when it comes to the definition of fraud in criminal legal terms; b) There are clear differences in the definitions of fraud between these two main aspects of these two areas of law.
They mainly relate to the legal instruments, types of liability and consequences, which are part of the definition;68 and c) When it comes to the definition of fraud in the civil legal aspect, the basic postulates of civil law are expressed, and the opposite happens in the definition of fraud in criminal legal aspect.
In essence, in the civil legal aspect, fraud is treated as a defect of will, while in the criminal legal aspect fraud is handled as a criminal offense.
2.
Regarding the elements of fraud as common points are considered as following: a) In both perspectives (civil law and criminal law) the existence of fraud is determined by the existence of its constitutive elements.
This means that the existence of this phenomenon requires the existence of concrete elements which shape this harmful social phenomenon; and b) In the four basic elements of fraud (the existence of fraudulent act, the purpose of fraud, the causal link and the existence of damage) no 68 Compare: Stojanović Zoran, Krivično pravo, Opšti deo, Belgrade, 2019, p. 86. difference is outlined regardless of the point of view of its treatment (civil legal aspect or criminal legal aspect).
Herein lies the essential problem, why legal theory and case law in Kosovo consider the phenomenon of fraud first of all a criminal legal problem, and afterwards a civil legal problem.69 Meanwhile, as a distinguishing point regarding the elements of fraud is considered the fact that the first element from which fraud is established as a defect of will (civil legal context) does not constitute a constitutive element of fraud in the criminal legal context.
This implies that, in accordance with what has been stated above, in the civil legal terms, in order for fraud to exist, a valid contract must exist.
Meanwhile, for the existence of fraud in the criminal point of view, the existence of a valid contract is not necessary.
This means that in the criminal terms fraud is considered to exist in any case when someone undertakes a fraudulent act (whatever it may be, with or without the existence of a valid contract) against another person with whom he is incited to commit or not to commit an act which results in material damage to his property or the property of another person or which results in unlawful material benefit, for himself or another person.
This is an important difference which, in relation to other differences, it may help to clarify the phenomenon of fraud, and its specifics, in dealing with the civil and criminal legal aspects.
3.
In relation to the subject of fraud as common points are considered the following: 69 Compare: Babić Franjo, Krivično pravo, Posebni dio, Zagreb, 1979, p. 177.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 230 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… a) The subject of fraud in both civil and criminal legal context is considered the fraudulent person.
Such may be any person who by his actions or omissions harms the other person by deceiving him/her, misleading or keeping him/her in error regarding an issue, and therefore brings to himself or to another person unlawful material benefit; and b) In civil and criminal legal relations there is a large (perhaps unlimited) number of persons who can receive the epithet of fraudulent subject.
Such may be the contracting party, but also any other person (third party) which in the case of committing fraud can be guided by personal interests, others’ interests, but also on the basis of combined interests.70 In legal theory and contemporary court practice regarding the two spectrums (civil law and criminal law), related to the subject of fraud, is treated extensively also: a) The issue of fraud committed in collaboration (fraud committed from two or more persons by agreement), which is considered to exist when two persons (person A and B), in agreement between them, deceive the other person (person C) by taking a considerable sum of money with the promise that they would give him two rooms and a kitchen in the palace to be built, whereas in fact they took the money and did not build the palace at all; and 70 Combined interests exist, for example, in cases where from the sale of a certain apartment in connection with which fraud has occurred (it is hidden the fact that the building where the apartment will be demolished) has benefited in addition to the seller a third person which may be b) Fraud committed more than once (recurring fraud), which is expressed in cases when the person A cheats several times different persons or the same person, but at different time intervals.71 Meanwhile, as a distinguishing point in relation to the subject of fraud is considered the name given to the fraudulent person.
Hence, the fraudulent person in the relationship of obligations (contractual) is called “fraudulent party” in such relationship, whereas in criminal law the fraudulent person is called perpetrator of criminal offense.
These different names of the subject of fraud are a logical consequence of the basic concepts on which the law of obligations and criminal law are based and shaped.
4.
Common points regarding liability for committing fraud are considered as following: a) The LOR and CC contain concrete norms which determine the liability for the person who commits fraud.
In both situations, the liability for fraud points out the interest that state has undertaken upon itself in order to combat this harmful phenomenon in property relations, respectively the interest to ensure progress of fulfillment of obligations of the parties in such relations; and b) In order to address the issue of liability for the fraudster, it is required an initiative to be the sales agent who knew about this fact but did not tell the buyer and in return received a certain reward from the seller.
71 Elezi Ismet, Komentar i shtesave dhe ndryshimeve në Kodin penal me Ligjin nr.
8733 dated 24.01.2001, Tiranë, 2001, p. 74 75.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 231 implemented concerning the application of relevant court procedure.
This procedure is usually initiated by the deceived party or by other authority which is authorized by law (state prosecutor in the case of criminal liability).
Meanwhile, as distinctive points regarding the liability for committing fraud are considered as following: a) In the field of civil law, the liability is civil law, and it focuses on the annulment of legal work (contract) and compensation of damage, whereas in the field of criminal law is expressed criminal legal liability, liability with the consequence of imposing punishment by imprisonment and by fine; and b) In the criminal legal terms, depending on the value of damage caused by fraud and the scope of this phenomenon, the perpetrator of fraud may be subject to ordinary, qualified and privileged criminal liability,72 whereas these forms of liability, for their nature themselves, we do not encounter in civil legal relations.
In the case of these relationships, as abovementioned, liability has reflections related to the breach of contract, compensation of damage and return of the item.
Finally, I consider that the main distinguishing point could be that the civil legal liability for committing fraud should be related to cases of transactions (purchase sale, etc.)
of items for which the fraudster has any legal supporting basis for instance has the item in his possession, or in cases of fraudulent transactions but related to the 72 Stanković Nedeljko, Krivično pravo, Posebni dio, Brčko, 2017, p. 212. exercise of authorizations that the law recognizes to the person who commits fraud.
Meanwhile, criminal legal liability would be that related to cases of transactions of items for which the fraudster has no supporting basis, for example, sells the foreign apartment by presenting it as his own through forged documents, or in cases of transactions relating to the exercise of authorizations which the law does not recognize to the person committing fraud (exercises actions for which the competence belongs to someone else).
5.
In relation to the punishment of property fraud, as common points are considered the following: a) In both aspects (civil law and criminal law) by the respective laws LOR and CC are provided concrete rules that determine punishment for fraudulent actions or omissions; and b) The punishment in both cases is addressed to the person who has committed the fraud.
He faces the consequences of fraudulent actions or omissions, the consequence of which is causing damage to the deceived person and illegal property benefit for the fraudster or any other person.
Meanwhile, a distinguishing point regarding the punishment of fraud, as abovementioned, is considered the fact that in civil legal terms the punishment extends to the segment of contract annulment, compensation of damage and return of items.
Meanwhile, in the criminal legal aspect, the fraudster is threatened with punishment by imprisonment and fine.
Apparently, in civil legal terms, the penalty focuses either only on Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 232 | Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… annulment of contract, annulment of contract and compensation of damage, or annulment of contract and return of item, and annulment of contract, return of item and compensation of damage.
Whereas, in the criminal legal aspect, punishment includes the imposition of punishment by imprisonment and fine cumulatively, whose height varies depending on the circumstances that characterize the case.
The reflection related to the common points of fraud, observed from the civil and criminal legal point of view, points out the fact of the illegality of this phenomenon, the consequences that it causes and the commitment of legal community to combat it through numerous measures available to society.
Meanwhile, the reflection concerning divergences regarding these two aspects of fraud highlights the need for legal specification of differences, such that would facilitate the courts’ work in the context of when a fraud can only be dealt with in civil proceedings, and when it should attract attention and treatment even in criminal proceedings.
Such difference does not exist in the Kosovo legislation, which has the effect of increasing the number of court cases that deal with this phenomenon, but also the procrastination of court proceedings dealing with fraud.
IV.
CONCLUSION Fraud is an illegal phenomenon, with mainly material consequences for individuals, groups of individuals (organized in the enterprise) and for the entire society.
Fraud observed in the context of relevant civil and criminal legislation incorporates in itself common and distinctive elements.
Such elements are encountered in all issues that in relation to this harmful phenomenon as topics have been addressed within this study (notion, elements, consequences, etc.).
In the theory of civil and criminal law and in the Kosovo case law, but perhaps also in other countries, there are many uncertainties regarding the definition of border between civil and criminal liability in relation to the phenomenon of fraud which results in causing material damage.
The uncertainty in definition of boundary between civil legal liability and criminal legal liability of fraud has influenced that in the judicial aspect this phenomenon, in almost every case, initially to be handled in criminal proceedings, and afterwards in civil proceedings.
This fact, in addition to the burden on judiciary with cases, also affects the length of fraud-related court proceedings, and great delay in possible realization of the rights of injured parties.
In Kosovo, it is necessary that in the future the uncertainties existing regarding fraud to be clarified, initially through a transitional solution which can be made through a specific attitude of the Supreme Court of Kosovo (See: Article 26, paragraph 1, subparagraph 1.4 of the Law on Courts of Kosovo), whereas as a sustainable and longterm solution they should be addressed through the relevant norms and laws.
In both cases it is required to define clear criteria through which this matter would be clarified, in terms of knowing exactly when the courts concerning fraud must conduct criminal proceedings, and when the solution is considered sufficient to address only in civil procedure (of course when this is requested by the parties).
In this regard, I consider that a basic criterion could be one that links the civil liability of fraud to cases of transactions of items for which the fraudster has a supporting legal basis, for instance, is the owner of items, or in cases of transactions related to the exercise of authorizations that the law recognizes to fraudster.
Whereas, criminal legal liability should be related to Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Hajdari, Hajdari, Hajdari, Fraud in the Comperative Perspective of Civil and Criminal Law… | 233 cases of transactions of items for which the fraudster has no supporting basis, for example, he makes the sale of foreign dwellings for which he clearly knows that the documentation he possesses on ownership is forged, or in cases of transactions that are not related to the exercise of its legal responsibilities (exercises actions for which the competence belongs to another official).
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Microsoft Word Baru Newest BLJ 2016 Volume 2-1.docx Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 151 PHYLOSOPHICAL AND CONSTITUSIONAL PROTECTION TOWARDS RELIGION IN INDONESIA Thohir Luth1 Bambang Sugiri2 Nurini Aprilianda3 Rossa Ilma Silfiah4 ABSTRACT Legal protection on religion is certainty for a state with Pancasila principle.
The first principle the Divinity of the Only God has been spirit of the following points, as living guidance for Indonesian country.
The believing of the Divinity of the Only God shows that the Indonesian Republic is religious based country by protecting freedom to have religion for its people.
This regulation has implication in governmental circle, that the country makes Religion Ministry as one of ministries that its existence has the same position to other state institutions.
The implementation of legal protection toward religion needs legitimating in the field of civil law, showed in issuing President Decree No.1 of 1965 on the Preventing of Misuse and/or Religion Staining.
The existence of this Decree in Old Order has been legitimated newly as a Law by issuing the Law No.
5 of 1969, thus the President Decree has been added to the Criminal Code, Act 156a.
Keys term: Legal Protection and Religion Staining 1 2 3 4 I.
INTRODUCTION The Legal Protection on Religion has close relation to freedom for choosing religion.
The freedom to choose religion is one of Human Principle Right that the existence guaranteed by the Fundamental Constitution of 1945 legitimated by the Indonesian Freedom Preparation Committee in August 18 of 1945.
The 1 Lecturer of Law Faculty, Brawijaya University 2 Lecturer of Law Faculty, Brawijaya University 3 Lecturer of Law Faculty, Brawijaya University history of Pancasila formulation as the State Fundamental and Jakarta Charter as the beginning formula of the preamble of the Indonesian Constitution of 1945 were full of debates from these country founders.
The debates has influenced the formulation of Act 29 of the Indonesian Constitution of 1945 protecting the right to choose religion freely for the Indonesian people.
Therefore, it is 4The Student of Doctoral Program of Law Science at University of Brawijaya Malang, Period 2014/2015.
Lecture of Social and Political Science at University of Yudharta, Pasuruan.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 152 necessary to understand the historical series of formulation of state fundamental and constitution in Indonesia related to freedom to choose religion.
Legal Protection on religion does not appear by accident as stated in Pancasila, the Indonesian Constitution of 1945 and Act 156a of KUHP.
However, it began with long history of Indonesia before the Nederland came.
In the time of pre Nederland colonialism, Indonesia had known religion and followed its own religious lessons.
It has been showed in the previous part, thus to cover the philosophical understanding, it need knowledge on the history of Republic Indonesia Founding as well as the born of Pancasila and The Indonesian Constitution of 1945.
Act 29 of the Indonesian Constitution of 1945 has been the Legal Base for the Country to intervene the living of religious people in Indonesia.
Beginning from Jakarta Charter on June, 22 of 1945 as the basic of Constitutional formulation in Indonesia, the Act 29 of the Indonesian Constitution 1945 has great role in the living of Islamic people.
The statement 5 Jazim Hamidi, Husnu Abadi, Intervensi Negara terhadap Agama, (Yogyakarta: UII Press, 2001), p. 135 appears in the President Soekarno mandate in front of Konstutuante Meeting in 1959; the Speech has title “Res Publica, sekali lagi Res Publica” also included in the president consideration Decree on July, 5 of 1959.
Thus, if there is statement that the Islamic Legal for Islamic People of Indonesian People has its own spirit to be applied based on the First point the Divinity of the Only God, Act 29 of the Indonesian Constitution of 1945, and President’s Decree.5 Oemar Seno Adji said the relation of Country, Religion and Criminal Law.
State politic toward religion, whether it based on unity between state and religion, or it showed separation between state and religion, or it followed certain religious legal system, would bring reflection and impact toward the problem of religious offence.
The freedom to choose religion and to devout do not mean that every one may give statements and do activities that violate the religious principle, contact sense of society religion or destroy peace among the religious groups.6 Thus, the freedom to choose religion and devotion need 6 Oemar Seno Adji, Hukum (Acara) Pidana dalam Prospeksi, (Jakarta: Penerbit Erlangga, Anggota IKAPI, 1981), p. 105 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 153 limitations to protect the religion and sense of religion.
Based on the background, it needs to give question on the meaning of legal protection on the religion in Indonesian by showing its forms.
By showing the form of legal protection, it concretely appears the relation between country and religion arranged in the Indonesian constitution of 1945 that then explained with penal and non penal policy.
II.
RESEARCH METHOD This journal is result of normative legal research Journal using statute approach and historical approach to search the history behind issuing Act 156a of the Criminal Code and find out the philosophy development in line with appearing the 156a the Criminal Code.7 From the appearing of the Statute No.
1/PNPS/ 1965 to the decision of Constitution Court Number 140/PUUVII/2009 dated 19 April 2010 on the Statute No.
1/PNPS/ 1965 on the Prevention of Misuse and/or Religion Staining.
7 Peter Mahmud Marzuki, Penelitian Hukum, (Jakarta: Kencana Prenada Media Group, 2013), p. 137.
8 The Liang Gie dalam buku Pengantar Filsafat Ilmu, dikutip oleh Supardan Modeong, III.
RESULT AND ANALYSIS Based on the sayings of Marcus Tullius Cicero the Rome Philosophy’s stating that Ubi Societas Ubi Ius (where there is society, there will be law), any nation in the world absolutely has law or at least simple rule to put in order between the individual and other.
Other saying of M.T.
Cicero is Ars Vitae or “the art of life, meaning knowledge of life.8 This saying certainly was based on observation of the life of nations in that time.
Philosophy or life principle of a nation of course based on good values then became source and guidance in implementing country and nation life.
In line with legal norm hierarchy, Hans Kelsen stated his theory on legal norm steps (Stufentheorie).
This theory said that legal norms had hierarchy and layers in a governance hierarchy.
In this case, the lower norm applied, sourced, and based on the higher norm.
The higher norm applied, sourced and based on the higher and higher norm.
It happens continuously till norm where there is no way to search more and has been hypothetic and fictive ones, or Basic Norm (Grundnorm).9 The TeknikPerundang-undangan di Indonesia, (Jakarta: Perca, 2003), p. 52 9 Hans Kelsen cited by Maria Farida Indrati Soeprapto, Ilmu Perundang-undangan: DasarBrawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 154 searching of Basic Norm (Grundnorm) in the theory of Strata Legal Hierarchy (Stufentheorie) in Indonesia has been visualized in a consideration of regulation.
The First Phrase in a regulation refers to Transcendental Philosophy Fundamental (Vertical), and the Second Phrase refers to Society Philosophy fundamental (Horizontal).10 Therefore, it needs Transcendental Philosophy Fundamental discussing religious norms (in this case Islamic Law) to analyze the applying of act 156a KUHP and Society Philosophy fundamental discussing the history of legal formulation in Indonesia.
Muhammad Tahir Azhary has explained in detail the relation of religion, law, and country as Theory of Concentric Circle.
The three components—religion, law, and country—when they are put together will create concentric circle as a unit and conecting one and another.
Religion as the first component has position of the deepest circle.
Then, law places in the next circle.
The effect of religion toward law is very big because religion is the dasar dan Pembentukannya, (Yogyakarta: Kanisius, 1998), p. 25 10 Supardan Modeong, Teknik Perundangundangan di Indonesia, (Jakarta: Perca, 2003) p. 52 main source of the law besides the ratio as complementer source.
Country is the third component and place in the last circle.
The position shows that in the concentric circle, country covers the first two components, religion and law.
The following is picture of the concentric circle theory as stated by Muhammad Tahir Azhary:11 In the Custom law of Bali, it has known as Awig-Awig structured and should be obeyed by krama (society) of the custom village/pekraman in Bali to achieve Tri Sukerta.
Tri Sukerta covers Sukerta tata Parahyangan (harmony in relation between human and the God), Sukerta tata Pawongan (harmony in the relation among the human), and Sukerta tata Palemahan (harmony in relation between human and its environment), as 11Muhammad Tahir Azhary, Negara Hukum: Suatu Studi tentang Prinsip-prinsipnya Dilihat dari Segi Hukum Islam, Implementasinya pada Periode Madinah dan Masa Kini, (Jakarta: Prenada Media, 2003), p. 67-68 religion country law Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 155 the form of the lesson in Tri Hita Karana.12 The existence of Custom Law in Bali is full of social life from the society, thus the cultural values kept before the independence day have existed in developing civilized society.
Moreover, in discussing philosophical fundamental of a regulation, it cannot be separated from historical approach as its background, because history is the living development of a country.
The existence of Act 156a of the Criminal Code purposed to protect religion from any kinds of misuse and staining, of course get influence from the long history of Indonesia before the Nederland came to Indonesia.
The existence of Custom Legal and Religious Legal have great role in formulating legal in Indonesia.
Thus, the following part explains the legal history in Nusantara from before The Nederland Colonial to the time of freedom.
Pancasila is ideology of Indonesian country and philosophy of country and nation living.
The first principle the Divinity of the Only God has been agreed as the First point and bases of the following points.
It has been 12http://www.kompasiana.com/dewasemadi/awig-awig-sebagai-produk-hukum-adatdi-bali_55d4af69c022bd8711555fc4 stated in the Preamble of the Indonesian Constitution of 1945, and explained in the Body of Chapter XI on Religion Act 29.
Thus, the living guidance placed in Pancasila is religious one.
The first point refers to a joint in living the country and nation.
Pancasila as the fundamental for the nation has placed the Point of the Divinity of the Only God as its First Point.
It becomes philosophical base for Indonesia to restate through Constitution namely the Fundamental Constitution of Indonesian Republic 1945, exactly in Act 29.
From this hierarchy, it has known statement that Indonesia is not secular country that separates country from religion.
However, Indonesia is not country based on certain religion, but Indonesia is unity country that gives freedom to its citizen to choose one certain religion.
It also bases on the Indonesian Constitution 1945 Act 28E; (1) Anyone has freedom to believe religion and do praying based on the religion, to choose education and learning, to choose job, to choose nationality, to choose place to live in country area and leave it also right to comeback.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 156 (2) Anyone has right of freedom to believe in faith to give idea and behavior based on his conscience.
The fundamental regulation in the Preamble of the Fundamental Constitution 1945 specifically involves right to have religion collaborated with the constitutional right and duty, for the country and its people as explained in the following points: 1.
First, the regulation is general and fundamental, meaning that country bases on the Divinity of the Only God, and therefore the country constitutionally must guarantee freedom for its people to believe and do praying based on his religion.
2.
Second, the regulation having force constitutionally that the President as the country implementer must swear based on his religion.
In this case, Muslim has to begin with Demi Allah (By God).
3.
Third, the regulation giving constitutional right/authority to Local Representative Committee (DPD) to give advice to Indonesian Legislative Assembly of the law plan, such as on religion and participate in supervising the legal implementation.
4.
Fourth, the regulation requiring country to form adjudication forum in giving service to the Moslem society to resolve a problem on Islamic law in certain fields.
5.
Fifth, the regulation giving constitutional right to anyone to freely choose religion and do praying based on the religion.
6.
Sixth, the regulation categorizing religious right as human right that cannot be limited in any condition.
7.
Seventh, the regulation making the religious values as constitutional requirement in implementing constitutional right/duty to the country in giving limitation in conducting someone’s right and freedom.
Together, it also gives order constitutionally to anyone to follow the limitation.
8.
Eighth, the regulation requiring the government to effort and conduct National Education System in order to develop faith Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 157 and piety as well as good morals.
Also, the government must advance the science and technology by giving priority to the religious values.13 9.
Ninth, in the Preamble of the Fundamental Constitution of 1945, Indonesia expresses the feeling of thank God for the freedom obtained, “In the mercy of the Only God...” 10.
Tenth, in the part of preamble before consideration of any regulation lies statement “In the mercy of the Only God”.
11.
Eleventh, any Judge decision involves the beginning statement as “With based on justice based on The Divinity of the Only God”.
Religion has important role in the country and nation life, where the country focus in line with implementation of religious life as showed in any fields, especially in Education Field by putting Religion Education as Lesson Subject from Elementary Level to College.
From this 13 Ahmad Fadlil Sumadi, Hak Konstitusional Beragama dan Mahkamah Konstitusi, Harmoni Jurnal Multikultural dan Multireligius, Vol.
11 Nomor 2 April – Juni 2012, p. 9 Education Field, it has formed religious generation, thus the religious effect has widen in various fields, as show how the generation participate in their fields.
The relation between country and religion in Indonesia appears in existence of religious boards, regulation relating with religion or religious life, and other policies relating with religious life.
This relation practically has appeared in activity of country implementation expressed by country executor, such as reading pray in ceremonial events and praying together for Moslem.
The morals of the principles in specific and the country in general have effected to the understanding, comprehension and implementation of Pancasila and the Fundamental Constitution 1945.
Pancasila according to Mohammad Hatta, one of the religious Proclamer, has 2 layer fundamentals, namely: politic and moral (religious ethics) fundamentals.
The Divinity of the Only God becomes base of guiding the Indonesian future, gives soul to obtain right, justice and good implementation.14 Soekarno also stated 14 Mohammad Hatta dalam Ahmad Sukardja, p. 192 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 158 his opinion in July 1 of 1945 that it no needed to build a country based on religion base, but the religious values could be crystallized became law through struggle in the Indonesian Legislative Assembly.15 Indonesia with Pancaila as its base, according to Soeharto, is not theocratic country, it is not secular.
The Pancasila society is religious social society.
Religion has honor place in life of personal, family, society and country.
The Country Guidance Patterns strictly state that religion is fundamental of ethics, morals, and spiritual for implementation of national development.
Soeharto pointed that as religious country we do not want our religious consciousness disappear.
For us, religion has important value in our country spiritual and mental defensive.16 Hazairin, a Professor of Custom Law and Islamic law, hasdisagreed to West Opinion separating Law and Religion.
“Law is not the only part of society life form that focuses only to existed elements in communication between human in the society.
Besides, the 15 Soekarno dalam Mahfud MD, Membangun Politik Hukum, Menegakkan Konstitusi, (Jakarta: Rajagrafindo Persada, 2010), p. 283 relation between human and society of human, anyone as society personnel has—willing or not—relation to the spirit or the Great Spirit, that the relation to his God, the Only God, to whom someone count on for his life and dead, as well as his safety in his society.”17 The conclusion of Hazairin’s idea, that legal affair is not the only human’s, but it also the God’s affair that has create the human.
Hazairin also stated that even the law had been perfectly created, it could not yet able to create justice, but it only became the main guidance to achieve justice.
Human is very weak and limited to be able to apply justice ideally.
The following part briefly explains the governmental afford in physical and non-physical development related with religion and continuity religion in Indonesia, especially Islamic Religion.
It is form of country responsibility in giving protection to its people in conducting praying based on religious lesson in Indonesia.
16 Soeharto dalam Ahmad Sukardja, Op Cit, p. 196 17 Hazairin dalam ThahirAzhari, p. 61-62 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 159 a) Religion Institution Religion Ministry Among the non secular country characteristics is the existence of religious institutions, officially created by the government and in the permission of the government.
Some of religious institutions official created by the government involve: Religion Ministry, state religion educational institution and Religion Court.
The Islamic religion Institution building with the governmental permission involve Indonesian Islamic Leader Committee (MUI), private Islamic educational institution, Qur’an Tilawah Development Institution (LPTQ) and Indonesian Muamalah Bank (BMI).
The Religion Ministry was build on January, 3, 1946, and part of the governmental institutions of Indonesian Republic.
Based on the time of founding, about five months after Indonesian freedom, this Ministry considered old ones.
Since its founding till now, this Ministry has existed to serve the people in religious field.
Every parliament forming, the government always keeps the existence of Religion Ministry.18 18 Department of Religion in Ahmad Sukardja, p. 198 From Historical View, it has known that Indonesia is religious country, meaning that it has strong belief to the God.
The belief to the God is expressed by Indonesian people in their life behavior in line with their own religious lessons, and they have tolerant behavior toward different religious people.
Religions of Hindu, Buddha, and Islamic have been believed by Indonesian country, long ago before the Nederland intervenes Indonesia.
Catholic and Protestant have developed together with the coming and spreading of West nations in Indonesia.19 The idea of Religion Ministry founding appeared from Islamic leaders in the Committee of Indonesian Freedom Preparation Efforts Investigator (BPUPKI).
After obtaining freedom, the idea was struggled through the Center Indonesian National Committee Worker Assembly (BPKNIP) in the purpose that in Indonesia the religion affair became responsibility of specific department.
Finally, the effort succeed by being issued President Decree in 1946 Number 1/SD in January, 3, 1946 on Founding of Religion Department, after 19 Aqib Suminto, Politik Islam Hindia Belanda, (Jakarta: LP3ES, 1985), p. 16-17 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 160 KNIP in aclamation achieved opinion of founding the Religion Department.20 From Sociopolitical View, the role of political movements based on religion in fighting for freedom cannot be ignored.
The religious spirit has been background of the Indonesian struggle in defeating the colonial.
Many religious leaders appeared to lead people’s struggle and fight against the colonial.
The Political Party based on Islamic principle also appeared.
Thus, it came to appear idea of Islamic based Country and Jakarta Charter stating the First Principle Party “The Divinity by requiring doing Islamic Rules for its believers”.
Before the Preamble of the Indonesian Constitution of 1945 officially decided in August 8, 1945, because some parties stated objection with the above formula, some changes was made and the new statement agreed by PPKI, the statement “the Divinity of the Only God”.
From Juridical view, the background of Religion Ministry founding can be found in the Preamble of Indonesian Constitution of 1945 containing philosophy of Pancasila and from the Body of Indonesian 20 Departemen Agama, dalam Ahmad Sukardja, p. 199 21 BJ Boland, The Struggle Of Islam In Modern Indonesiadan Daniel Lev, Peradilan Agama Constitution of 1945.
The Preamble of Indonesian Constitution of 1945 in third paragraph states “In the mercy of the Only Great God and supported by honest willingness to have free country life, the Indonesian people states its independence.
“ In the fourth paragraph, it states formula of Pancasila with the first principle stating the Divinity of the Only God.
It is supported in the Body Act 29 on Religion.
The formula becomes constitutional fundamental of the religion position in the Indonesian republic and shows what firm the relation of religion and country in Indonesia.
The West writers considered the fact to be unique in the modern governmental system.21 Deliar Noer stated that the religion problem officially arranged by the government through religion department, a unique department in Indonesia.
This department not only arranges one religion, but it covers all accepted religions; namely Islamic, Protestant, Catholic, Hindu and Buddha.22 Religious Educational Institution Islam di Indonesia (terj.
Zaini Ahmad Noeh) dalam Ahmad Sukardja, Op Cit, p. 201 22 Deliar Noer, dalam Ahmad Sukardja, p 201 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 161 In the time Nederland and Japanese colonials, the Islamic education became responsibility of the society.
Schools and learning place for Islamic was built by society.
The colonial government had never built Islamic school with status of state school.
The religion education covered by society/private called “madrasah” and “pesantren”.
While the colonial government conducted secular and non religion education.
After Indonesia had been independent and officially built the Religion Department in 1946, many parties demanded that the Department also gave training and guidance to madrasah and other Islamic education institutions.
This department also hopefully gave Islamic lesson in general schools.
Then, in December 1946, the Educational, Learning and Culture Ministry and Religion Ministry together issued regulation deciding the existence religion lesson in lower schools, from IV Class.
This regulation applied since January, 1, 1947, and became the first legal base to implement religion lesson in public schools by state institution.
23 Ahmad Sukardja, hlm.
203-204 24 Indonesian Act Number 2 Year1989on National Education System Article 39 par.
(2).
In The position of Religion Education became more stable with the Decision of Temporary Representative Assembly (MPRS) in 1960 – 1966 deciding religion lesson in curriculum given from Elementary School to College.23 The development of Religion Education has advanced from time to time, with any policies decided by Central Government to the Local.
In the law of National Educational System, it states: “the content of curriculum in any kind, path and level of education must includes: Pancasila, Religion and Nationality Educations.”24 Also, the number of educational institutions below the Religion Ministry is getting increase, in other word; it shows that the interest of society to religion education is getting stronger.
Religious Court Institution The proof that Indonesia is not secular one is the founding of Religion Court as one of state institution since the colonial time.
Nevertheless in that time, the authority of Religion Court was limited by separating authority of Court in Java and outside Java.
Till the Japanese time, the position and authority Act Number.
20 Year 2003 Pancasila Subject has been deleted.
Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 162 of Religion Court had not changed.25 Since 1830, the Religion Court was conducted by Muslim leader and had existed since 16 century below the Colonial Court supervision, namely Landraad or State Court through regulation that the decision of Religion court could not be applied before the Head of Landraad had agreed for the decision execution with executoire verklaring (statement to execution).26 In 1882, the Colonial Government constructed the Religion Court through decision of Nederland King included in Staatsblad 1882 Number 152 arranging that in Java and Madura had been conducted Religion Court called Presterraad or Priest Board.
The reason was because Nederland considered Muslim leader the same as priest.
The similarity was criticized by Notosusanto, for in Islamic there was no clergy structure or pandri.
The mistake also got claim from Snouck Hurgronje stated it was result of superficiality of Nederland Government.27 Whereas the cases becoming the authority of Religion Court included; marriage, guardianship, matters of pertaining inheritance, grant, religious foundation, alms, and treasury.
25 Ahmad Sukardja, p. 206 26 Ija Suntana, Politik Hukum Islam, (Bandung: Pustaka Setia, 2014), p. 108 The existence of Religion Court was getting strong with the Law Number 7 of 1989 on Religion Court.
The Religion Court was one of court having the same position as General Court, Military Court, and Administrative Court.
The purpose of the law was to create legal unity arranging the Religion Court.
Structurally, the institution of Religion Court was below the Religion Department control.
Functionally, this court was below Constitutional Court, as other courts.
In line with the change of time, the Religion Court has changed, that the law Number 50 of 2009 on the Second Change of the Law Number 7 of 1989 on the Religion Court.
Act 49 verse (1) the Law of Religion Court stated that the authority of Religion Court covered to check, decide and solve cases among Moslem people in field of weeding, matters of pertaining inheritance, dying exhortation, grant, religious foundation, and alms.
The authority then widen by appearing of economic problem, in which the authority of Religion Court was not only limited by problem of Islamic (Syari’ah) based bank, but it also covered field of islamic economy.
27 Ibid, p. 109 113 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 163 Some of them included micro financial board with islamic law, islamic insurance, islamic reinsurance , reksa dana syari’ah, obligation and islamic middle term contract, islamic security, pension fund of islamic financial board and islamic business.
Indonesian Council of Ulama The Indonesian Counsil of Ulama had been built since the government of President Soekarno; previously it was the West Java Committee in July 1958.
The Counsil in central level was built in 1962, and then continued by forming the same Committee in other provinces.
In 1975, the new version of Islamic Leader Committee was formed called the Indonesian Counsil of Ulama (MUI).
Like the old version, the idea of this new version was conducted by the government.
By founding MUI, the government realized that development was not only related to material aspect, but it also covered spiritual aspect.28 Thus, it needed to do the corporation between Islamic leaders and government to develop the country with dignity.
28 Ahmad Sukardja, Op Cit, p. 209 The principle guidance of MUI has formulated the function of MUI as follow:29 1.
Issue rule and advice on religious and society problem to the government and Islamic people in general as amar ma’ruf nahi munkar in the effort to increase national defensive.
2.
Strengthen ukhuwah islamiyah and conduct harmony between religious people in creating national unity and integrity.
3.
Representation Islamic people in Consultant between Religious People.
4.
Relation between Islamic leader and government and become interpreter feedback between government and the people in order to achieve national development.
5.
The Indonesian Counsil of Ulama does not do politic and not operational ones.
The guidance of MUI shows the governmental need on MUI is bigger than the need of Islamic people.
However it needs to add that in the need 29 Majelis Ulama Seluruh Indonesia dalam Ahmad Sukardja, p. 209-210 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 164 of government containing the need of Islamic people, because the government arranges and guides its people, while majority of the people are Muslim.
The second and third formulas place MUI opposite to other religion group.
It states that MUI needs to keep living in harmony with group of other religion as the representative of Muslim.
b) The Regulation Marriage Law The Government of Nederland Colonial considered that family was form of the first political interest.
The family forming began with marriage.
In that time, Indonesia in conducting marriage followed its own religious lesson without any governmental intervene.
Finally, in 1937, Nederland made Draft of Marriage Law (RUUP), in the purpose of being easier to control the people and the family.
However, the Draft got reaction and claim from Nahdlatul Ulama and Muhammadiyah.
Both organizations agreed to build Indonesian Islamic Committee of A’la (MIAI) 1937 to against the Draft.30 Thus, the Nederland effort got no result.
After freedom in Period of Old Order in 1950, Indonesia tried to create 30 Ija Suntana, p. 111 marriage law nationally by forming specific committee headed by Teuku Muhammad Hasan.
There were two draft proposed, the first was draft proposed by the committee and the second was draft proposed by nationalist and discussed in Indonesian legislative Assembly in 1958.
Both drafts could not be finished.
The same condition happened in July 1973, the government proposed the new Draft of Marriage Law.
However, the Draft got claim from Islamic people because it considered not appropriate to the Islamic lesson.31 In the time of New Order in 1974, big change and fundamental for the Marriage Law in Indonesia happened.
In January, 2 of 1974, the Law number 1 of 1974 on Marriage was decided.
Strictly, Act 66 stated: “To marry and anything relates to the marriage based on this law, thus by issuing this law, regulation arranged in the Civil Code (Burgerlijk Wetbook), Ordination of Christian Indonesian Marriage (Huwelijks Ordonantie Christen Indonesiers) S. 1933 No.
74, Mixed Marriage Regulation (Regeling op de gemengde Huwelijken) S. 1898 No.
158, and other regulations ruling on marriage 31 Ahmad Sukardja, p. 212 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 165 covered in this law consider to be invalid.” The marriage Law No.
1 of 1974 has decided religion as key point of legitimating of a marriage, as formulated in Act 2.
Thus, marriage in Indonesia follow religious marriage (religion based marriage).
This regulation ends period of civil marriage, a secular marriage formulated in Act 26 of Civil Code (Burgerlijk Wetbook) stating that “The law considers a marriage is only civil relation”.32 Hazairin pointed that based on the Law of Marriage the Islamic people have no possibility to marry by violate the Islamic lesson.
It also happens to other people of Buddha, Hindu and Kristen that forbidden to marry by violate their religious lesson.33 Matters of Pertaining Inheritance Matters of pertaining inheritance are arranged in Islamic law Compilation structured in the second Book.
The Law arranged based on Faraidl science, science of regulation in dividing matters of pertaining inheritance following Islamic Law.34 Religious Foundation 32 Ahmad Sukardja, p. 212 33 Ibid, p. 213 The rule of religious foundation covered in the Third Part of Islamic law Compilation.
In specific related to religious foundation of privately own land in Indonesia, it has decided the Governmental Regulation Number 28 of 1977 on the religious foundation for privately own land.
The regulation has constructed as implementation regulation of regulation Act 49 verse (3) of the Law Number 5 in 1960 on the Fundamental Regulation of Agrarian Principle stating: “The religious Foundation of privately own land has been protected and arranged by the Governmental Regulation”.
In the Regulation, it focuses on The Statement Certificate Religious Foundation as written proof to guarantee the continuity of the donated land and avoid intersection from its position as donated land.
In the Islamic Law Compilation, it constructs regulation of the religious foundation covering all goods accepted as donated ones.35 Tithe Tithe is Islamic Pillar containing social element, and any Muslim require 34 Ibid, p. 214 35 Ahmad Sukardja, p. 214-215 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 166 giving part of his property to help the poor.
Thus, duty to give tithe is a way to achieve harmony between human and the God also the relation between one people to another.
Therefore, it achieve welfare society because one and another helping each other.
The purpose of the tithe has the same point as the state purpose included in the preamble of the Indonesian Constitution 1945, to develop general welfare.
The first regulation of tithe in Indonesia was the Letter of Religion Ministry No.A/VII/17367 in 1951 following the regulation Nederland ordinance that state did not intervene the problem of getting and giving the tithe, but it only controlled.36 Again, the government gave attention in implementation of tithe since the government of president Soeharto preparing Regulation Draft of tithe to propose to the Indonesian Legislative Assembly to be agreed as the law, but it failed.
Then in 1968, the government issued Board Construction of Amil Zakat and Religion Ministry Regulation Number 5 in 1968 on the construction of Baitul Mal (Board of Wealthy Property) in province and Regency/City.
36 https://pujohari.wordpress.com/2009/09/15/sejar ah-pengelolaan-zis-di-indonesia/ In 1990s, the behavior of government changed.
In 1991, the government issued Collective Decision Letter of Home affair Ministry and Religion Ministry of Indonesian Republic Number 29 and 47 in 1991 on Training for Board of Amil Tithe, Alms and Sadaqah and instruction of Home affair Ministry Number 7 in 1998 on the training of Board Amil Tithe and Sadaqah.37 Finally, in 1999, the government issued the law Number 38 in 1999 on Management of Tithe recently revised in the Law Number 23 in 2011.
Conducting Haji Previously, the Indonesian haji in doing devout haji individually departed using ship together with private party.
It took months even 2 years in doing this devotion.
Since 1970, by the President Decree Number 22 in 1969, the affair of journey haji was arranged by the government through the Religion Department) now called the Religion Ministry).
In the Reform Era, the conducting haji was arranged in the law Number 13 in 2008 on Conducting Haji stating that the policy and conducting 37 https://pujohari.wordpress.com/2009/09/15/sejar ah-pengelolaan-zis-di-indonesia/ Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 167 haji became national task and responsibility of the government (act 8 verse 2).
In this case, the government has duty to give training, service and protection by giving facilities, easiness, safety, and conformity needed by any citizen (Muslim) in doing haji.38 The Law No.
1 PNPS of 1965 The Law of prevention on misuse and/or staining religion became small part among the criminal legal policy in general.
Specifically, the law came to be safety key for succeeding religious life.
The policy honestly was integral part of the social policy in general in a country.
Meaning, the policy purposed as effort to create social welfare.39 TAP MPR Number VII/MPR/2001 on the Future Indonesian Vision, act 2 Chapter IV point 1, stating that Indonesian Vision in 2020 covered:40 a.
Achievement of religious society, having obedience, and good morals that the religious lesson, specially the universal ones and cultural values in this case honesty, being interpreted and applied in daily behavior.
38 http://eprints.uns.ac.id/2748/ 39 Barda Nawawi Arief, Op Cit, p. 4 b.
Achievement of internal tolerant and among the religious people.
c. Achievement of honor toward human dignity.
Beside to guarantee the freedom of any citizen to choose a certain religion, the country has to effort that there would not happen any staining toward certain religion.
It appeared in applying the law number 5 in 1969 on the Statement of Various President Decision and Decree as the Law.
This law decided the President Decision as the law, including the Indonesian President Decision Number 1 of 1965 on the Preventing Misuse and/or Staining Religion.
In the law explanation, it stated that the reasons of issuing the President Decision as follow: 1.
The President Decree in July 5 1959 deciding the Indonesian Constitution of 1945 applied for all the Indonesian people had stated that Jakarta Charter dated 22 June 1945 had been soul and a unity of the constitution.
According to the Constitution, the Country based on: 40 TAP MPR Nomor VII/MPR/2001 on Indonesian Future Vision Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 168 1) The Divinity of The Only God; 2) Justice and Honor Humanity; 3) The Indonesian Unity; 4) Democracy; 5) Social Welfare; As the First base, the Divinity of The Only God does not only place morals above the country and the government, but also guarantee the national unity based on religion.
The accepting of the First Principle cannot be separated from religion, because it refers to one of main pillar of the human life and for Indonesia refers to state life joint and absolute element in effort of nation building.
2.
As fact, recently almost in all part of Indonesia appear many ideologies belief/faith organizations against the religious lesson and law.
Among the lesson/behaviors of the ideology followers, many have resulted in action against the law; destroy the national integrity and staining the religion.
From the fact, it is clear that the social belief/faith ideology/organization misusing/and/or using the religion as main has been getting increase and has developed to the dangerous way for the available religions.
3.
To prevent the problem in order not to destroy the state and national integrity, in line with the national awareness and Leadership Democracy, it needs to issue President Decision as realization of the President decree in July 5 1959 referring one way to implement Governance and religion, that all people in Indonesia could feel conformity in having religion and guarantee to do devotion based on the religion.
4.
In line with the purpose of developing conformity to have religion, the president decision firstly purposes to prevent the possibility of any misuse of religious lesson considered as main lesson by the leader of certain religion (act 1-3); secondly, the rule protect the religious conformity of staining/contemptible also from lesson to not choose religion Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 169 based on the Divinity of The Only God.
5.
The religious misuses41 clearly became criminal action considered not to be arranged in this rule.
Therefore, it is enough to arrange them in any available criminal rule.
Using the president decision, it does not purpose to influence the life of religions accepted by the government before the president decision issued.42 Based on the above explanation on the forms of state protection toward religion, it proves that Indonesia realize that religion refers to human guidance.
Religion make Indonesian people become more honor and religion become source of searching life legal norm of Indonesian state.
The Indonesian confession, that freedom has obtained in the mercy of the Only God.
It is clearly to step and fill the freedom in living the state and nation to always hoping the God willingness.
Various kinds of state protections toward religion result in consequence for the country to make criminal rule, in the Act 156a of the criminal Code as 41 See further Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, Op Cit, p. 325 additional of the Law PNPS No.
1 of 1965.
Thus, the existence of Act 156a of the criminal code for 51 years have given protection toward religious life in Indonesia.
Although its existence has resulted in pro-contra, it is able to give solution to minimize appearing of religion staining in Indonesia.
Thus, to keep the state and nation integrity based on Pancasila with The Divinity of The Only God as the first principle, with any background covering, in 1965 it had decided the Law number 1 PNPS on the prevention of Misuse and/or Staining of Religion including in State Paper Number 3 in 1965.
Act 4 of the law a-quo decided additional Act 156a in the Criminal Code.
The purpose of issuing the Law; first, to prevent deviation of religious ideology considered to be main ideology of the leader from certain religion, as stated in Act 1-3 of the law a-quo.
Second, to protect religious tranquility from staining/contemptible also to protect from ideology to not choose religion based on the Divinity of the Only God, as stated in Act 4 of the law a-quo.43 42 General Explanation Act PNPS No.
1 Year 1965 43 Considerant Act PNPS No.
1 Year 1965 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 170 The guarantee from the state on the existence of religion and the freedom to belief in a religion is no need to hesitate anymore.
The long journey to the independence followed with nationalism and religious interest for all religious people in Indonesia.
The speech of Muh.
Yamin, Soetomo and Ir.
Soekarno on the state fundamental referred to religious morals, especially Islamic.
As the consequence, it is fair if there is any preventive and repressive affords to cope with all staining problem on religion and freedom to belief it.
The discussion of Act 156a the Criminal Code cannot be separated from history of the appearance act 156 the Criminal Code.
This act 156 the Criminal Code is close related to history of Criminal law.
Before talking about the history, here is the content of Act 156 the Criminal Code; “Anyone in front of public who states feeling of hostility, anger or contemptible toward one or more group of Indonesian people, he is punished for maximum 4 years in prison or fine maximum four thousands five hundreds rupiah”.
44 R. Soesilo, Kitab Undang-undang Hukum Pidana, (Bogor: Politeia, 1969), p. 61 Jurisprudential of the Indonesian Supreme Court issued in 197744 stated that in line with the history Act 154 and 156 the Criminal Code together with their additional acts, including criminal action such as hostility, anger, and underestimate (uiting gaven van gevoelens van wijandschap, haat of minachting), purposed to Indonesian government (tegen de meet groepender bevolking van Indonesia), Act 154 the Criminal Code.
On one or more group of Indonesian people (tegen en meet groepender bevolking van Indonesia), taken from acts 124A and 153A British Indian Penal Code and making criminal based on acts or in its explanation of the actions “brings or attempts to bring into hatred or contempts or excites or attempts to excite disaffection towards” the government.
The term/statement of “disaffection” means all feeling of hostility, that there is an identity of criminal action as in act 154 and 156 the Criminal Code, that express hostility statement, anger and underestimate or to bring into hatred contempts of feelings of enmity” in acts 124A and 153A British Indian Penal Code.45 45 Indonesian Constitutional Court Jurisprudence RI, I-II, 1977, p. 16 cited by Juhaya S. Prajadan Ahmad Syihabudin, Delik Agama dalam Hukum Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 171 The existence of act 156 the Criminal Code, before freedom, had full of political element.
Oemar Seno Adji in his book the Criminal Legal (process) in prospection stated that act 156 the Criminal Code not separated from Act 154 the Criminal Code both of them categorized as “haatzaai-artikelen”, created to certain purpose, to interest of “colonial administration”.
However, the acts actually could not be applied in Nederland.
These acts purposed to fill the need of koloniale samenleving as stated by “Commissie voor Privaat-en Straftrecht” Nederland.46 This act was additional “haatzaai artikelen”, object of action in this act was action made into criminal case by group of people such as different group like religious group.
Apart from history of implementing act 154 and 156 the Criminal Code, Act 156a in its development in Indonesia, materially still necessary indeed.
The religion problem closed related to State Base Pancasila and the Fundamental Constitution 1945.
The principle of the divinity of the Only God is accepted by all religion in Indonesia, thus in its Pidana Indonesia, (Bandung: Angkasa, 1982), p. 39 46 Schepper, Het Gevaarvoor de Vrijheid van Godsdienstige Belijdeniste Duchten van Het in implementation, the state and nation life has to be able to be responsible to the Only God.
Act 156a the Criminal Code, applied based on the law PNPS No.
1 in 1965 on the Preventing of Misuse and/or religion staining, State Paper No.
3 in 1965, dated 27 January 1965.
In consideration, it stated that consideration of issuing PNPS referred to protect state and society, National Revolution future and Universe National development to achieve justice and welfare society.47 After the freedom together with constitutional changes for three times, from the Fundamental Constitution of 1945, RIS constitution, Temporary Fundamental 1950, and finally back to the Fundamental Constitution of 1945 through President Decree in July, 5 1959, it showed instability of state in that time.
The decree supported the applying the Fundamental Constitution of 1945 and Jakarta Charter in June, 22 of 1945 became soul and a unity to the constitution.
The President Decision became one forms of regulation created based on the Letter of Indonesian President Arrtkel 156 N.I.
Sw. Omschreven Haatzaai Delict.
Dikutip oleh Oemar Seno Adji dalam Hukum (Acara) Pidana dalam Prospeksi, p. 74 47 Considerant Act PNPS No.
1 Year 1965 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 172 number 2262/HK/59 on the Form of State Regulation, dated 20 August 1959, sent by President Soekarno to the Head of Indonesian Legislative Assembly.
The letter stated that three state regulation clearly written in the Fundamental Constitution of 1945, namely the Law, the Governmental regulation as the Law Substitution, and the Governmental regulation, and also decided some state regulations, such as:48 “Besides, the Government need to conduct several other State Regulation, such as: President Decision, to conduct President Decree/the Highest Commandant of War Force dated 5 July 1959 on “Return to the Fundamental Constitution of 1945” Since the president letter had been sent and accepted, 129 President Decision and Regulation were created in the time from 1959 to 1966.
These President Decision and Regulation in the range of that period substantially considered being inappropriate.
Then, the Committee of Temporary Representative required conducting 48 Opinion of Maria Farida Indrati in decision MK No.
140/PUU-VII/2009, p. 313 review based on the Committee Decision number XIX/MPRS/1966 on the Review of State Legislative products outside MPRS product that inappropriate to the Fundamental Constitution of 1945 and the Decision of MPRS number XIX/MPRS/1966.
Based on both decision of MPRS, it created the Law number 5 in 1969 on the Statement of Various President Decision and Regulation as Law (Indonesian Republic Paper in 1969 Number 36, Additional Indonesian Republic Paper 2900).49 The General Explanation of the Law number 5 1969 on the Statement of Various President Decision and Regulation as Law, formulated as follow: “The President Decisions and regulations as stated in Paper IIA and IIB were stated as the Law, with regulation that must be conducted revision/completion, meaning that material of the decisions and Regulation were collected or used as material for formulating the new Law.” 49 Ibid, p. 313 Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 173 Act 2 of the Law number 5 in 1969 on the Statement of Various President Decision and Regulation as Law stated: “Counted since it legitimated of the Law, it stated that the President Decision and Regulation as explained in the Draft IIA and IIB of this law became the Law with regulation, that the material of the President Decision and Regulation were collected or used as material of Formulation the new Law”.
Explanation of Act 2 a quo, stated: “the President Decision and Regulation as explained in the Draft IIA stated as the Law using regulation that the material of the President Decision and Regulation were collected and included in new Law as completion, change or addition from material arranged in the previous Law”.
On the applying of the law number 5 in 1969 on the Statement of 50 Explanation Act PNPS No.
1 Year 1965, point I par.
2.
Various president Decision and Regulation as the Law, it decided PNPS Number 1 of 1965 on the Preventing Misuse and/or Religion staining as a Law.
As a regulation created by authorized officer, in this case the president, the president decision was decided as the law number 1/PNPS/1965 on the Preventing Misuse and/or Religion staining as legitimate rule and having general bounding validity.
It related to the Act I of the Changing Rule of the Fundamental Constitution 1945 (change) stated; “Any existed regulation still applies as long as there are no new ones according to this Fundamental Constitution”.
Recently in the society condition, many belief ideologies or organization appear against the religious.50 The ideologies give serious effect to state life, result in separation among the religious people and also treat unity and integrity of the nation in general.
In specific, this new ideology also treats the prior religions.
Today, the condition reappeared, like or not, that the democracy and safety also give effect to Brawijaya Law Journal V.3 n.2 Contemporary Indigeneous and Constitutional Issues 174 the continuity of religious life.
However, the discipline to do devotion increases the discipline and orderings of country and nation.
IV.
CONCLUSION 1.
The Philosophical Fundamental of Religion Protection in Indonesia is form of the first principle the Divinity of the Only God.
Act 156a of the Criminal Code is realization of penal policy from the first principle.
With background of long history begun before the colonialism till the Indonesian Independence.
Pancasila as philosophical fundamental of Indonesia places the Divinity of the Only God in the first principle.
Thus, the existence of religion becomes spirit of nation to fill the freedom and keep strong the justice.
Therefore, protection to the religion from any kinds of misuse and/or staining must be minimized.
The effort must synergize the relation between country and the people through society leader and religion ones.
2.
The forms of legal protection toward religion and its implementation in Indonesia have been proved by history of Indonesia.
From forming the religion institution or Religion Department before independence to the Religion Court Institution.
The protection needs support of penal effort created by Act 156a of the Criminal Code and consider being not maximum in protecting religion from staining.
It proves by many cases happening in Indonesia related to religion staining and these cases give suffer to all national elements.
Therefore, there must be any change in renewal the National Criminal law in viewing the religion staining and tolerant of religious people.
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Ahmad Fadlil Sumadi, Hak Konstitusional Beragama dan Mahkamah Konstitusi, Harmoni Jurnal Multikultural dan Multireligius, Vol.
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Barda Nawawi Arief, 2014, Bunga Rampai Kebijakan Hukum Pidana: Perkembangan Penyusunan konsep KUHP Baru, Jakarta: Kencana Prenadamedia.
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Jazim Hamidi, Husnu Abadi, 2001, Intervensi Negara terhadap Agama, UII Press, Yogyakarta.
Juhaya S. Praja dan Ahmad Syihabudin, 1982, Delik Agama dalam Hukum Pidana Indonesia, Angkasa, Bandung.
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https://pujohari.wordpress.com/2009/09 /15/sejarah-pengelolaan-zis-diindonesia/ KUHP TAP MPR Nomor VII/MPR/2001 tentangVisi Indonesia MasaDepan Yurispudensi Mahkamah Agung RI, I-II, 1977 UU PNPS No.
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Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.04 77 UNRAVELING THE RIGHT TO LIFE IN CASES OF DEATHS RESULTING FROM THE ACTIONS OF STATE AGENTS UNDER THE SYSTEM OF ECHR Prischa Listiningrum1 1 Student of Master of Laws (LLM) in the University of Edinburgh, the United Kingdom.
Email : p.listiningrum@gmail.com Submitted : 17-02-2017 | Accepted: 02-03-2017 ABSTRACT Article 2 of the ECHR regulates the right to life as a fundamental right that the deprivation of it shall be done in a certain threshold of necessity.
In particular when the taken of life is done by the agents of states.
This article examines the interpretation of article 2 by the European Court of Human Rights, especially when it is read in conjunction with state’s positive obligations under article 1.
The discussion will proceed in three sections: first, the review of the evolvement of the procedural requirements of article 2 in cases of deaths arising from the acts of state agents.
Second, is the examination of whether the procedural requirements of article 2 can be used as a mean in securing the adequate protection of the right to life from arbitrary killing by the use of lethal force?
Third, is an analysis of an effective legal system as a procedural requirement of article 2 in the case of homicide caused by the negligence of the authorities?
Finally, this essay will conclude by examining the Court’s position in its endeavors to achieve an appropriate balance between not over-burdening its Member States and securing the adequate protection of the right to life.
This research submitted that when article 2 it is read together with positive obligation of states under article 1, duty to investigate emerges as a consequence.
Development shows that the Court has a distinct approach in setting a minimum standard for the states to adhere to.
Keyword: right to life, human rights, European, constitution I.
INTRODUCTION The right to life is one of the most fundamental provisions of the European Convention on Human Rights (hereinafter 1 McCann and Others v. the United Kingdom, no.
18984/91, § 53, 27 September 1995; Cakici v. Turkey, no.
23657/94, § 86, 8 July 1999; McKerr v. the United Kingdom, no.
28883/95, § 108, 4 May 2001; Hugh Jordan v. the United Kingdom, no.
24746/94, § 102, 4 May 2001; Kelly and Others v. the United Kingdom, no.
30054/96, § 91, 4 May 2001; Shanaghan v. the United Kingdom, no.
37715/97, § 85, 4 May 2001; Isayeva v. Russia, no.
57950/00, § 172, 24 February 2005; Isayeva, and “ECHR”).1 No deprivation of life can be conducted intentionally, except in certain conditions as stated in article 2 paragraph 2, which gives a privilege for states to take one’s life if it is “absolutely necessary”, Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, § 168, 24 February 2005; Leonidis v. Greece, no.
43326/05, § 53, 8 January 2009.
See also DJ Harris and others, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 203; and FD Sanctis, ‘What Duties do States have with Regard To the Rules of Engagement and the Training of Security Forces under Article 2 of the European Convention on Human Rights?’ (2006) 10 1 The International Journal of Human Rights 31.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 78 such as in defense of others, effecting lawful detention, and in overcoming riot or insurrection.2 Moreover, article 15 paragraph 2 also justifies the deprivation of life by states in the time of war.3 It means that the right to life is not absolute in its nature.4 However, in order to secure the enjoyment of the right to life, there should be a procedure to examine the legitimating of the taking of life by use of lethal force.
The European Court of Human Rights (hereinafter “the Court”), in its verdicts, indicates an importance of duty to investigate, as a procedural obligation of the right to life, when it is taken by the use of force.5 This principle was generated after the Court interpreted the protection of the right to life under article 2 in conjunction with the state’s obligation in securing the Convention’s rights within its jurisdiction under article 1.
The term “jurisdiction” enables the Court to expand 2 European Convention on Human Rights, Article 2.
3 ibid Article 15 paragraph 2.
4 FN Aolain, ‘The Evolving Jurisprudence of the European Convention Concerning the Right to Life’ (2001) 19/1 Netherlands Quarterly of Human Rights 21, 22-3.
5 See McCann and Others v. the United Kingdom (n 1) § 161; Kaya v. Turkey, no.
22729/93, § 86, 19 February 1998; Ergi v. Turkey, no.
23818/94, § 82, 28 July 1998; Çakici v. Turkey (n 1); Tanrikulu v. Turkey, no.
23763/94, § 101, 8 July 1999; McKerr v. the United Kingdom (n 1) § 111; Hugh Jordan v. the United Kingdom (n 1) § 105; Kelly and Others v. the United Kingdom (n 1) § 94; Shanaghan v. the United Kingdom (n 1) § 88; Anguelova v. Bulgaria, no.
38361/97, § 136, 13 June 2001; Ulku Ekinci v. Turkey, no.
27602/95, § 144, 16 July 2002; Hackett v. the United Kingdom, no.
34698/04, admissibility decision of 10 May 2005; Nachova and Others v. the application of this procedural obligation to extraterritorial actions of state agents.6 Essentially, an obligation to investigate deaths resulting from the actions of state agents is vital in maintaining public trust of a democratic society, because ordinarily the state is the only entity that monopolises the use of lethal force.7 In this context, an effective official investigation can be used as a means of ensuring the legitimate aims of the authorities in taking a life.
Subsequently, there will be a degree of certainty that the authorities will not abuse their power.
Moreover, leaving the families of the deceased uninformed regarding the circumstances of the deaths may also torture them mentally.
Therefore, recalling the importance of transparency and adequate information for the families of the Bulgaria, nos.
43577/98 and 43579/98, § 110, 6 July 2005; Ramsahai v. the Netherlands, no.
52391/99, § 321, 15 May 2007; Al-Skeni v. the United Kingdom, no.
55721/07, § 163, 7 July 2011.
6 ibid § 149.
See also C Ryngaert, ‘Claritying the Extraterritorial Application of the European Convention on Human Rights’ (2012) 28/74 Merkourios 57, 59; A Cowan, ‘A New Watershed?
Re-evaluating Bankovic in Light of Al-Skeni’ (2012) (1)1 Cambridge Journal of International and Comparative Law 213, 219.
7 See McKerr v. the United Kingdom (n 1) § 114; Hugh Jordan v. the United Kingdom (n 1) § 114; Kelly and Others v. the United Kingdom (n 1) § 117; Shanaghan v. the United Kingdom (n 1) § 91; May 2001; Anguelova v. Bulgaria (n 5); Ramsahai v. the Netherlands (n 5) §§ 321, 324; Al-Skeni v. the United Kingdom (n 5) § 167.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 79 deceased, the Court extends the procedural obligation of the right to life to any case of deaths caused by state agents, even on nonlethal force incidences.
In some recent jurisprudence, the Court requires an effective official investigation for the case of sudden death resulting from medical or surgical intervention8 and in the case of unexpected homicide caused by authorities’ negligence, such as abandoning citizens living in a lifethreatening environmental condition.9 Despite its robust judgments, protecting the right to life is not an easy task for the Court.
On one hand the Court has to set a minimum standard on the protection of the right to life.
On the other hand the Court could not impose upon states an impossible or disproportionate burden.10 It should be borne in mind that the 47 member states11 of the Convention will have different capacities and capabilities in managing their societies.
Therefore, this essay aims to analyse whether the Court has achieved an appropriate balance between not over8 See Erikson v. Italy, no.
37900/97, admissibility decision of 26 October 1999.
See also D Korff, ‘The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights’ (2006) 8 Human rights handbooks 75; J Chevalier-Watts, ‘Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?’ (2010) 21 3 The European Journal of International Law 701, 707; and T McGleenan, Investigating Deaths in Hospital in burdening its Member States and securing the adequate protection of the right to life in cases of deaths resulting from the actions of state agents.
The analysis will be based on the review of the judgments of the Court, relating to the interpretation of the right to life, under article 2 of the ECHR when it is read together with article 1.
The discussion will proceed in three sections: first, the review of the evolvement of the procedural requirements of article 2 in cases of deaths arising from the actions of state agents.
Second, is the examination of whether the Court has reached a balance between not over-burdening its Member States and securing the adequate protection of the right to life from arbitrary killing by the use of lethal force.
Third, is an analysis of an effective legal system as a procedural requirement of article 2 in the case of homicide caused by the negligence of the authorities.
Finally, this essay will conclude by examining the Court’s position in its endeavours to achieve an appropriate balance between not overNorthern Ireland: Does the System Comply With the European Convention on Human Rights?
(Northern Ireland Human Rights Commission 2004) 13.
9 Oneryildiz v. Turkey, no.
48939/99, § 93, 30 November 2004.
See also DJ Harris and others (n 1) 215.
10 See Osman v. the United Kingdom, no.
87/1997/871/1083, § 116, 28 October 1998.
11 ECHR, ‘Country Profile’ <http://www.echr.coe.int/Pages/home.aspx?p=pres s/factsheets&c=> Accessed 7 July 2016.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 80 burdening its Member States and securing the adequate protection of the right to life.
II.
LEGAL MATERIALS AND METHOD The legal materials of this paper are primary and secondary legal materials.
It uses the statute and conceptual approaches as well as case study approaches.
Journals articles are employed by this paper to sharpen the analysis.
This paper heavily lays on the European Convention on Human Rights and several relevant European cases to analyse legal problems proposed.
The research is divided into three parts, which include, firstly, the review of the evolvement of the procedural requirements of article 2 in cases of deaths arising from the acts of state agents.
Secondly, it examines whether the procedural requirements of article 2 can be used as a mean in securing the adequate protection of the right to life from arbitrary killing by the use of lethal force and thirdly, it analysis the effectiveness of legal system as a procedural requirement of 12 Anguelova v. Bulgaria (n 5) § 137; Nachova and Others v. Bulgaria (n 5); Leonidis v. Greece (n 1) § 68; Al-Skeni v. the United Kingdom (n 5).
13 See McCann and Others v. the United Kingdom (n 1) § 161; Kaya v. Turkey (n 5); Ergi v. Turkey (n 5); Çakici v. Turkey (n 1), 8 July 1999; Tanrikulu v. Turkey (n 5); McKerr v. the United Kingdom (n 1) § 111; Hugh Jordan v. the United Kingdom (n 1) § 105; Kelly and Others v. the United Kingdom (n 1) article 2 in the case of homicide caused by the negligence of the authorities.
III.
RESULT AND DISCUSSION A.
The Alteration of Duty to Investigate in Cases of Deaths Arising From the Actions of State Agents The Court imposes a duty to conduct an official investigation in the cases of deaths resulting from the actions of state agents as a procedural requirement of article 2.
The fundamental purpose of investigation is to figure out whether domestic laws adequately protect the right to life as well as to ensure the accountability of the person in charge.12 When the life is taken by the use of force, the requirements of article 2 paragraph 2 of the ECHR must be satisfied.
That is why an effective investigation is needed in order to review the lawfulness of the use of force.
This procedural obligation applies not only to the case of homicides by the use of lethal force,13 but also to other non-lethal force cases where state agents potentially bear responsibility for loss of life14 as well as § 94; Shanaghan v. the United Kingdom (n 1) § 88; Anguelova v. Bulgaria (n 5); Ulku Ekinci v. Turkey (n 5); Hackett v. the United Kingdom (n 5); Nachova and Others v. Bulgaria (n 5) § 110; Ramsahai v. the Netherlands (n 5); Al-Skeni v. the United Kingdom (n 5).
14 E.g.
Erikson v. Italy (n 8); Oneryildiz v. Turkey (n 9).
See also D Korff (n 8); DJ Harris and others, (n 1) 215.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 81 killings by non-state actors.15 However, in this writing the author will only focus on examining the judgments of the Court concerning cases of deaths arising from the actions of state agents.
The Court first develops this procedural obligation in the case of McCann and Others v. the United Kingdom after interpreting obligation to protect the right to life under article 2 in conjunction with state’s positive obligation to secure rights and freedoms within its jurisdiction under article 1.16 In its early jurisprudence, the Court only asserts the importance of effective investigation to assess the lawfulness of the use of force by state authorities without clarifying further the meaning of effective investigation itself.
The Court asserts “it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted”.
According to J ChevalierWatts, in this case the Court seems to be using a pragmatic approach.
This mode was influenced by the abstract nature of the obligation to investigate as an implied provision; therefore the Court tends to apply a wider margin of appreciation to the states.
Nevertheless, the McCann Case is a 15 See Ulku Ekinci v. Turkey (n 5).
16 McCann and Others v. the United Kingdom (n 1) § 161.
17 ibid § 162. cornerstone in assuring the accountability of state agents and prevents the arbitrary killings by the use of force.
Moreover, in the McCann Case the Court implicitly begins to recognise the importance of public scrutiny as an important part of inquest procedure by mentioning some forms of public inquest proceedings, such as: the proceedings had been public, the involvement of legal representation of victims, and the hearing of large number of witnesses (79 people).17 Therefore, in this case the Court concluded that the official investigation was sufficient.
This finding was strongly critised by the applicants.
They claimed that they were not equally represented in the proceedings and not all eyewitnesses were traced.18 In Kaya v. Turkey, the failure to conduct an independent investigation of the circumstances surrounding the killing of the victim has been concluded as a violation of procedural obligation of article 2.19 The case was about the killing of the applicant’s brother, Mr Abdülmenaf Kaya, in a gun battle between members of the security forces and a group of terrorists.
Mr Abdülmenaf Kaya was alleged as one of the assailants who died in the hostilities.
In 18 ibid 163.
19 Kaya v. Turkey (n 5) § 92.
See also Ergi v. Turkey (n 5) § 85.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 82 this case, the prosecutor did not conduct an effective investigation.
Intentionally, he ignored any obligation or need to carry out an independent reconstruction of the killing events.
He just accepted any information given by the military and did not conduct any fingerprinting to verify whether the weapon and ammunition truly belonged to the deceased.
Furthermore, the prosecutor failed to investigate the validity of the allegations against the victim: was he a terrorist or just a farmer living near the battle?20 In the above, the Court seems to assess the elements of effective official investigation on the basis of case by case.21 Although in previous judgments public scrutiny and independence have become important parts of any effective official investigation that fulfills the procedural limb of article 2, the detail requirements of an effective official investigation itself are still obscure.
On 4 May 2001 the Court decided four cases from Northern Ireland, which later became an essential case law concerning the procedural requirement of article 2 in cases of deaths resulting from the actions of state agents.
The judgments 20 ibid §§ 88-90.
21 See Ulku Ekinci v. Turkey (n 5).
22 McKerr v. the United Kingdom (n 1) §§ 112-5; Hugh Jordan v. the United Kingdom (n 1) §§ 1069, 4 May 2001; Kelly and Others v. the United of McKerr v. the United Kingdom, Hugh Jordan v. the United Kingdom, Kelly and Others v. the United Kingdom, and Shanaghan v. the United Kingdom have clarified four important tests in determining the sufficiency of an adequate and effective investigation into alleged unlawful killing by state agents.
These tests are: the independence of investigators, the effectiveness of the investigation, the promptness and reasonable expedition, and the element of public scrutiny.22 These four elements are cumulative; a failure to satisfy one of them may lead to a violation.
The use of these four tests has been consistently reiterated by the Court in its recent judgments, such as in the case of Ramsahai v. the Netherlands and the case of Al-Skeni v. the United Kingdom.23 Independence means no vertical or institutional connection between the investigators or prosecutors and the alleged perpetrators.
Once an incident of death involving the use of lethal force is noticed, an effective and adequate official investigation must be conducted by the authorities without waiting for any claim from the deceased relatives.
The effectiveness of an investigation can be seen from whether it can assess the legality Kingdom (n 1) §§ 95-8; Shanaghan v. the United Kingdom (n 1) §§ 89-92.
23 See Ramsahai v. the Netherlands (n 5); and AlSkeni v. the United Kingdom (n 5).
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 83 of the use of force, identify and punish the offenders, and that it takes reasonable measures in securing evidence relating to the incident.24 Any deficiency, such as the lack of independence, the lack of transparency, the failure to inspect the responsible officials, the absence of legal assistance for representing the victims’ family, the failure to disclose the witness statements, and the delay in inquest proceedings that has impeded the public prosecutors from obtaining sufficient evidence in order to warrant prosecution, can be concluded as a violation of the procedural limb of the right to life.25 Furthermore, the Court extends the procedural requirement of article 2 to the incidence of deaths caused by state agents in non-lethal force cases.26 This extension is applied to medical malpractice27 and officials’ negligence,28 because in such cases state institutions normally conceal the truth in a collusive manner.
Hence, the investigation is addressed to ensure demonstration of evidence regarding the criminal liability of the offenders and the transparency of the actions of state officials.
Uniquely, in these typical cases 24 McKerr v. the United Kingdom (n 1) §§ 111-3, 157; Hugh Jordan v. the United Kingdom (n 1) §§ 109-6, 142; Kelly and Others v. the United Kingdom (n 1) §§ 95-8, 136; Shanaghan v. the United Kingdom (n 1) §§ 89-92, 122.
25 ibid.
See also Leonidis v. Greece (n 1) § 68.
26 See Calvelli and Ciglio v. Italy, no.
32967/96, § 49, 17 January 2002; and Oneryildiz v. Turkey (n 9).
the Court declared that the procedural obligation does not just stop at the investigation process, but how to create an effective judicial system for victims.29 If the homicide was caused by an unintentional error of judgment or carelessness by the agents of the state, it might only be fulfilled by civil, administrative or other available disciplinary sanctions.
However, deaths caused by a serious negligence of the authorities can be considered as the breach of the right to life in its procedural aspect, if the state did not charge the offenders with criminal offences.30 From the above explanations it can be said that the Court, as an enforcement organ of the ECHR, has tried to be more protective of the right to life.
Its innovation in its jurisprudence, concerning a state’s duty to investigate cases of deaths resulting from the actions of state agents, has become an important aspect in the supremacy of the right to life.
Although in its early judgments the Court seems reluctant to impose a burden on the states, by not mentioning the detail requirements of an effective investigation, the Court has 27 Erikson v. Italy (n 8).
See also D Korff (n 8); J Chevalier-Watts (n 8); and T McGleenan (n 8).
28 Oneryildiz v. Turkey (n 9).
See also DJ Harris and others (n 1) 215.
29 ibid § 95.
30 ibid § 93.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 84 come up with a progressive step in its recent judgments by clarifying the scope and content of an effective and adequate official investigation.
However, the issue of whether imposing duty to investigate will become an excessive burden to the states, is still questioned.
Therefore the next section will discuss this issue further.
A.
Examining the Court’s Position in the Use of Force Cases The Court’s progressivity in protecting the right to life is obvious.
A failure to investigate homicide caused by the actions of state agents potentially results in a violation of article 2.
There is no time limit for the state to be bound by this obligation.
When new evidence is found, the state has a responsibility to respond promptly and conducts a further investigation if needed.31 The Court puts quite a high standard on the protection of the right to life in the context of homicide by the use of lethal force.
Duty to investigate has become an important part of the right to life.
The substantive requirement of article 2, not to use lethal force except in certain necessary conditions, is different from the procedural 31 Brecknell v. the United Kingdom, no.
32457/04, §§ 67-8, 27 November 2007.
32 D Korff (n 8) 35.
33 See McCann and Others v. the United Kingdom (n 1).
requirement to hold an effective official investigation into a death or deaths resulting from the actions of state agents.32 There can be a violation of a substantive requirement without a breach of procedural limb.33 There can be also a breach of procedural requirement only34 or a breach of both types of requirements.35 Recalling the significant impact of the Court’s judgments, in this chapter the author will assess whether the requirement has become an unreasonable and excessive burden for the member states or not.
Also, whether the Court’s findings have adequately protected the right to life.
The analyses will be based on four requirements of an effective and adequate official investigation that has been developed by the Court in its judgments which, as cited above, are the independence of the investigators, the effectiveness of the investigation, the promptness and reasonable expedition, and public scrutiny.
The independence of the investigators The domestic laws of the states should be able to support the independence and impartiality of the persons responsible 34 Kaya v. Turkey (n 5).
See also Ergi v. Turkey (n 5).
35 See Isayeva, and Others v. Russia (n 1).
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 85 for conducting the investigation and prosecution.36 Impartiality becomes a compulsory part of an effective official investigation.
The lack of independence may lead to a violation such as in Brecknell v. the United Kingdom.37 Moreover, in many cases, the lack of independence frequently results in the devastation of the fact-finding process.
In a worst case scenario, such as Anguelova v. Bulgaria, where the deceased died in police custody, the detention register was forged and the autopsy record was modified in order to blur the cause of the skull fracture.38 Hence, the Court found a violation of article 2 due to the lack of impartiality of the investigators that lead to the omission of key evidence concerning the incidence.39 The key element of independence is the lack of hierarchical or institutional connection between the alleged perpetrators and the investigators.40 This requirement may be hard to be satisfied by the state.
For example, if the death was conducted by a police officer, because sometimes the police are the only 36 Nachova and Others v. Bulgaria (n 1) § 112.
37 Brecknell v. the United Kingdom (n 31) p 27.
38 Anguelova v. Bulgaria (n 5) § 142.
39 ibid §§ 145-6.
40 McKerr v. the United Kingdom (n 1) § 111; Hugh Jordan v. the United Kingdom (n 1) § 109; Kelly and Others v. the United Kingdom (n 1) § 98; Shanaghan v. the United Kingdom (n 1) § 92.
41 Hackett v. the United Kingdom (n 5).
responsible institution to carry out a criminal investigation in a particular state.
However, this problem can be over-ridden by inviting a foreign investigator from another region such as in the case of Hackett v. the United Kingdom.41 The effectiveness of the investigation As described in a previous section, the scope and content of an effective investigation consists of three aspects: i) whether it can examine the legality of the use of force; ii) whether it can identify and punish the offenders, and iii) whether the investigation has been done reasonably in order to secure the evidence in the field.
From these elements it seems the Court places a high standard on the states if they are going to satisfy the requirements.
However, the Court’s reiteration that duty to investigate is an obligation of means, not of result, tends to lessen the degree of responsibility.42 There is not an absolute right of the applicants to gain a prosecution or conviction.43 As long as the state has conducted an investigation diligently, it 42 See McKerr v. the United Kingdom (n 1) §§ 1123; Hugh Jordan v. the United Kingdom (n 1) §§ 1067, 4 May 2001; Kelly and Others v. the United Kingdom (n 1) §§ 95-6; Shanaghan v. the United Kingdom (n 1) §§ 89-90; Anguelova v. Bulgaria (n 5) § 139; Al-Skeni v. the United Kingdom (n 5) § 166.
43 Brecknell v. the United Kingdom (n 31) § 66.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 86 may fulfill the requirement of having conducted an effective investigation.
This notion is confirmed by the judgment of Szula v. the United Kingdom.44 In the case of Szula the Court did not ask the state to hold a new investigation, although the police failed to gain sufficient evidence for prosecution.
As with Szula, in the case of Giuliani and Gaggio v. Italy the applicants also failed to secure their claims because the state showed that it had conducted an effective investigation.
The effectiveness was seen from the state’s ability to assess the lawfulness of the use of force, as well as the compatibility of the planning and organisation of the killing policy with the obligation to protect life.
Although the forensic doctors was failed to trace the fragment of cartridge embedded in the head of victim, the limitation of “obligation of means” does not require the investigation to be done to that extent.45 This is understandable, as long as the forensic examination was conducted transparently.
The promptness and reasonableness of expedition 44 See Szula v. the United Kingdom, no.
18727/06, 4 January 2007.
45 Giuliani and Gaggio v. Italy [GC], no.
23458/02, 24 March 2011.
See also S Skinner, ‘The Right to Life, Democracy and State Responsibility in ‘Urban Guerilla’ Conflict: The European Court of Human Rights Grand Chamber Judgment in Giuliani It is understandable that there may be some obstacles that prevent the progress of an investigation.
However, a prompt response by the authorities is essential in maintaining the effectiveness of their law enforcement system and ignoring the nasty allegations of fraud or collusion by the communities.46 In McKerr case, the delay in the inquest amounted to a violation of the procedural aspect of article 2.
The expedition was not conducted in a reasonable manner, as can be seen from two aspects.
First, the frequent and lengthy adjournments to the proceedings were taken without a reasonable cause.
Second, the Secretary of State often used public interest immunity to prevent some enquiries or disclosure of important documents.47 In the context of investigation, how long is a delay that may be caused by any obstacles in the investigation process, before it can no longer be tolerated.
This question is of course hard to answer as, among other considerations, it is uniquely contextual.
Public scrutiny Gaggio v Italy’ (2011) 11:3 Human Rights Law Review 567, 571-3.
46 See Brecknell v. the United Kingdom (n 31) §§ 65; and McKerr v. the United Kingdom (n 1) §§ 142-55.
47 ibid §§ 142-55.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 87 There is no doubt that the involvement of the relatives of the deceased in the investigation process designed to figure out the causes of the deaths, is vital.48 Leaving the next-of-kin without any information will torture them mentally.
Therefore, since the beginning of the jurisprudence in the McCann case, the Court has asserted the importance of the participation of the families of the deceased.49 Nevertheless, the problem is how far the deceased’s families can be involved in the inquest or investigation process?
In the case of McCann there was no violation of procedural limb of article 2 because the next-of-kin of the deceased were sufficiently represented in the proceedings by some experienced lawyers that were able to examine and question the key witnesses, including those who were involved in the planning and conduct of anti-terrorist operations, such as police officers and military personnel.50 While, in the case of McKerr, there was a violation of the procedural aspect of article 2, since the applicants’ representations were hindered from actively participating in questioning the witnesses, because they did not have access to witness statements before the appearance of the witness.
48 ibid § 147.
49 McCann and Others v. the United Kingdom (n 1).
Actually, in the case of McCann the applicants also did not have any access to the witness statements.
However, as there was a change in the procedure, under new regulations (Home Office Circular No.
20/99) the Coroners were required to provide copies of the written statements or inquest documents to the interested parties, such as the deceased’s families, when the deaths were caused in custody or resulted from the actions of police personnel.51 This move was addressed to assure the transparency of the investigation process.
From this comparison, it can be concluded that the Court is following the national laws in interpreting the requirement of public scrutiny.
In this case the focus is on the relatives of the deceased gaining access to relevant documents.
This approach is problematic because, on the one hand the Court is trying to protect the right to life, while not imposing a strict burden on the member states; but on the other hand, such action may lead to a wider application of margin of appreciation.
It is feared that potentially there will be an imbalance in the standards of protection, particularly if the domestic laws of the member states do not favour the right to life.
50 McCann and Others v. the United Kingdom (n 1).
51 McKerr v. the United Kingdom (n 1) § 78.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 88 B.
Duty to Investigate Non-Lethal Force Cases: Challenges and Opportunities Initially the Court imposed an obligation to investigate suspicious deaths arising from the actions of state agents through the use of lethal force.
Then, the Court extended this obligation to cases of unexpected deaths arising from gross negligence by public authorities, such as in medical malpractice and life-threatening environmental risk.52 Different with the deaths involving the illegitimate use of force, in non-lethal force cases the Court does not impose a duty to investigate that leads, or would lead, to a capability to prosecute the responsible agents via criminal proceedings.53 Criminal sanctions are compulsory only when the deaths were caused through gross negligence by the authorities, where / when they failed to prevent the foreseeable and imminent risk of loss of life.
This principle then makes it complicated for the families of the victims of medical malpractice to secure their claim under the procedural limb of article 2, as discussed below.
52 See Erikson v. Italy (n 8); Sieminska v. Poland, no.
37602/97, admissibility judgment of 29 March 2001; Oneryildiz v. Turkey (n 9); and Calvelli and Ciglio v. Italy (n 26).
Medical malpractice Although the Court has extended the procedural requirement of article 2 to deaths caused by state agents in non-lethal force cases, practically it is not easy to secure this claim before the Court.
In the case of hospital fatalities, the unintended deaths do not always result in criminal proceedings against the perpetrators, because it is often hard to find a convincing evidence to prosecute the alleged perpetrators.
Therefore, there should be an effective judicial system that satisfies the victims’ next-of-kin, such as a compensation for damages, the publication of the judgment, and the imposition of disciplinary sanctions for those responsible.54 In some hospital fatalities cases, such as Erikson v. Italy, and Powell v. the United Kingdom, the applicants failed to secure their claims under procedural requirement of article 2, due to the issue of admissibility.
In the case of Erikson v. Italy the Court declared that the application is inadmissible due to the lack of ability to exhaust existing domestic remedies, especially concerning the applicants’ failure to bring a civil action for negligence against the hospital.55 Conversely, in the 53 ibid.
54 Calvelli and Ciglio v. Italy (n 26) § 51.
55 Erikson v. Italy (n 8) Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 89 case of Powell v. the United Kingdom the application was also declared inadmissible due to the applicants’ acceptance of compensation in a civil claim.
Hence, the applicants are no longer considered as victims under article 34 of the Convention.56 From those two judgments, the Court’s position seems obscure, especially regarding the legal standing of the families of deceased medical malpractice victims bringing a claim under the procedural limb of article 2.
By citing its verdict in the case of Powell v. the United Kingdom, the Court reiterates that the victims in the case of Calvelli and Ciglio v. Italy are no longer victims because they have received compensation as a result of civil proceeding.
As a response to the decision, the judges Rozakis, Bonello and Straznicka together wrote a dissenting opinion arguing that in these typical cases so far the Court only applies a minimum protection to the right to life.57 They maintain that criminal proceedings are the most suitable for the case of unintentional death caused by medical negligence, rather than civil litigation.58 Commonly civil proceedings are more suitable for dealing with private 56 Powell v. the United Kingdom, no.
45305/99, admissibility judgment of 4 May 2000.
See also Calvelli and Ciglio v. Italy (n 26) § 55.
57 Partly Dissenting Opinion of Judge Rozakis Joined by Judges Bonello and Strážnická in the case of Calvelli and Ciglio v. Italy.
58 ibid.
or material matters.
The fact that the families of the deceased have accepted compensation for damages does not, in essence, elapse their victim status.
At least, this is what the Court has developed in its case law so far that “the obligations of the State under Article 2 cannot be satisfied merely by awarding damages”.59 The author tends to agree with the opinions of those three dissenting judges.
In future the Court should move forward to reveal a more moral approach in deciding the case of an unexpected death or deaths arising from surgical falsifications.
Although it means that the Court will impose a strict burden on its member states, accepting the taking of life through the negligence of medical practitioners is unreasonable, particularly if the hospital is owned by the state.
The state has to set regulations within the public health institutions to provide effective deterrence and preventing threats to the right to life.
Also practically, the criminal laws of some of the Convention’s member states, such as Turkey and Italy, have recognised the prosecution of unintentional homicide caused by negligence.60 59 McKerr v. the United Kingdom (n 1) § 121.
See also Kaya v. Turkey (n 5) § 105; Yaşa v. Turkey, Reports 1998-VI, § 74, 2 September 1998.
60 See Cakici v. Turkey (n 1); Ergi v. Turkey (n 5); Ulku Ekinci v. Turkey (n 5) § 111; Calvelli and Ciglio v. Italy (n 26).
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 90 Life-threatening environmental risks Oneryildiz v. Turkey was the first case before the Court dealing with the incidence of negligence caused by the authorities regarding a life-endangering condition.
In its verdict the Court asserts two standards of punishment applicable in this kind of case.
First, if the deprivation of life is not caused intentionally, the state has an obligation to provide an effective judicial system to compensate the victims.
It can be done by awarding a certain amount of money in civil proceedings or applying administrative as well as disciplinary remedies.61Second, the state has a positive obligation to prosecute the responsible perpetrators in criminal proceedings, if the authorities fail to take any measures to avert the loss of life, and where they have realised that the risks is imminent and foreseeable.62 Therefore, it can be said in this context the Court tries to set a more stringent standard, by including criminal sanctions in an incident of gross negligence by a state’s authorities 61 Oneryildiz v. Turkey (n 9) § 92.
62 ibid § 94.
63 McCann and Others v. the United Kingdom (n 1) § 161.
IV.
CONCLUSION AND SUGGESTION Article 2 does not literally guarantee the right to have an effective investigation.
Nevertheless, the Court in its verdicts develops a procedural requirement of the right to life to conduct an effective investigation.
Duty to investigate emerges as a consequence, when article 2 it is read together with positive obligation of states under article 1.63 In the beginning the Court only specifies the importance of duty to conduct an effective official investigation in the cases of deaths caused by the use of lethal force.
As many cases appear, then the Court extended this procedural limb of article 2 to the incidence of homicide arising from negligence of authorities, particularly in hospital fatalities and lifeendangering conduct.
In both kinds of cases, the Court has a distinct approach is setting a minimum standard for the states to adhere to.
The Court applies four tests in examining whether the investigation of homicide arising from the use of force is affective and adequate or not.64 First, the investigators and prosecutors should have a certain degree of impartiality.
This status 64 See McKerr v. the United Kingdom (n 1) §§ 112-5; Hugh Jordan v. the United Kingdom (n 1) §§ 106-9; Kelly and Others v. the United Kingdom (n 1) §§ 95-8; Shanaghan v. the United Kingdom (n 1) §§ 89-92.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 91 can, at least in part, be justified by the lack of hierarchical or institutional connection to the perpetrators.
Second, an effective investigation is one that leads to a conclusion of the legality of the use of force and to a capability to identify as well as punish the offenders.
Third, the state should demonstrate a prompt and reasonable expedition in initiating and then carrying out its investigation.
Any delay that may cause the ineffectiveness of the investigation can be concluded as a breach of article 2.
Fourth, the involvement of the families of the deceased in the inquest proceedings leads to a blur in the question of how far the next-of-kin can be included.
From those four tests, the Court seems apply a high standard of investigation to protect the right to life and impose a strict obligation on the state.
If one of the tests is ignored, a violation of article 2 may occur.
In this context, the Court has an opportunity to develop its jurisprudence in favour of the protection of the right to life from arbitrary killings by state agents.
This is justified by the provision of article 2 paragraph 2 that prohibits the taking of life by the use of force, except if absolutely necessary.
There is no time limit for the state to be bound by this obligation.
When new evidence is 65 Brecknell v. the United Kingdom (n 31).
66 Partly Dissenting Opinion of Judge Rozakis Joined by Judges Bonello and Strážnická (n 57).
found, the state has a responsibility to respond promptly and conduct a further investigation if needed.65 However, since the four tests are not an obligation of result, states have a certain degree of discretion as to their investigatory conduct.
As long as they can demonstrate their measures, potentially there will be no violation of article 2.
From that jurisprudence we can learn that the Court has tried to achieve a balance between not over-burdening its member states and protecting the right to life from arbitrary killings by the agents of those states.
Conversely, in the case of unexpected homicide caused by authorities’ negligence in hospital fatalities, the Court seems reluctant to impose a burden on its states’ parties and applies a minimum protection to the right to life.66 Without mentioning the detailed requirements of an effective and adequate investigation, such as in previous cases, the Court in this case maintains that if the victims have received compensation in civil proceedings, they will lose their victim status.67 This jurisprudence is totally different with the case of homicide by the use of force, where the Court stated that the procedural limb of article 2 could not be fulfilled by awarding damages in 67 Powell v. the United Kingdom (n 56).
See also Calvelli and Ciglio v. Italy (n 26) § 55.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 92 civil litigations.68 Therefore, in this case the Court tends to maintain its speed in producing robust judgments securing the right to life.
Letting the state apply a wide range of margin of appreciation, and as long as the state has provided a compensation for its authorities’ negligence, there will be no violation of article 2.
From the author’s perspective the court does this, because literally article 2 only prohibits intentional killings, not unintentional ones.
Interestingly, in the case of the loss of life, due to gross negligence of public authorities, and where the risks are foreseeable, the Court tends to set a stringent standard of protection to the right to life.
When there is gross negligence by the authorities, the Court requires that criminal proceedings should be carried out to prosecute the responsible authorities.69 This jurisprudence is interesting, because a stringent burden on states has been implemented, although in incidents where the fatal use of force is not present.
REFERENCES Journal Articles Aolain FN, ‘The Evolving Jurisprudence of the European Convention 68 McKerr v. the United Kingdom (n 1) § 121.
See also Kaya v. Turkey (n 5) § 105; Yaşa v. Turkey (n 69).
Concerning the Right to Life’ (2001) 19/1, Netherlands Quarterly of Human Rights Chevalier-Watts J, ‘Effective Investigations under Article 2 of the European Convention on Human Rights: Securing the Right to Life or an Onerous Burden on a State?’ (2010) 21 3, The European Journal of International Law Cowan A, ‘A New Watershed?
Reevaluating Bankovic in Light of Al-Skeni’ (2012) (1) 1, Cambridge Journal of International and Comparative Law Korff D, ‘The Right to Life: A Guide to the Implementation of Article 2 of the European Convention on Human Rights’ (2006) 8, Human rights handbooks Ryngaert C, ‘Claritying the Extraterritorial Application of the European Convention on Human Rights’ (2012) 28/74, Merkourios Sanctis FD, ‘What Duties do States have with Regard To the Rules of Engagement and the Training of Security Forces under Article 2 of the European Convention on 69 Oneryildiz v. Turkey (n 9) § 94.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 93 Human Rights?’ (2006) 10 1, The International Journal of Human Rights Skinner S, ‘The Right to Life, Democracy and State Responsibility in ‘Urban Guerilla’ Conflict: The European Court of Human Rights Grand Chamber Judgment in Giuliani Gaggio v Italy’ (2011) 11:3, Human Rights Law Review Books McGleenan T, Investigating Deaths in Hospital in Northern Ireland: Does the System Comply With the European Convention on Human Rights?, (Northern Ireland Human Rights Commission, 2004).
Harris DJ and others, Law of the European Convention on Human Rights, 3rd ed, (OUP, 2014).
Treaties European Convention on Human Rights.
Cases Al-Skeni v. the United Kingdom, no.
55721/07, 7 July 2011.
Anguelova v. Bulgaria, no.
38361/97, 13 June 2001.
Brecknell v. the United Kingdom, no.
32457/04, 27 November 2007.
Cakici v. Turkey, no.
23657/94, 8 July 1999.
Calvelli and Ciglio v. Italy, no.
32967/96, 17 January 2002.
Ergi v. Turkey, no.
23818/94, 28 July 1998.
Erikson v. Italy, no.
37900/97, admissibility decision of 26 October 1999 Giuliani and Gaggio v. Italy [GC], no.
23458/02, 24 March 2011.
Hackett v. the United Kingdom, no.
34698/04, admissibility decision of 10 May 2005.
Hugh Jordan v. the United Kingdom, no.
24746/94, 4 May 2001.
Isayeva v. Russia, no.
57950/00, 24 February 2005.
Isayeva, and Others v. Russia, nos.
57947/00, 57948/00 and 57949/00, 24 February 2005.
Kaya v. Turkey, no.
22729/93, 19 February 1998.
Kelly and Others v. the United Kingdom, no.
30054/96, 4 May 2001.
Leonidis v. Greece, no.
43326/05, 8 January 2009.
McCann and Others v. the United Kingdom, no.
18984/91, 27 September 1995.
McKerr v. the United Kingdom, no.
28883/95, 4 May 2001.
Nachova and Others v. Bulgaria, nos.
43577/98 and 43579/98, 6 July 2005.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 94 Oneryildiz v. Turkey, no.
48939/99, 30 November 2004.
Osman v. the United Kingdom, no.
87/1997/871/1083, 28 October 1998.
Powell v. the United Kingdom, no.
45305/99, admissibility judgment of 4 May 2000.
Ramsahai v. the Netherlands, no.
52391/99, 15 May 2007.
Shanaghan v. the United Kingdom, no.
37715/97, 4 May 2001.
Sieminska v. Poland, no.
37602/97, admissibility judgment of 29 March 2001.
Szula v. the United Kingdom, no.
18727/06, 4 January 2007.
Tanrikulu v. Turkey, no.
23763/94, 8 July 1999.
Ulku Ekinci v. Turkey, no.
27602/95, 16 July 2002.
Yaşa v. Turkey, Reports 1998-VI, 2 September 1998.
70 | DOI: http://doi.org/10.21776/ub.blj.2021.008.01.05 The Implementation of Pre Merger Notification in The Draft Law on The Prohibition of Monopoly Practices and Unhealthy Business Competition in Indonesia Ratna Sumirata, Rianda Dirkareshzab aFaculty of law, Universitas Pembangunan Nasional Veteran Jakarta Email : ratnasumirat@upnvj.ac.id bFaculty of law, Universitas Pembangunan Nasional Veteran Jakarta Email : riandadirkareshza@upnvj.ac.id Submitted : 2021-03-17 | Accepted : 2021-04-26 Abstract: This paper examines the consequences of the Post Merger regime in Law No.
5/1999 concerning the Prohibition of Monopolistic Practices and Business Competition.
This research uses the normative juridical method and comparative approach, comparing the American Antitrust Law which has successfully implemented the pre merger notification with the Indonesian Business Competition Law which implements the post merger notification.
The results of this study indicate that the importance of implementing the Pre Merger Notification in the draft Law on the Prohibition of Monopolistic Practices and Unfair Business Competition is viewed in a comparison with the success of the Antitrust Law America and supported by the dynamics of globalization of the Industrial Revolution 4.0 which became a challenge for the Business Association Supervisory Commission.
Thus, the regime change from Post Merger Notification to Pre Merger Notification is the right step in implementing a merger in Indonesia because Pre Merger Notification provides legal certainty and also more efficient for business actors and KPPU as a preventive effort with the aim that the implementation of Pre Merger Notification will be carried out optimally in achieving the goal of fair business competition.
Keywords: merger; notification; business competition; market.
I.
INTRODUCTION The act of merging, consolidating, and acquisition, whether consciously or not, can affect competition between business actors in the relevant market and impact consumers and society.
Merger, consolidation, or acquisition may result in increased or 1 Mustafa Kamal Rokan, Hukum Persaingan Usaha (Teori Dan Praktiknya Di Indonesia) (Jakarta: Rajagrafindo Persada, 2010), 215–216.
decreased competition, which has the potential to harm consumers and the community.
1 A negative aspect of fair competition in this market can be found if it is unfairly carried out to control the market.2 Merger activities carried out by entrepreneurs as a business strategy can 2 Suyud Margono, Hukum Anti Monopoli (Sinar Grafika, 2009), p.130.
mailto:ratnasumirat@upnvj.ac.id mailto:riandadirkareshza@upnvj.ac.id Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 71 monopolize and create unhealthy business competitions.
With this strategy, the company can make large-scale acquisitions to dominate the market and get a broader segment.
This excessive control of the market will create great potential for running unfair business competition.
In 1999, Indonesia enacted the Indonesian Competition Law, Law No.
5 of 1999, concerning The Prohibition of Monopolistic Practices and Unfair Competition Business, which came into effect in 2000.
The law has a dual purpose of protecting the public interest and increasing the national economy's efficiency.
After implementing this matter, the obstacles began to become apparent in the aspect of the law enforcement because the provisions in some of their substances were difficult to implement and many of the substances were ambiguous.3 Before the enactment of the Law on the Prohibition of Monopolistic Practices and Unfair Business Competition in Indonesia, the Indonesian government did not pay much attention to the developments in the competition law.
Then in 1990, there was a desire to have a comprehensive antimonopoly law in Indonesia.
Many scholars, political parties, non-governmental organizations, and even certain government agencies discussed and proposed the development of antitrust laws.4 The proposal to introduce antimonopoly laws gained momentum when the government signed a letter of intent with the International Monetary Fund (IMF) on July 29, 1998.
Under the IMF program, Indonesia 3 Ningrum Natasya Sirait, ‘The Development and Progress of Competition Law in Indonesia’ (2009) 54(1) Antitrust Bulletin, p. 15, 23.
4 Hikmahanto Juwana, ‘Washington University Global Studies Law Review An Overview of Indonesia ’ s Antimonopoly Law AN OVERVIEW OF INDONESIA ’ S’ (2002) 1(1), p. 186. is required to pass several laws and regulations to ensure fair competition and consumer and government protection.5 Thus, the existence of Law no.
5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition.
Regarding the implementation of the Indonesian Competition Law, KPPU has issued 36 guidelines, such as those related to intellectual property rights, abuse of dominant positions, related directorates, collusive tenders, cartels, and mergers and acquisitions.6 Since the enactment of Law no.
5 of 1999, there was a change in the economic system in Indonesia, which initially had many economic activities based on collusion, corruption, and nepotism, so that many economic activities were monopolized by certain groups, turning into an economic system based on the principles of fair competition.
Since the implementation of a healthy business competition system in 2000, a lot of progress has been made, so that consumers have benefited a lot, which can be seen in the telecommunications and aviation industries.
This is consistent with data from the Directorate General of Civil Aviation, Ministry of Transportation, that in 1999 there were 5 (five) airlines, while in 2008, there were 15 (fifteen) airlines in Indonesia.
In 1999 the number of passengers on airplanes was 6,365,481 passengers, while in 2008 the number of passengers was 5 Mari Pangestu et al, ‘The Evolution of Competition Policy in Indonesia’ (2002) 21(2) Review of Industrial Organization, p. 205, 186.
6 Manaek SM Pasaribu, ‘Challenges of Indonesian Competition Law and Some Suggestions for Improvement’, (2016), ERIA Discussion Paper Series, p. 36.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 72 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… 34,015,98134,015,981.7 In principle, KPPU has the authority to control mergers, consolidations, and acquisitions that affect competitive conditions in the Indonesian domestic market.
KPPU has the authority to review and decide on mergers, consolidations, and acquisitions.
The legal basis for merger control can be found in Articles 28 and 29 of the Indonesian Competition Law.
Article 28 prohibits merger or consolidation of business entities and acquisition of shares in other companies, which may result in monopolistic or unfair business practices.
Article 29 stipulates that KPPU must be informed about a merger that will result in combined assets, sales, or both exceeding a certain threshold.
Where Government Regulation No.
57/2010 stipulates a notification threshold, namely that the combined asset value exceeds Rp.2,500,000,000,000,000 or Rp.20,000,000,000,000 for banks and the combined asset value exceeds Rp.500,000,000,000.
Entrepreneurs are prohibited from merging or consolidating business entities or acquiring shares in companies if these actions can lead to monopolistic practices and/or unfair business competition.
The law requires employers to notify mergers, acquisitions, or consolidations that exceed the value of certain assets or sales within 30 working days after the date of consolidation, merger, or acquisition of shares.
KPPU will review and issue an opinion on the competitive impact of the merger, consolidation, or acquisition within a maximum of 90 working days.
7 Kurnia Toha, ‘Urgensi Amandemen Uu Tentang Persaingan Usaha Di Indonesia: Problem Dan Tantangan’ (2019) 49(1) Jurnal Hukum & Pembangunan p. 75, 76.
8 Pasaribu, above no 6.
9 John H Shenefield and Irwin M Stelzer, The Antitrust Laws A Primer (The AEI Press, Fourth Edi, 2001), p. 57.
Government Regulation No.
57/2010 provides an opportunity for parties to notify KPPU voluntarily (voluntary merger notification) before ending a merger, acquisition, or consolidation.
This provision is intended to prevent the parties involved from suffering losses if KPPU decides to cancel the merger, acquisition, or consolidation.8 From the provisions of Article 29 paragraph (1) of Law no.
5 of 1999, it can be seen that Indonesia's business competition law adheres to Post Merger Notification or notification of mergers after the merger is carried out.
The Post Merger Notification provisions are different from the settings for the same in developed countries, such as America.
In the United States, according to the Clayton Act, Section 7. states that business actors are required to carry out a Pre Merger Notification to the United States competition authorities, the Federal Trade Commission (FTC) and the Antitrust Division, which is part of the Department of Justice of United States of America.
9 Likewise, with the provisions of Article 4 number 1 European Community Merger Regulation No.
13/2004 (ECMR), which regulates Pre Merger Notification into two types, namely Mandatory Notification, and Voluntary Notification.
Pre Merger Notification is mandatory for mergers that will lead to a concentration according to the ECMR, namely merger transactions worth more than 500 million euros worldwide and more than 250 million euros for both parties within the European Union.10 10 The Council Of The European Union, COUNCIL REGULATION (EC) No 139/2004 of 20 January 2004 on the Control of Concentrations between Undertakings (the EC Merger Regulation) 2004 1 Number 2 (‘‘COUNCIL REGULATION (EC) No 139/2004 of 20 January 2004 on the Control of Concentrations between Undertakings (the EC Merger Regulation)’’).
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 73 However, looking at the proposed merger or merger after obtaining approval from the Board of Commissioners and the General Meeting of Shareholders (GMS).
In that case, it is necessary to get prior consent from the "related agencies".
The subject matter of the substance of Article 123 paragraph (4) of the Company Law must obtain approval from the relevant agency, not to mention KPPU as a related agency.11 As a result, the Monopoly and Business Competition Law arises out of sync with the Law on Limited Liability Companies.
Indonesia adheres to a Post Merger Notification regime (Post Merger Notification) for its Mandatory Notifications.
This can be seen in Article 29 paragraph (1) of Law no.
5 of 1999 in which business actors are required to report the occurrence of a merger no later than 30 (thirty) days from the date of the merger.
Prior to the enactment of Government Regulation no.
57 of 2010 concerning Merger or Consolidation of Business Entities and Acquisition of Company Shares, which May Result in Monopolistic Practices and Unfair Business Competition, KPPU issued KPPU Regulation No.
1 of 2009 concerning Pre Merger Notification, Merger, Consolidation, and Acquisition.
In this KPPU regulation, there is a voluntary Pre Merger Notification made by parties involved in a merger transaction prior to the merger taking place.12 With the Post Merger Notification System, data shows the number of Reports on Alleged Violations of Competition Law in Indonesia.
At the end of 2019, KPPU handled 11 Republik Indonesia, Undang Undang Nomor 5 Tahun 1999 Tentang Larangan Praktek Monopoli Dan Persaingan Usaha Tidak Sehat Subsection 4 (‘‘Undang Undang Nomor 5 Tahun 1999 Tentang Larangan Praktek Monopoli Dan Persaingan Usaha Tidak Sehat’’).
12 Toha, above n 7.
4 (four) cases of suspected merger violations related to delay in acquisition notifications.
Among them is the delay in acquisition notifications of PT Mitra Barito Gemilang by PT Astra Agro Lestari, Tbk.
The acquisition process is 634 days late.
PT Terminal Bangsa Mandiri by PT FKS Multi Agro, Tbk notification delay 1,006 days, delay in acquisition notifications of PT Kharisma Cipta Dunia Sejati by PT FKS Multi Agro, Tbk notification delay 889 days and PT Pani Bersama Jaya by PT Merdeka Coopers Gold notification delay 15 days.13 As the times have developed, the dynamics of globalization of the Industrial Revolution 4.0 have created challenges for KPPU to maintain economic stability and fair business competition to not cause losses in the future.
Therefore, it is necessary to amend the provisions regarding this notification merger.
This is also supported by Kartte, who said that by sorting the light comments of an expert from the United States, he gave a parable: "It is very difficult to make a whole egg back from an omelet."
Because merger supervision should be the law's implementation, which emphasizes more on prevention (preventive) than correction.
Termination of potential negative impacts created by the merger should be done at the earliest possible stage, even before the merger becomes effective.
14 So, Indonesia can follow the merger notification system implemented in America, namely Pre Merger Notification.
Indonesia's competition law adopts a Post Merger Notification.
However, business 13 Fitri Novia Heriani, KPPU Tangani 4 Perkara Baru Terkait Merger Hingga Desember 2019, KPPU Sudah Menangani 16 Perkara Merger (2009) hukumonline.com.
14 James W Brock, ‘Antitrust, the “Relevant Market,” and the Vietnamization of American Merger Policy’ (2001) 46(4) Antitrust Bulletin, p. 735, 744.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 74 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… actors can voluntarily consult with the KPPU before the merger is completed.
One of the problems arising from implementing the Post Merger Notification is the possibility that the merger cancellation has become effective.
Thus, as a preventive measure, to minimize the chance of KPPU to cancel the merger, Post Merger Notification must be changed to Pre Merger Notification.
Based on best practices that can be seen from the Pre Merger Notification system in America, Pre Merger Notification is better than Post Merger Notification because it is more difficult for KPPU to prohibit a merger that is carried out than to prevent it.
The Pre Merger Notification regime tends to encourage businesses to seek greater cooperation with competition agencies.15 Foreign mergers, consolidations, and acquisitions that occur outside the jurisdiction of Indonesia are the KPPU's attention if they affect competition conditions in Indonesia.
Foreign entrepreneurs have a legal obligation to notify mergers, consolidations, or acquisitions.
For mergers, consolidations, and acquisitions by foreigners, the KPPU will conduct a case-by-case assessment to determine whether the related merger, consolidation, and acquisition will impact the competition in Indonesia's domestic market16 However, although foreign mergers outside Indonesia are KPPU's attention, in fact, KPPU has weaknesses.
These weaknesses include the subject of the Indonesian Business Competition Law and whether the Indonesian Business Competition Law applies to business actors outside the country but impacts the Indonesian economy.
According to Article 1 point 5, a business actor is any individual or 15 Pasaribu, above n 6, 34.
16 Pasaribu, above n 6. business entity, whether in the form of a legal entity or non-legal entity established and domiciled or carrying out activities within the jurisdiction of the Republic of Indonesia, either individually or jointly through an agreement, organizing various business activities in the economic sector.
From this formula, the subject of Law no.
5 of 1999 is anyone who carries out business activities in Indonesia.
Thus, the Indonesian Business Competition Law provisions cannot apply to business actors abroad and carry out their activities abroad.
This is different from the provisions of the Business Competition Law in various countries such as America, where the subject of Business Competition Law is not only domestic business actors but also applies to business actors abroad that impact the domestic economy.
Even the American Antitrust Law, as stated by Areeda, that the American Antitrust law can examine a person regardless of the perpetrator's personal jurisdiction.
Even some other regulations such as; The National Cooperative Research and Production Act, Webb-Pomerene Act, Export Trading Company Act of 1982, also stipulate that foreign business actors can be prosecuted in America are deemed to have violated antitrust laws or have an impact on the American economy.
This condition is, of course, very detrimental to Indonesia because Indonesian companies can be tried in other countries, while companies abroad in principle cannot be tried in Indonesia.17 In connection with the problems raised earlier, this scientific article aims to determine the success of the Pre Merger Notification, which has been implemented in the United States and to analyze the application of the Pre Merger Notification in 17 Toha, above n 7.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 75 the Draft Law so that it can be implemented optimally.
II.
LEGAL MATERIALS AND METHODS The research method is basically a series of stepwise procedures or systematic methods used to find the truth in scientific work, in this case, is journal writing, so that it can produce a quality journal, namely a journal that meets the research requirements.
18 All sources come from written materials (printed) related to research problems and other literature (electronic).19 The approach in research can be divided into two, namely a qualitative approach and a quantitative approach.
In writing this journal, the approach used is qualitative; that is, an approach in processing and analyzing data does not use numbers, symbols and/or mathematical variables but with in-depth analysis.
In the discussion, the researchers used a juridical-normative approach, a type of approach that uses statutory provisions in force in a country, or a doctrinal legal approach method, namely legal theories and opinions of legal scientists, especially those related to the issues discussed.
20 The juridical-normative approach used in this study is the approach through positive law, namely examining positive legal rules to find the application of Pre Merger Notification in the Draft Law to be optimally implemented in the Unitary State of the Republic of Indonesia.
The approach to the problem will then be sharpened by a comparative approach, and 18 Soemitro, Metodologi Penelitian Hukum (Rineka Cipta, 1990), p.10.
19 Sutrisno Hadi, Metodologi Research 1 (Gajah Mada, 1980), p. 3.
20 Soemitro, above n 18.
21 Suharsimi Arikunto, Pengantar Penelitian Hukum (Rineka Cipta, 2000), p. 234. that is the type of approach taken to compare the laws of a country with the laws of another country.
The comparative approach used in this research is the comparison made by the American Antitrust Law which has successfully implemented the Pre Merger Notification with the Indonesian Business Competition Law which implements the Post Merger Notification.
The purpose is to understand the differences between Pre Merger and Post Merger to determine the success of the Pre Merger Notification which has been implemented in the United States and to analyze the application of the Pre Merger Notification in the Draft Law hence it can be implemented optimally.
Sources of Research Material The writing of this journal is based on sources of primary research materials and sources of secondary research materials, namely:21 1.
Primary legal materials, namely binding legal materials 22 such as the 1945 Constitution; Law Number 1999 concerning the Commission for the Supervision of Business Competition and Antitrust Law in effect in America.
2.
Secondary legal materials, which explain primary legal materials, such as academic papers.
Draft Law, research results, or opinions of legal experts.
3.
Third, tertiary legal materials provide guidance and explanation for primary and secondary legal materials such as dictionaries and encyclopedias.23 Other materials that are the research object 22 Soerjono Soekanto, Pengantar Penelitian Hukum (UI Press, 1995), p.52.
23 Zainal Ammiruddin and Asikin, Pengantar Metode Penelitian Hukum (Rajagrafindo Persada, 2006), p. 31–32.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 76 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… are Books and Legislation concerning Business Law, Commercial Code, Limited Liability Companies, and Business Competitions Supervisors.
In addition, to complete the data and information, it is also necessary for the author to conduct interviews with the parties related to this journal writing theme.
III.
RESULTS AND DISSCUSSIONS Implementation of Pre Merger Notification in the United States of America Mergers, consolidations, and acquisitions have become the most popular topics in recent years.
At first, this conversation was limited to the business community, but now the general public is familiar with this business terminology.
Mergers, consolidations, and acquisitions are seen as a way to expand a business that requires a lot of cost and capital so that the merger will not be carried out if the business prospect is considered unfavorable.
In this case, it is not surprising that mergers, consolidations, and acquisitions are not new because, as a form of business development, mergers, consolidations, and acquisitions have gained recognition and their forms, one of which is in the United States since the end of the nineteenth century.
24 In the United States, there are five periods of merger activity starting in 1897.
The five periods are known as merger waves.
The existence of this merger waves has prompted the birth of regulations related to mergers, consolidations, and acquisitions such as The Sherman Act, which was enacted in 1890, The Clayton Act, which was enacted in 1914, The CellerKefauver Act, which was enacted in 1950, HartScott-Rodino Antitrust Improvements Act enacted in 1976, and other regulations.
In 24 Gunawan Widjaja, Merger dalam Perspektif Monopoli, Cet.1, (Jakarta: PT.
Raja Grafindo Persada, 2002), p. 42. turn, these regulations inspire the creation of mergers, consolidation, and acquisition arrangements in various other countries in the world.
Pre Merger Notification in the United States, regulated in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires the parties to conduct a merger or acquisition to notify the Federal Trade Commission (FTC) and the Department of Justice ( DOJ) before making improvements to the proposed acquisition.
The parties must then wait a certain period of time while the law enforcement agency reviews the proposed transaction.
The Pre Merger Program Notification became effective on 5 September 1978.
Pre Merger Notification was established to avoid some difficulties, costs and prevent violations.
Prior to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, law enforcement agencies found that violations often occur, and law enforcement agencies cannot fully restore competition once a merger occurs.
So that with the Pre Merger Notification Program, the Federal Trade Commission (FTC) and the Department of Justice (DOJ) determine which acquisitions tend to be anticompetitive and avoid unwanted things.
In general, this law requires that any proposed acquisition of voting rights, non-corporate interests (NCI), or assets be reported to the FTC and DOJ prior to improvement.
The parties must then wait based on the stipulated period, i.e., 30 days (15 days in case of cash tender offer or bankruptcy sale), before they can complete the transaction.
Much of the information required for the initial antitrust evaluation is included in the notification filed by the related parties for the proposed transaction.
During the waiting Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 77 period, the law enforcement agency evaluates whether the acquisition is compliant and meets the law's requirements.
It depends on the value of the acquisition and the parties' size, as measured by their sales and assets.
If either agency determines during the waiting period that further inquiry is necessary, it is authorized by Section 7A (e) of the Clayton Act to request additional information or documentary materials from the parties to a reported transaction (a second request).
A second request extends the waiting period for a specified period, usually 30 days (ten days in the case of a cash tender offer or bankruptcy sale), after all, parties have complied with the request (or, in the case of a tender offer or a bankruptcy sale, after the acquiring person complies).
This additional time provides the Pre Merger Notification agency with the opportunity to analyze the submitted information and to take appropriate action before the transaction is consummated.
If the Pre Merger Notification agency believes that a proposed transaction may violate the antitrust laws, it may seek an injunction in federal district court to prohibit consummation of the transaction.
25 And if the Pre Merger Notification agency believes that a proposed transaction is inviolate the antitrust laws, then the transaction is consummated.
The Pre Merger Notification Program in the USA has been a success.
The company that will conduct the merger complies with the law's requirements and has minimized the number of challenges after the merger.
In addition, although the FTC and DOJ still have the strength to challenge Post Merger mergers, the fact is that many 25 Federal Trade Commission, ‘Hart-Scott-Rodino What Is the Premerger Notification Program ?’ (March), online access on https://www.ftc.gov/sites/default/files/attachment s/premerger-introductory-guides/guide1.pdf, access on 28 March 2020, p.25.
companies are using the Pre Merger Notification program as a tool to assist in advising on acquisitions and mergers.26 In the implementation of the Pre Merger Notification in the United States of America, there is substantial interaction between the parties related to the merger and the related regulatory agencies.
Public trading companies with merger approval must finalize any potential deals with multiple government organizations, including theFederal Trade Commission, the Justice Department's Antitrust Division, and the attorney general.
The government agencies involved determine whether the merger hurts competition or creates significant obstacles.
If this is detrimental or creates obstacles, the Government Agency has the authority to postpone and prevent the agreement.
This study aims to determine whether appointments to the board of directors or management team benefit from bidders during the merger process.27 Pre Merger Notification in the United States was governed by the Hart-ScottRodino Antitrust Improvements Act of 1976.
The 1976 Hart-Scott-Rodino Act established the Federal Pre Merger Notification program, provided by the FTC and the justice department with information regarding mergers and major acquisitions before that happened.
The party conducting the transaction must submit a notification letter to the FTC (Federal Trade Commission) and DOJ (Department Of Justice).
Pre Merger Notifications include a Hart Scott Rodino form, otherwise known as "notifications and reports for certain mergers and acquisitions," 26 Federal Trade Commission, ‘What Is the Premerger Notification Program ?’, above n 25.
27 Stephen P Ferris, Reza Houston and David Javakhadze, ‘Friends in the Right Places: The Effect of Political Connections on Corporate Merger Activity’ (2016) 41 Journal of Corporate Finance, p. 81, 83.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 78 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… with information about each company's business.28 In America, Pre Merger Notification is supervised and handled by theFederal Trade Commission (FTC).
If it is equated with the State of Indonesia, the FTC is the KPPU (Commission for the Supervision of Business Competition).
The FTC is a bipartisan federal agency whose aim is to protect consumers by stopping unfair, deceptive, or fraudulent practices in the marketplace.
The FTC's job is to carry out investigations, prosecute companies and people who break the law, develop rules to guarantee a vibrant market, and educate consumers and businesses about their rights and responsibilities.
The FTC works closely with international institutions and organizations to protect consumers in global markets.29 The Pre Merger Notification System in the USA is overseen by the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice to manage merger activity.
Under the HartScott-Rodino Act's Antitrust Improvements Act, which was enacted in 1976, parties wishing to merge are required to provide a Pre Merger Notification to the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice and the Assistant Attorney General.
The decision to prevent the proposed merger is based on criteria such as the joint market share of the joint entity, the availability of substitute products, and competitors' ability to purchase Post Merger products.
If the supervisory agency determines the agreement does not limit market competition, then a merger can 28 Federal Trade Commission, ‘Hart-Scott-Rodino What Is the Premerger Notification Program ?’, above n 25.
29 Federal Trade Commission, What We Do (2020) Federal Trade Commission, online on: https://www.ftc.gov/about-ftc/what-we-do, accesed on: 28 MArch 2020. occur, and the company can join.
30 If the Supervisory Agency has concerns about the merger's effects, the company can make a second information request.
Based on data from the Federal Trade Commission website from 1997 to 2013, between 2.1% and 4.5% of all transactions reviewed annually by the FTC received a second request.
31 The Department of Justice requested additional information from about 2.0% to 4.1% from mergers annually from 1998 to 2005.
This information is needed to address merger concerns and determine whether the merger is postponed or rejected, or accepted.
The provisions of the Pre Merger Notification in the United States based on the Hart-Scott-Rodino Antitrust Improvements Act of 1976 are as follows: 1.
Establishing the Report The Act requires related parties to consider proposed business transactions that meet certain size criteria to report their intention to merge to law enforcement agencies (FTC and DOJ) prior to executing a transaction.
If a proposed transaction is reported, the acquirer and the person whose business is being acquired must send information about their respective business operations to law enforcement agencies and wait a certain period of time before executing the proposed transaction.
During that waiting period, law enforcement agencies reviewed the antitrust implications regarding the proposed transaction, whether these transactions can be reported and determined by the application of laws, regulations, and 30 Ferris, Houston and Javakhadze, above n 27.
31 Federal Trade Commission, “Annual Reports To Congress Pursuant To The Hart-Scott-Rodino Antitrust Improvements Act Of 1976,” Federal Trade Commission, 2019, https://www.ftc.gov/policy/reports/policyreports/annual-competition-reports.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 79 formal and informal interpretations.
The Laws and Regulations require that the acquiree and the acquired parties file a notification if they meet the following requirements: a.
As a result of the transaction, the acquirer will have the aggregate amount of the acquiree's securities, NCI and/or assets of more than $ 200 million (adjusted), regardless of the sale or assets of the acquisition and the acquired persons; or b.
As a result of the transaction, the acquirer will have the aggregate amount of the acquiree's securities, NCI and/or assets worth more than $ 50 million (adjusted) but $ 200 million (adjusted) or less; and c. The person has at least $ 100 million in sales or assets (as adjusted); and d. The other person has sales or assets of at least $ 10 million (as adjusted).
2.
Size of Transaction Test The first step is to determine what sound securities, NCI, assets, or a combination thereof are being transferred in the proposed transaction.
Then the value of the securities, NCI, and/or assets, as well as the percentage of ballot papers and NCI that will be held, must be determined as a result of the acquisition.
Calculating what will be held as a result of the acquisition is also known as the transaction size.
It is complex and requires the application of several rules, including the 801.10, 801.12, 801.13, 32 Federal Trade Commission, ‘Hart-Scott-Rodino What Is the Premerger Notification Program ?’, above n 25.
33 Federal Trade Commission, ‘Hart-Scott-Rodino When You Must File a Premerger Notification Report Form’, onlice on: 801.14, and 801.15 Rules.32 The amount of the transaction test is related to the value of what is being obtained.
Since the purpose of the Pre Merger Notification Program is to analyze the effects of a separate business combination, the general rule requires that the assets, ballot papers, or NCIs of the persons already acquired must be combined with those to be acquired in the proposed transaction.
When what has been purchased and what will be purchased in the current acquisition meet the transaction criteria' size, the transaction will be considered by law enforcement agencies (FTC and DOJ).33 Generally, securities and/or NCI held as a result of a transaction are similar to securities and/or NCI from the acquiree or in the acquiree, which is already owned by the acquirer.
Assets held as a result of the acquisition include those to be acquired in a proposed transaction as well as certain assets of the acquirer that the acquirer buys within the time limit described in rule 801.13.
If the value of the ballot, NCI, assets, or a combination thereof exceeds $ 200 million and no exemptions apply, the parties must file a notice and await a law enforcement agency decision before closing the transaction.
If the value of the ballot paper, NCI, assets, or a combination thereof exceeds $ 50 million, but $ 200 million (adjusted) or less, the parties should look to each party's test size of the transaction.34 https://www.ftc.gov/sites/default/files/attachment s/premerger-introductory-guides/guide2.pdf, p. 4, accessed on 28 March 2020.
34 Federal Trade Commission, ‘Hart-Scott-Rodino What Is the Premerger Notification Program ?’, above n 25.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 80 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… 3.
Actuires the Acquiree/Acquired Entity The first step in determining the size of the person is to identify "acquirers" and "acquiree".
"Person" defined in rule 801.1 (a) (1) is both a buyer and a seller.
Thus, in an asset acquisition, the person who acquires (acquirer) is the buyer, and the person acquired (acquiree) is the seller.
An acquired entity is an entity whose assets are acquired.
In a voting acquisition, the acquirer is the buyer.
The acquirer is the seller of the entity whose assets were purchased.
The acquired entity is an expense for the securities purchased.
In an NCI acquisition, the acquirer is the buyer, the acquirer is the entity that NCI purchased, and the acquired entity is the entity that NCI is acquired.
4.
Size Of Person Test After the acquirer and acquiree are determined, you must determine whether the size of each person meets the statutory minimum size criteria.
This "person measure" test generally measures a company based on a recent annual statement prepared periodically by a person with income and expenses and a recent balance sheet prepared regularly.
If the value of the ballot, NCI, assets, or a combination thereof exceeds $ 50 million, but $ 200 million (adjusted) or less, the person test measure is met, and no exemptions apply, the parties must file notification and await the judgment of the law enforcement agency before closing the transaction.
5.
Free Transactions In some cases, a transaction may not be reported even though the size of the person and transaction have been met.
The laws and regulations provide for several exceptions.
For example, the acquisition of certain assets in the ordinary course of a person's business is excluded, including new goods and current inventory.
For example, an airline buys a new jet from a manufacturer, or a supermarket buys its inventory from a wholesale distributor.
The acquisition of certain types of real estate also requires no notification.
In addition, the acquisition of foreign assets will be exempted where the sale inside or outside the US caused by the assets is $ 50 million or less.
Once it has determined that a particular transaction is reportable, each party must notify the FTC and the DOJ.
Also, any acquirer must pay a filing fee to the FTC for every reported transaction.
6.
Reported Information In general, party filing is needed to identify the people involved and structure the transactions.
Reporters must also provide certain documents such as balance sheets and other financial data and copies of certain documents filed by the Securities and Exchange Commission.
The parties must also submit specific planning and evaluation documents relating to the proposed transaction.
It then requires the parties to disclose whether the acquirer and the acquired entity currently derive income from its business and inform them of the geographic areas they operate in.
The acquirer must also describe the previous acquisitions in the last five years of the company or assets involved in the business.
The acquirer must complete Forms for all of their operations.
7.
Certification and Written Statements Rule 803.5 specifies a written statement Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 81 that must accompany certain Forms.
A written statement must be submitted in a transaction where the acquirer buys voting securities from the shareholders.
The acquirer must state in a written statement that it has good faith intentions to complete the proposed transaction and provide the acquiree with notice of potential reporting obligations.
In all other transactions, each acquiree and acquirer must submit a statement with their Form, attesting to the fact that the contract, principle agreement, or letter of intent has been executed and that each person has good intentions to complete the proposed transaction.
Rule 803.6 states that the Form must be certified and the rules specify who must certify.
One of the main objectives of certification is to preserve the proven value of the records and to place the responsibility on a person to ensure that the information reported is accurate and complete.
Both certification and written statements must be made to be legally valid.
8.
Filing Procedure Parties must complete and return original documents and a copy of the Form, together with a set of documentary attachments, to the Pre Merger Notification Office, Competition Bureau, Federal Trade Commission.
Together with a set of documentary attachments, three copies of the Form must be sent to the Department of Justice, Antitrust Division.
9.
Form Submission Fees The filing fee is based on a three-tier system that binds the amount paid to the total value of securities, NCI, or assets held as a result of the acquisition.
Value of Securities, NCI, or Assets Held Total Cost More than $50 million but less than $100 million $45.000 $100 million or more but less than $500 million $125.000 $ 500 million or more $280.00 For transactions in which more than one person is considered the acquirer, each acquirer must pay an appropriate fee.
In addition, the acquirer will have to pay some filing fees if a series of acquisitions are reported separately.
The filing fee must be paid upon filing to the "Federal Trade Commission" by electronic, wire transfer, bank cashier check, or certified check.
10.
Waiting Period After filing, the parties concerned must wait.
The waiting period is 15 days for acquisitions reported by the cash tender offer vehicle, as well as for acquisitions subject to certain federal bankruptcy and 30 days for all types of reportable transactions.
The waiting period may be extended by the issuance of requests for additional information and documentary material.
The waiting period that will end on a Saturday, Sunday or an official holiday will end on a normal working day on the following day.
11. Review of Forms (Filing) After the Forms have been submitted, law enforcement agencies initiate document reviews from relevant parties.
The FTC is responsible for the administration of the Program Pre Merger Notification.
The Pre Merger Notification Office (PNO) Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 82 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… determines whether a Form complies with the Laws and Regulations.
This Form is given to PNO staff members to assess whether the transaction is compliant and has been filled in completely and clearly.
If filing seems lacking, staff members will notify relevant parties to correct the error.
When the PNO determines that the Form complies with all filing requirements, a letter is sent to the parties identifying the start and end of the waiting period, as well as the transaction number assigned to the filing.
12.
Antitrust Review of Transactions FTC and DOJ conduct preliminary substantive reviews of the proposed transactions.
The two agencies analyze the submission of forms to determine whether the acquiring and acquiring companies are complying with regulations and influencing competition.
Staff members depend not only on the information included in the Forms but also on publicly available information.
The individuals who analyze Forms often have experience with markets or companies that are involved in certain transactions.
As a result, they have the industry expertise to assist in evaluating the likelihood of a merger as dangerous or not.35 Application of Pre Merger Notification in the Draft Law so that it can be implemented optimally Het Recht Hink Achter De Feiten Aan, 35 Ibid.
36 Hassanain Haykal, ‘Pembangunan Hukum Siber Guna Pemanfaatan Ekonomi Berbasis Teknologi Informasi Dalam Rangka Mewujudkan Ketahanan Nasional’ (2017) 9(1) Dialogia Iuridica: Jurnal Hukum Bisnis dan Investasi, p. 58, 38. where the term definition of the Dutch legal motto is law or legislation behind the events that appear in society.
The law is constantly struggling to catch up with the events/facts it is supposed to regulate.36 This reinforces that the existence of opinions from the public and experts will provide better changes in the Business Competition Law material so that it can be implemented optimally.
At this time, technological developments are growing rapidly, from interconnection, data analysis, and sensor technology which gave rise to ideas to make technology develop and become the next Industrial Revolution, namely, the Industrial Revolution 4.0.
This phenomenon is believed to be able to provide many benefits, including improving the speed of production flexibility, improving service to customers, and increasing collective income.
37 Seeing this reality, the existence of the Industrial Revolution 4.0 is an important matter that the state as a policyholder must be aware of, because it is feared that it could become a threat to the stability of the country's economy.
The impact of the industrial revolution will cause problems, especially in the form of business competition, in which entrepreneurs will certainly take advantage of this phenomenon to be able to dominate the trade market.
This certainly can lead to unfair competition.38 Referring to Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition in Articles 28 and 29, it states that the existence of a merger of a company has the potential for unfair business competition practices, 37 Heiner Lasi et al, ‘Industry 4.0’ (2014) 6(4) Business and Information Systems Engineering, p. 239, 239.
38 Farid Ibrahim Suhandi, ‘Kebijakan Pre-Merger Notification Badan Usaha Sebagai Penegakan Hukum Di Era Revolusi Industri 4.0’ (2019) 3(2) Lex Scientia Law Review, p. 129, 130.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 83 therefore if it is linked to the Industrial Revolution 4.0 Therefore, the high desire of companies to conduct mergers is predicted to be higher so that in this case it becomes a challenge for the Business Competition Supervision Commission (KPPU) to be able to protect market conditions as dynamically as possible and how to resolve any problems that arise.
With the Industrial Revolution 4.0, it is necessary to optimize the authority of KPPU in order to adjust to market dynamics.
The merger of a company is a situation that has the potential to create a form of unfair business competition.
This is of course the KPPU's authority to be able to provide supervision and evaluation on this matter, however, with the Post Merger provisions still in effect, there is a possibility that a merger cancellation will result in losses suffered by the company.
Therefore, it is necessary to change the provisions to become Pre Merger Notification as a preventive measure to minimize unwanted losses because it is better to do prevention than correction.
Thus, it is hoped that KPPU will be able to become the main protector of creating a fair and conducive market condition so that Indonesia is still able to maintain economic stability so that there is no unfair business competition or monopolistic practices.39 That is, a merger can have a positive impact when it manages to allocate efficiently and effectively the use of existing resources to create new products or new technologies that are useful to society.
An example is a merger between a new company that has high technology but minimal funds with a large company that has a large excess of funds through the merger, the company resulting 39 Ibrahim Suhandi, above n 38.
40 Perdana A Saputro, Hukum Meger Indonesia Dalam Konteks Hukum Persaingan Usaha (CR Publising, 2012), p. 11. from the merger will have the ability to create new products using technology resources owned by the new company and use the source of funds owned by these large companies.
40 In her study, Maria Vaglia Sindi concluded that the effective implementation of competition law is a difficult task, requiring a high level of knowledge and expertise.
The initial structural conditions that occur in the transition economy from protection to liberalization, especially in developing countries like Indonesia, make the implementation of competition law a more challenging task than the implementation of competition law in developed countries.
Entry barriers arising from high market concentration, government control and ownership, and administrative barriers are all high in transition economies.41 .
In the United States, the position of competition law (Antitrust Law) is likened to the Magna Carta for freedom of business.
Where economic liberty and freedom of effort systems are as important as the Bill of Rights which protects human rights in the United States.
In the American Antitrust Law, as stated by Areeda, that the American Antitrust law can examine a person regardless of the personal jurisdiction of the perpetrator.
This means that the subject of Business Competition Law is not only domestic business actors, but also applies to overseas business actors who have an impact on the domestic economy.
That every business actor in the country as well as business actors abroad can be tried in America if they are deemed to have violated antitrust laws or have an impact on the 41 Maria Vagliasindi, ‘Competition Across Transition Economies: An Enterprise-Level Analysis of The Main Policy and Structural Determinants’ (68, 2001), p. 6.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 84 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… American economy.42 In one competition law case, a court in the United States convicted a Canadian-based oil company, Imperial Oil, to divest its stake in Standard Oil because the monopoly carried out by Standard Oil through its construction trust was deemed to endanger the US economy.
In its development, the United States government issued The Foreign Trade Antitrust Improvements Act in 1976 in essence that the firm legitimacy for the United States' competition law to be applied to actions that took place outside the United States but directly and substantially affected trade in the United States.43 Unlike in the State of Indonesia, the legal subject of competition law in Indonesia is domestic business actors as described in Article 1 point 5 of Law no.
5 of 1999 "business actor is any individual or business entity, whether in the form of a legal entity or non-legal entity established and domiciled or carrying out activities within the jurisdiction of the Republic of Indonesia, either individually or collectively through an agreement, to carry out various business activities in economics".
From this formula, the subject of Law no.
5 of 1999 is anyone who carries out business activities in Indonesia.
This is undoubtedly detrimental to Indonesia, because Indonesian companies can be tried in other countries, but foreign companies that violate them cannot be prosecuted in Indonesia.
In the United States according to the Clayton Act, Section 7, it states that business actors are required to carry out a Pre Merger Notification to the United States competition authorities, the Federal Trade Commission (FTC) and the 42 Toha, above n 7.
43 Takaaki Kojima, ‘International Conflicts over The Extraterritorial Application of Competition Law in Borderless Company’ [2002] (57) New York 2001, p. 3.
Antitrust Division which is part of the Department of Justice of The United States, of course, aims to prevent unfair business competition or monopolistic practices.
There are examples of cases in Case No.
09/KPPU-L/2009, PT Carrefour Indonesia acquired 75% (seventy-five percent) of the shares of PT Alfa Retailindo, Tbk.
(Alfa) in January 2008.
In this case, KPPU assessed that the acquisition made by PT Carrefour Indonesia against PT Alfa Retailindo, Tbk, was suspected of violating Law no.
5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition.
Article 17 violations committed by Carrefour include, among others, Article 17 prohibiting control over production tools and control of goods which can trigger monopolistic practices, Article 20 concerning the prohibition of predatory pricing or selling at a loss, Article 25 paragraph (1) contains the dominant position in determining conditions.
trade to prevent consumers from obtaining competitive goods and or services, both in terms of price and quality, and Article 28 concerning the prohibition of merging or consolidating business entities which may result in monopolistic practices and or unfair business competition.44 After Carrefour acquired PT Alfa Retailindo, Carrefour allegedly controlled the retail market 48.38%, an increase from 37.98% previously.
Carrefour is also suspected of controlling 66.73% of the supplier market from 44.72% previously.
The soaring market share made Carrefour company freely charge its suppliers high costs.45 On November 11, 2009, the Business Competition Supervision Commission 44 detikFinance, Kasus Akuisisi Alfa, Nasib Carrefour Ditentukan Besok (2009) detikFinance.
45 Tempo.co, Akuisisi Alfa Carrefour Terancam Bubar (2009) Tempo.co.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 85 (KPPU) decided that PT Carrefour Indonesia was guilty of monopolistic practices by acquiring PT.
Alfa Retailindo was proven legally violating Article 17 paragraph (1) and Article 25 paragraph (1) Law no.
5 of 1999.
Therefore, KPPU ordered to release all of its 75 percent ownership shares in PT Alfa Retailindo, Tbk, to parties that are not affiliated with PT.
Carrefour Indonesia no later than one year after the verdict is final.
The KPPU also punished PT Carrefour Indonesia to pay a fine of Rp.
25 billion that had to be deposited in the State treasury as payment for income from violations in the field of trade business competition.46 Then, several years ago, Carrefour was also involved in problems with KPPU.
In August 2005, KPPU found Carrefour guilty of violating Article 19 (1) of Law no.
5 of 1999.
Carrefour was fined Rp.
1.5 billion.
Besides, Carrefour was asked to stop the minus margin policy in trading terms for suppliers of goods.47 Unlike the case with countries that have implemented Pre Merger Notification, the failure rate of mergers is very few and the success of mergers and acquisitions is dominant.
Here are some companies that have successfully merged, including: 1.
Pfizer and Allergan The merger of these two companies is quite successful and has fantastic value, with a value of US $ 191 billion.
Pfizer is a giant pharmaceutical company from America, while Allergan is an Irish company.
They had previously announced to conduct a merger in November 2015.
The merger of these two companies became a merger agreement of 46 “KPPU : Carrefour Terbukti Melakukan Monopoli”, kompas.com, last modified 2009, accessed 31 Mei, 2020 pukul 22.47 WIB, https://ekonomi.kompas.com/read/2009/11/03/17 extraordinary value and even the second largest after the acquisition of the Mannesman company by the Vodafone company in 1999.48 2.
Disney and Pixar In 2006, Walt Disney acquired Pixar for $ 7.4 billion.
Since mergers and acquisitions, films such as Finding Dory, Toy Story 3, and WALL-E have generated billions of successes.
Three years after the Pixar acquisition, Disney CEO Bob Igner acquired Marvel for $ 4 billion.
Thus, 11 Marvel films have successfully generated over $ 3.5 billion in revenue since the acquisition.
3.
Google and Android In 2005, Google acquired Android for $ 50 million.
At that time, Android was an unknown cell phone company.
So this move allows Google to compete in Microsoft's market with Windows Mobile and Apple's iPhone.
Mergers and acquisitions between Google and Android are a successful example, and 54.5 percent of smartphone customers in the United States used Google Android devices in May 2018.
4.
H.J.
Heinz and Kraft Foods Merger In 2015, the two companies agreed to a $ 100 billion merger.
The newly formed Kraft Heinz Company became the thirdlargest food and beverage company in the United States and the fifth-largest worldwide.
Many household food brands such as Philadelphia, Capri Sun, and Heinz tomatoes are now under one company.
The two companies have successfully merged.
5.
Dow Chemical and DuPont 533698/kppu.carrefour.terbukti.melakukan.mono poli 47 detikFinance, above n 44.
48 Novriyanto, 5 Perusahaan Hasil Merjer Yang Sukses (2015) koinworks.com.
https://ekonomi.kompas.com/read/2009/11/03/17533698/kppu.carrefour.terbukti.melakukan.monopoli https://ekonomi.kompas.com/read/2009/11/03/17533698/kppu.carrefour.terbukti.melakukan.monopoli https://ekonomi.kompas.com/read/2009/11/03/17533698/kppu.carrefour.terbukti.melakukan.monopoli Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 86 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… In 2015 Dow Chemical and DuPont merged for $ 130 billion, and the merger took place in 2017.
The merger between Dow Chemical and DuPont is seen as an example of a successful merger aimed at creating a highly focused business in materials science, agriculture, and other specialty products.
This joint venture is known as DowDuPont inc and is listed on the New York stock exchange.
Dow chemical shareholders receive a fixed exchange rate of 1.00 DowDuPont shares for each Dow chemical market share they own.
And to the other hand, DuPont shareholders receive a fixed exchange rate of 1.282 DowDuPont shares for every existing DuPont share49 In connection with the Industrial Revolution 4.0 era's progress and seeing the many problems of mergers in Indonesia by comparing the fairly high success rate with countries implementing Pre Merger Notification, KPPU should change the policy direction from Post Merger Notification to Pre Merger Notification because KPPU can take preventive action through earlier supervision before the company carries out the merger, because if it continues to implement the Post Merger Notification form, it will indirectly hinder the development of the economic process in the era of the Industrial Revolution 4.0 because of the problems that arise after the merger, namely the potential for new reports that indicate unfair competition practices, and will resulting in the dissolution of the joint company for the merger that has been carried out, then the role of KPPU in supervising the merger practice of a business entity is currently considered less than optimal, because the supervisory mechanism There 49 Lewis Marsha, Examples of Most Successful Company Mergers and Acquisitions of All Time (2020) dealroom.net.
are companies only stipulating that the merger is reported no later than 30 (thirty) days from the date the merger takes effect and in practice the current role of KPPU regarding the merger or merger of a company is only to act as an advisor and provide notification which is not an obligation for the company.
As a logical consequence of the Post Merger Notification implementation, it may create the possibility of a situation where the KPPU can cancel the merger of business actors who have conducted the merger because they are considered contrary to the spirit of fair business competition.
With this possibility, it is, of course, very detrimental to business actors and the state.
Therefore, the regulation regarding merger notification in Indonesia should be abandoned and updated because, in fact, almost all business competition law jurisdictions in other countries apply Pre Merger Notification.
This is in line with the development of business competition law jurisdictions in other countries, which have implemented many Pre Merger Notifications, because they are considered to be more beneficial for both parties, namely the state and business actors.
50 Even so, Government Regulation Number 57 of 2010 concerning Merger or Consolidation of Business Entities and Acquisition of Company Shares Which May Result in Monopolistic Practices and Unfair Business Competition has regulated business actors to conduct pre-notification reporting in the form of consultation.
However, this does not eliminate the obligation of business actors to report after the merger, acquisition or consolidation actions are completed legally effective.
Of the 85 reports submitted by business actors up to December 2017, 50 Ibrahim Suhandi, above n 38.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law Sumirat, Dirkareshza The Implementation of Pre Merger Notification in The Draft Law... | 87 KPPU only received one report in consultations in the manufacturing industry.
51 This occurs, because business actors prefer to use Post Merger Notification rather than Pre Merger Notification.
Based on this, it is appropriate to change the regime from Post Merger Notification to Pre Merger Notification with the aim that business actors have the obligation to report pre-notification not only in the form of consultation.
This is supported by the Commissioner Member and KPPU Spokesperson statement, Guntur Saragih, assessing that the Pre Merger Notification scheme provides more legal certainty for business actors regarding these business actions.
Because with the Post Merger Notification sceme, there is a risk of cancellation if the merger, consolidation and acquisition action violates business competition.52 The Pre Merger Notification scheme was implemented more efficiently by KPPU to ensure that previously mergers, acquisitions, and consolidations did not conflict with Law No.
5 of 1999 because every business actor is required to notify the KPPU regarding matters of merger implementation and whether the merger has met the values in accordance with the applicable regulations.
Based on the application of various countries, the Pre Merger Notification regime is more appropriate because it can promote increased business competition and balance market concentration.
Thus, the State of Indonesia is expected to be able to implement Pre Merger Notification in the draft law so that it can be optimally implemented as the United States 51 KPPU, Laporan Kinerja Komisi Pengawas Persaingan Usaha 2017 (KPPU, 2017), p. 8.
52 Mochamad Januar Rizki, Wacana Pre-Merger Notification Menguat Dalam Revisi UU Persaingan Usaha KPPU Dapat Membatalkan Aksi Merger, Konsolidasi Dan Akuisisi Yang Telah RampunG (2019) hukumonline.com.
has successfully implemented the Pre Merger Notification policy.
Merger Implementation in Limited Liability Company Law.
Merger or merger in the limited liability company law states: "Merger is a legal action taken by one or more companies to merge with another existing company, resulting in the assets and liabilities of the merging Company being transferred due to the law to the company accepting the merger.
and subsequently the status of the merging Company legal entity ends because of the law ”.53 The status as a legal entity will expire from the date the merger comes into effect.54 The Limited Liability Company Law also states that the legal action of a merger or merger must take into account the interests of certain parties, which consist of:55 a.
The interests of the Company, minority shareholders, company employees; b.
The interests of creditors and other business partners of the Company, and; c. Public interest and healthy competition in doing business.
After obtaining approval from the Board of Commissioners and the General Meeting of Shareholders (GMS), the proposed merger or merger is required to obtain prior approval from the “related agencies”.
However, the Limited Liability Company law only states that the related institution is Bank Indonesia if it is related to banking companies and institutions related to the capital market for public companies.
The law does not mention that KPPU is related to 53 Republik Indonesia, Undang-Undang No 40 Tentang Perseroan Tebatas 2007 1 Subsection 9 (‘‘Undang-Undang No 40 Tentang Perseroan Tebatas’’).
54 Muhammad Yahya Harahap, Hukum Perseroan Terbatas (Sinar Grafika, 2019), p. 485.
55 Harahap, sec.
486.
Brawijaya Law Journal Vol.8 No.1 (2021) Contemporary Issue in Private Law 88 | Sumirat, Dirkareshza The Implementation Of Pre Merger Notification In The Draft Law… Business Competition.56 This means that the concept of the Monopoly and Business Competition Law is Pre Merger as the Limited Liability Company Law.
Although the Monopoly and Business Competition Law is a lex specialist and the Company Law, in this case, it must be synchronous because the Limited Liability Company Law states that mergers or mergers must meet the requirements of taking into account the interests of certain parties, one of which is the interests of the community and fair competition in doing business.
IV.
CONCLUSION The implementation of the Post Merger Notification regime in the Monopoly and Business Competition Law has caused many problems of business competition which gives the public a loss for monopolistic practices and business competition so that Post Merger Notification obligations are not effective enough to prevent unfair business competition in Indonesia.
The application of the Post Merger regime in the Law on Monopoly and Business Competition is apparently out of sync with the Limited Liability Company Law, which states that the merger or merger process must obtain approval from the relevant agencies, namely in the interests of the community or business competition.
Although the Company Law does not mention KKPU as a related agency.
Merger, consolidation, and takeover activities are carried out to maximize company value to business actors and void monopolistic practices and unfair business competition.
Therefore, the activities of mergers, consolidations, and share acquisitions require approval from the Business Competition Supervisory 56 Ibid.
Commission.
Thus, the idea of a regime changes from Post Merger Notification to Pre Merger Notification should be done as a change in the Business Competition Supervisory Commission (KPPU) to create a better balance market dynamics in maintaining economic stability in the business competition so that there will be no monopolistic practice or unfair competition.
Indonesia should emulate countries such as the United States that have successfully implemented Pre Merger Notification.
Because the Pre Merger Notification policy certainly has a positive impact on business actors, KPPU, and the State and KPPU are more efficient in carrying out supervision and prevention earlier than canceling the merger after the merger is implemented.
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39 CONSTITUTIONAL RIGHTS FOR PERSONS WITH DISABILITIES IN INDONESIA: PRESENT AND FUTURE REGULATIONS (A Comparative Perspective between Indonesia and Malaysia) Indri Sukmawati Djangko Faculty of Law, Brawijaya University Email: indridjangko@gmail.com ABSTRACT Recognition of similar rights between persons with disabilities and common people has become a global issue.
The world has been realized this point and initiated some international programs to fight the rights for persons with disabilities.
Indonesia has already recognized the disabilities people rights in constitution and other regulation.
Contrary to the fact that the awareness of human right fulfillment for person with disabilities is already contained in Indonesian regulations, its realization is not enough to guarantee the welfare and human rights fulfillment for every person with disabilities.
Through library research which is used as a method of data collection in this paper, the author compares the fulfillment of human rights for persons with disabilities in Indonesia and Malaysia.
In this paper, the author explains constitutional rights that support the human rights’ existence for persons with disabilities, as well as describes the rights that are mandated in every level of regulation hierarchy that specifically regulating persons with disabilities.
In the end, this paper also suggests alternative solution for Indonesia in the future.
Keywords: disabilities, rights, Indonesian Law, Malaysian Law I.
INTRODUCTION Constitutional rights are important issues contained directly in modern constitution 1 .
It is an obligation, not only for every citizen to apply it in their life—both as individual and as social being—but also for government as the main stakeholder in 1 Presented at the Public Dialogue and the National Consultative Commission of Women "Women and the Constitution in the Era of Regional Autonomy: Challenges and Attitude Together".
Jakarta, 27 November 2007 by the Chairman of the Constitutional Court, Jimmly Ashidiqie.
hierarchical state structure.
Indonesia as a state with the ideology of Pancasila also upholds respect for human rights.
Each principle of Pancasila indicates respect for every individual human being.
Pancasila is a hierarchy in a form of pyramid 2 ; it illustrates 2 According to Notonegoro, the five principles of Pancasila was an inseparable unity and should not be turned upside down without changing the core contents.
Interpreted as a series of hierarchical levels in the breadth of content, while the pyramidal shape because every precept that there is more under the specialization of morality in it.
Above precepts are the basis, meaning and inspiration subsequent mailto:indridjangko@gmail.com 40 a strong, inseparable, and interrelated connection between each of its principles.
Therefore, all of the principles must be embodied comprehensively.
To be exact, the spirit of Pancasila boils down to uphold human rights without exception, including persons with disabilities 3 .
Recognition of similar rights between persons with disabilities and common people has become a global issue.
The world has been realized this point and initiated some international programs to fight the rights for persons with disabilities.
According to the recognition of human rights for persons with disabilities’ chronology 4 , there was a long journey to precepts.
More see P.J.
Suwarno, Pancasila Indonesian National Culture, Canisius, 1993, p. 87.
3 Earlier, before the term "persons with disabilities" is used, other terms refer to people who do not lack the physical and mental abilities, such as: “the disabled”.
To respect the people, in Bahasa Indonesia the term "the disabled" has been replaced with "persons with disabilities".
This terminology has officially declared at the time of ratification CPRD official translation of "person with disability" is people with disabilities.
More see Eva Rahim Kasim, Chronological Efforts Ratification The Convention on the Rights of Persons With Disabilities in Indonesia, paper presented at Seminar Day of CRPD and its’ Implementation in Form Inclusive Local Development Policy in West Sumatra, Padang, February 4, 2013. https: // www.academia.edu/4728310/KRONOLOGIS_UPA YA_RATIFIKASI_THE_CONVENTION_ON_THE _RIGHTS_OF_PERSONS_WITH_DISABILITIES_ KONVENSI_HAKHAK_PENYANDANG_DISABILITAS_DI_INDON ESIA_Oleh_Eva_Rahmi_Kasim 4 realize an international convention, namely The Convention on The Rights of Persons with Disabilities (CRPD).
Up to now, CRPD is the spearhead for the human rights recognition of persons with disabilities and its fulfillment in some states around the world.
Indonesia has ratified this convention in the Law No.
19 of the year 2011 on Ratification of Convention upon the Rights of Persons with Disabilities.
In Indonesian regulation, especially on Indonesian Basic Constitution of Undang-Undang Dasar Negara Republik Indonesia Tahun 1945, there is a regulation about similar rights for every citizen without exception.
This is contained in the preambule (opening part) as one purpose of the nation.
This point is also contained in Chapter IX of Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 about Human Rights 5 .
This regulation of human rights applies generally for every citizen, including persons with disabilities.
To implement the mandate of the 5 In general matters set forth in Chapter IX of the Constitution of RI 1945 on Human Rights included: the right to survive (28 A), forming a family and continue the descent without discrimination (28 B), self-development through the fulfillment of basic needs (28 C), rights of legal certainty, greeting opportunity in government, and citizenship (28 D), freedom of religion (28 E), the right to communicate (28 F), the protection of self and family in terms of honor, property, free from threats, torture and degrading treatment (28 G), welfare (28 H), and the right to independence in life, thought and conscience (28 I) 41 constitution, regulations under UndangUndang Dasar Negara Republik Indonesia Tahun 1945 also regulates the rights of person with disabilities.
Before the ratification of CRPD in Indonesia, there were some regulations about persons with disabilities, such as Law No.
39 Year 1999 on Human Rights and Law No.
4 Year 1997 on Person with Disabilities In international context, just before and after the convention of CRPD, there were real actions to express the need of human rights fulfillment for persons with disabilities.
One of the examples is the 1993 Vienna Convention.
In this convention, there was an urgent necessity for governments to facilitate the needs of persons with disabilities—one of them was in the field of policy-making and planning.
This section described that all states must: a) initiate and plan adequate policies in national level; stimulate and support action at regional and local levels; b) get involve in organizations of PWDs on all decisionmaking relating to their interests; c) incorporate the needs and concerns of persons with disabilities into general development plans and not to treat it separately; d) provide public services to be easily accessed by persons with disabilities in their activities; e) facilitate the programs development and evaluation by local communities.
6 Australia includes disabilities program as the main national achievement that has a clear legislation basis, program principle, development priority, corresponding time with the mainframe, founding stages and another work steps that appropriate with its national needs 7 .
This issue has also been done by one of ASEAN state—Malaysia—which has complete stages of founding, starts from the wisdom regulation until the comprehensively planned application for their citizen life 8 .
Contrary to the fact that the awareness of human right fulfillment for person with disabilities is already contained in Indonesian regulations, its realization is not enough to guarantee the welfare and human rights fulfillment for every person with disabilities.
According to the data of PUSDATIN from Indonesian Social Ministry, the number of person with 6 Rebecca Wallace, International Human Rights Text and Materials, London: Sweet & Maxwell, 1997, page 278.
7 Social Ministry of Australia, Planning assessment urgent cases http://www.ndis.gov.au /sites/default/files/documents/og_planning_assessme nt _urgent_cases.pdf Publication date: 9 December 2013 diakses pada tanggal 28 Oktober 2014 8 Abdul Munawar, Malaysia dan Australia, Surga bagi Kaum Disabilitas, http://health.liputan6 .com/read/771028/malaysia-dan-australia-surga-bagikaum-disabilitas.
Diakses pada tanggal 28 Oktober 2014 http://health.liputan6/ 42 disabilities in Indonesia is approximately 11,580,117 persons.
Among this number includes 3,474,035 blind people, 3,010,830 physically disabled people, 2,547,626 people with hearing disabilities, 1,389,614 mentally disabled people and 1,158,012 chronically disabled people.
Furthermore, according to the data from Indonesian Manpower and Transmigration Ministry, in 2010 the number of person with disabilities was around 7,126,409.
The inaccurate data on the number of persons with disabilities hampered some actions to be performed.
Moreover, there is also no accurate data about public facilities for persons with disabilities provided by the government 9 .
Besides, laws on special access for persons with disabilities are still unable to accommodate equality for every citizen 10 .
It is somehow worsened by the lack of social guarantee for citizen with disabilities 11 .
9 ILO,Inklusi Penyandang Disabilitas di Indonesia.
http://www.ilo.org/wcmsp5/groups /public/---asia/---ro-bangkok/---ilojakarta/documents/publication/wcms_233426.pdf diakses pada tanggal 28 Oktober 2014 10 Iffah Nur Arifah, Kesadaran Hukum Difabel Indonesia Rendah, http://www.radioaustralia.net.au/indonesian/2014-0501/kesadaran-hukum-difabel-indonesiarendah/1303744 diakses pada tanggal 28 Oktober 2014 11 Persepsi, Ribuan Orang Difabel di Klaten Tak Dapat Jaminan Sosial,http://www.persepsiklaten.org/sosial/ribuan-orang-difabel-di-klaten-takdapat-jaminan-sosial, diakses pada tanggal 28 Oktober 2014.
The discrimination on almost every aspect of the life of persons with disabilities makes the author interested in examining the rights for persons with disabilities.
As citizen who recognized by positive law in Indonesia, persons with disabilities deserve appropriate treatment in accordance to the constitutional mandate and other regulations about it.
It is important to consider the equal rights between persons with disabilities and other citizens.
Indonesia needs to take into account some lessons from countries which already implement the fulfillment of human rights for persons with disabilities; for example, Malaysia.
Through library research which is used as a method of data collection in this paper, the author compares the fulfillment of human rights for persons with disabilities in Indonesia and Malaysia.
In this paper, the author explains constitutional rights that support the human rights’ existence for persons with disabilities.
This paper also describes the rights that are mandated in every level of regulation hierarchy that specifically regulating persons with disabilities.
In the end, this paper also suggests alternative solution for Indonesia in the future.
II.
METHODE OF RESEARCH http://www.ilo.org/wcmsp5/groups 43 This paper uses juridical-normative method, including reviewing and analyzing the rules of Indonesian and Malaysian law concerning protection of disabilities rights, as well conducting a comprehensive analysis of Indonesian and Malaysian Law.
The approach in this paper is the Statute and comparative approach, which in this research will explore the comparison of law and constitution between Indonesia and Malaysia.
Through library research which is used as a method of data collection in this paper, the author compares the fulfillment of human rights for persons with disabilities in Indonesia and Malaysia.
III.
RESULT AND DISCUSSION A.
Constitutional Rights for People with Disabilities in Indonesia and Malaysia Legally Binding Power of Constitution between Civil Law States and Common Law States Countries with common law or civil law system have their own written constitution.
Furthermore, a written Constitution is the most supreme and highest law of the land, the law of laws, or the ground norm.
In other words, it is the law on which all other laws rest.
It has a special, higher legal status.
It is the highest rule in the legal pyramid 12 .
In common law system, the law is not produced by the legislation but it is made by courts that used their decisions as standards.
Shortly, the developed principles decided by previous court must be followed.
It means that the precedents ought to be respected (stare decisis principle).
In constitution theory that implemented by common law system, the main principle used by a state is this stare decisis principle or binding force of precedents principle.
Although the formation of constitution in common law state still refers to legislative agreements and approval; yet in its derivative regulation this principle decides the implementation of constitution in common law countries.
However, the legally binding of constitution in common law countries ought to be obeyed by its citizens comprehensively 13 .
Malaysia as a state with common law system uses constitution as the main base to form regulation.
The power of constitution on countries with civil law is located in its written law, and thus the norms are provided in law regulation.
The source of these laws 12 Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia, Malaysia: Star Publications Berhad, 2008, p. 21 13 Ibid 44 is the law that is formed by legislative.
The written constitution on countries with civil law is meant to give direction to its derivative regulation so that it can be regulated systematically with specific codification or compilation.
Adoption to the main principle becomes reflection of the main purpose of law—legal certainty.
Human Rights in Malaysia and Indonesia’s Constitution Before the amendment, UUD NRI 1945 did not explicitly mention the issue of human rights.
Human rights in constitution were mentioned generally, not in precise details.
Later on after the amendment, especially after the second amendments of UUD NRI 1945 in 2000, the provision of human rights was changed.
Prior material of human rights in UUD NRI 1945 which contained seven points of human rights provision were changed into a more detailed provision of human rights.
By ratification of the second amendment in 2000, the basic provision of human rights in UUD NRI 1945 were shown in Article 28A paragraph (1) until Article 28J paragraph (2): 1) Everyone has the right to live and to survive in his/her life.
Article 28A paragraph (1) can be divided into two parts, namely: (i) each person has the right to live; and (ii) each person has the right to survive in his/her life.
2) Everyone has the right to start a family and to have descendant through legal marriage.
Article 28B paragraph (1) can be divided into two parts, namely: (i) each person has the right to start a family through legal marriage; and (ii) every person entitles to continue his/her descendant through legal marriage; 3) Every child has the right to live, to grow, and to develop, and is entitled to protection from violence and discrimination.
The provision of Article 28B paragraph (2) contains two principles, namely: (i) Every child has the right to live, to grow, and to develop; and (ii) Every child has the right to be protected from violence and discrimination.
4) Everyone has the right to develop themselves through the fulfillment of their basic needs; and the rights to get education and to get benefits from science and technology, art and culture, in order to improve the quality of their life and for the 45 welfare of mankind.
Article 28C paragraph (1) can also be divided into several principles, namely: (i) each person has the right to develop themselves through the fulfillment of basic needs in order to improve their life quality and for the welfare of mankind; (ii) each person entitles to education in order to improve their life quality and for the welfare of mankind; (iii) each person entitles to receive the benefits of science and technology, art and culture, in order to improve their life quality and for the welfare of mankind 5) Everyone has the right to promote themselves in a struggle for their rights collectively to build their community, nation, and country; 6) Everyone has the rights of fair recognition, guarantee, protection, and legal certainty and equal treatment before the law.
The right to be recognized as a person before the law is shown in Article 28 paragraph (1) as a human right that cannot be reduced under any circumstances; 7) Everyone has the right to work, earn rewards, and receive fair and proper treatment in their employment; 8) Every citizen shall have equal opportunities in the governance; 9) Everyone has the right of citizenship; 10) Everyone is free to embrace any religion and to do worship of their belief, to choose education and teaching, employment, citizenship, choosing a place to stay in the state and to leave, and has the right to return.
Section 28E (1) can be broken down into several principles, namely: (i) each person is free to embrace any religion and to do worship of their belief; (ii) each person is free to choose education and teaching; (iii) each person is free to choose any occupation; (iv) each person is free to choose citizenship; (v) each person is free to choose a place to stay in the state, to leave, and deserve the right to return; 11) Everyone has the right to have faith of their belief, and to express their mind and attitude based on his/ her conscience; 12) Everyone has the right to have freedom of association (freedom of association), freedom of assembly (freedom of peaceful assembly), and 46 freedom of expression (freedom of expression); 13) Everyone has the right to communicate and to obtain information to develop personal and social environment, as well as the right to seek, obtain, possess, store, process, and convey information by using all available channels.
This provision can be divided into two parts, namely (i) every person has the right to communicate and obtain information in order to develop personal and social environment, (ii) any person has the right to seek, obtain, possess, store, process, and convey information by using all kinds of available channels; 14) Everyone has the right to protect him/herself, his/ her family, his/ her honor, dignity, and property under his/ her own control; as well as the right to be secured and protected from threats to do or not to do something related to their human right.
Article 28G (1) can be divided into two parts, namely: (i) any person has the right of protection for his/ herself, family, honor, dignity, and property under his control; and (ii) any person has the right to security and protection from threats to do or not to do something that is a human right; 15) Everyone has the right to be free from any torture or degrading treatment of human dignity and the right to obtain political asylum in another state.
Section 28G (2) can be divided into two, namely (i) every person has the right to be free from torture or other inhuman and degrading treatment, and (ii) any person has the right to obtain political asylum in another state; 16) Everyone has the right to live prosperously both physically and spiritually; to settle; to live in a good and healthy environment; and to get proper medical care; 17) Everyone is entitled to have access and special treatment to obtain fair opportunities and benefits to achieve equality and justice; 18) Everyone has the right of social security that allows development of him or herself as human being with dignity; 19) Everyone has the right to own private property; thus, property 47 rights should not unfairly be taken over by others; 20) Everyone has the right to live, not to be tortured, to own the freedom of thought and conscience, freedom of having faith in any religion, freedom from enslavement, recognition as a person before the law, and the right not to be prosecuted under retroactive laws.
These are the human rights that cannot be reduced under any circumstances, which later can be broken down into seven kinds of human rights, namely that every person has: (i) the right to life; (ii) the right not to be tortured; (iii) the right to freedom of thought and conscience; (iv) the right to freedom of having faith in any religion; (v) the right not to be enslaved; (vi) the right to recognition as a person before the law; and (vii) the right not to be prosecuted under retroactive laws; 21) Everyone is entitled to be free and protected from any discriminatory treatment; In order to enforce provision of the rights mentioned above, the set of laws on the obligation of others to respect other people's rights and responsibilities of nations on the enforcement of human rights: 1) The state guarantees the independence of each citizen to embrace their own religion and to worship according to his religion and his belief; 14 2) Cultural identity and traditional rights are respected in tune with the times and civilizations; 15 3) The protection, promotion, enforcement and fulfillment of human rights becomes responsibility of the state, especially the government; 16 4) To uphold and protect human rights in accordance with the principles of a democratic constitutional state, the practice of human rights are guaranteed, regulated, and set forth in the legislation; 17 5) Every person shall respect the others’ human rights in an organized society, nation, and state; 18 14 Article 29 (2) UUD 1945 15 Article 28I (3) UUD 1945 16 Article 28I (4) UUD 1945 17 Article 28I (5) UUD 1945 18 Article 28J (5) UUD 1945 48 6) In carrying out their rights and obligations, everyone shall be subject to the restrictions set forth by law.
This is solely for the purpose of protecting recognition and respect for the others’ rights and freedoms, and to meet the demands that are appropriate to the moral considerations, religious values, security, and community structure in a democratic society; 19 Moreover, in the formulation of the 1945 post-change, there are additional chapters in Section 28A to Article 28J which contain provisions related to human rights.
The provision attributed to human rights is also written in Article 29 paragraph (2), "the State guarantees the independence of each citizen to embrace their own religion and to worship according to his religion or belief it ".
This article can be said as the most qualified human rights clause; since it is inherited from the original manuscript of the 1945 Constitution.
While other provisions, such as Article 27 paragraph (1) and (2), Article 28, Article 30 paragraph (1), Article 31 paragraph (1), and Article 32 paragraph 19 Article 28J (1) UUD 1945 (1) and (2) is not a provision on human rights guarantees in its true sense, yet with regard to understanding the rights of citizens.
20 Ketentuan-1945 provisions may include basic principles as follows: 1) Everyone has the right to life; 21 2) Everyone has the right to defend life and living; 22 3) Everyone has the right to start a family through legal marriage; 23 4) Everyone has the right to continue his/ her descendant through a legal marriage; 24 5) Every child has the right to live, to grow, and to develop; 6) Every child has the right to protection from violence and discrimination; 7) Everyone has the right to develop themselves through the fulfillment of basic needs, in order to improve the quality of 20 See Senate Document 99-16, "The Constitution of the United States of America, Analysis and Interpretation", pages 956, 957, footnote 12.
See http: //www.chronon hotonthologos.com /lawnotes/pvcright.htm 21 Article 28A point 1, the right to live according to the provisions of Article 28 paragraph (1) UUD 1945 shall include categories of rights that cannot be reduced under any circumstances 22 Ibid.
Article 28A point 2 23 Article 28B (1) UUD 1945 24 Ibid.
49 life and for the welfare of mankind; 25 8) Everyone has the right to education, in order to improve the quality of life and for the welfare of mankind.
9) Everyone has the right to obtain the benefits of science and technology, arts and culture, in order to improve the quality of life and for the welfare of mankind; 10) Everyone has the right to stand up for his/ her rights collectively to build a community, nation, and country; 26 11) Everyone has the right of recognition, security, protection, legal certainty and fair treatment before the law; 27 12) Everyone has the right to work, to earn rewards, to receive fair treatment and to have decent working relationships; 28 25 Article 28C (1) UUD 1945 26 Article 28C (2) UUD 1945 27 Article 28D (1) UUD 1945 28 Article 28D (2) UUD 1945 13) Every citizen shall have equal opportunities in the government; 29 14) Everyone has the right of citizenship; 30 15) Everyone is free to embrace religion and to worship according to their religion; 31 16) Everyone is free to choose his/ her education and teaching; 32 17) Everyone is free to choose any occupation; 18) Everyone is free to choose citizenship; 19) Everyone has the right to choose a place to stay in the country, to leave it, and to return again to the state; 20) Everyone has the right of freedom to have faith, to express thoughts and attitudes, in accordance with his conscience; 33 29 Article 28D (3) UUD 1945.
However, this provision only applies to citizens of Indonesia, so it should not be understood in the context of the definition of human rights.
30 Article 28D (4) UUD 1945 31 Article 28E (1) UUD 1945 This right belonged to the human rights that can not be reduced under any circumstances 32 Ibid.
33 Article 28E (2) UUD 1945.
This provision according to Article 28 (1), including human rights 50 21) Everyone has the right of freedom of association; 34 22) Everyone has the right of freedom of peaceful assembly; 23) Everyone has the right of freedom of expression 35 ; 24) Everyone has the right to communicate and obtain information in order to develop personal and social environment; 25) Everyone has the right to seek, obtain, possess, keep, process and convey information by using all available channels; 26) Everyone has the right to defend him/ herself, family, honor, dignity, and property under his/ her control; 27) Everyone has the right to feel secured and protected from any threat or fear of to do or not to do something belongs to the human rights; groups which can not be reduced under any circumstances 34 Article 28E (3) 1945.
See also Asshiddiqie, Freedom of Association, Dissolution of Political Parties, and the Constitutional Court, Konpress, Jakarta, 2005 35 Especially with this regard to freedom of expression, according to Article 28 (1) UUD 1945 belonging to human rights can not be reduced under any circumstances 28) Everyone has the right to be free from torture 36 or other degrading treatment of human dignity; 29) Everyone has the right to obtain political asylum from another country; 30) Everyone has the right to live in physical and spiritual prosperity; 31) Everyone is entitled to settle (properly and healthy); 32) Everyone deserves a good environment and healthy; 33) Everyone has the right to obtain medical care; 37 34) Everyone is entitled to special treatment facilities and to obtain the same opportunities and benefits in order to achieve equality and justice; 38 35) Everyone has the right to social security that allows the 36 The right not to be tortured, according to Article 28 (1) UUD 1945, including human rights groups which can not be reduced under any circumstances 37 Article 28H (1) UUD 1945 38 Article 28H (2) UUD 1945.
Principles set out here is the provision of special treatment called "affirmative action" as positive discrimination.
Special treatment in the form of positive discrimination is deemed acceptable as long as intended for the purpose of achieving equality and justice as intended by this article 28H (2) UUD 1945.
Compare with Erwin Chemerinsky, Constitutional Law: Principles and Policies, Aspen Law and Business, New York, 1997, p. 585 51 development of him or herself as a human being with dignity; 39 36) Everyone has the right to have private property rights and property rights should not be taken over arbitrarily by anyone; 40 37) Everyone has the right to life; 41 38) Everyone has the right not to be tortured; 42 39) Everyone has the right to freedom of thought and conscience; 43 40) Everyone has the right to freedom of religion; 44 41) Everyone has the right not to be enslaved; 45 42) Everyone has the right to recognition as a person before the law; 46 39 Article 28H (3) UUD 1945 40 Article 28H (4) UUD 1945 41 These rights are set out in Article 28 (1) UUD 1945 as a human right that can not be reduced under any circumstances, which includes seven kinds of human rights, namely that every person has: (i) the right to life; (ii) the right not to be tortured; (iii) the right to freedom of thought and conscience; (iv) the right to freedom of religion; (v) the right not to be enslaved; (vi) the right to recognition as a person before the law; and (vii) the right not to be prosecuted based on retroactive laws 42 Ibid.
43 Ibid.
44 Ibid.
45 Ibid.
43) Everyone has the right not to be prosecuted on the basis of retroactive laws; 47 44) Everyone is entitled to be free from discriminatory treatment on any basis; 48 45) Everyone has the right to protection against discriminatory treatment of it; 49 Various provisions already made in the formulation of the 1945's are substances derived from the formulation of the Decree No.XVII / MPR / 1998 on Human Rights, which was later transformed into a matter of Law 39 Year 1999 on Human Rights.
Therefore, to understand whether it was a controlled substance in 1945, two related instruments, namely TAP MPR No.
XVII / MPR / 1998 and Law No.
39 of 1999 should 46 Ibid.
47 Ibid.
48 This provision is also referred to as the principle of "equal protection".
However, in its development, this principle also recognizes the existence of an exception in the form of "affirmative action".
In practice in the United States, this exception is recognized as the "racial classifications benefiting minorities", see Erwin Chemerinsky, op.cit., P. 585, or in the "gender classifications benefiting women", Ibid., P. 609.
"affirmative action" as this would be viewed as a human right as well that should be protected by the provisions of Article 28H (2) UUD 1945 49 Article 28I (2) UUD 1945 52 also carefully be studied.
50 Hence, in general it can be said that the provisions on human rights which has been adopted into Indonesian legal system is derived from international conventions and the universal declaration of human rights, as well as various other international legal instruments.
51 It includes ratification of accessibility for persons with disability.
Unlike Indonesia, Malaysia with its constitutional alliance owns a system to set their citizen’s rights which is contained at many articles in its constitution.
It includes Part II of the constitution of Malaysia about fundamental liberties of Malaysian citizen: Article 5 (1) No person shall be deprived of his life or personal liberty save in accordance with law.
(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.
(3) Where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be 50 See Satya Arinanto, Human Rights in Political Transition in Indonesia, FHUI HTN Study Center, Jakarta, 2003, hal.21-30 51 Read Peter Baehr, Pieter van Dijk et al, eds, Principal International Instruments on Human Rights, Yayasan Obor Indonesia, Jakarta, 2001. allowed to consult and be defended by a legal practitioner of his choice.
(4) Where a person is arrested and not released he shall without unreasonable delay, and in any case within twentyfour hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority: Provided that this Clause shall not apply to the arrest or detention of any person under the existing law relating to restricted residence, and all the provisions of this Clause shall be deemed to have been an integral part of this Article as from Merdeka Day.
(5) Clauses (3) and (4) do not apply to an enemy alien.
Article 6 (1) No person shall be held in slavery.
(2) All forms of forced labour are prohibited, but Parliament may by law provide for compulsory service for national purposes.
(3) Work incidental to the serving of a sentence of imprisonment imposed by a court of law shall not be taken to be forced labour within the meaning of this Article.
(4) Where by any written law the whole or any part of the functions of any public authority is to be carried on by another public authority, for the purpose of enabling those functions to be performed the employees of the first mentioned public authority shall be bound to serve the second mentioned public authority shall not be taken to be forced labour within the meaning of this Article, and no such employee shall be entitled to demand any right from either the first mentioned or the second 53 mentioned public authority by reason of the transfer of his employment.
Article 7 (1)No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.
(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.
Article 8 (1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of the State.
(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.
(5) This Article does not invalidate or prohibit (a) any provision regulating personal law; (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, to persons professing that religion; (c) any provision for the protection, wellbeing or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service; (d) any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election; (e) any provision of a Constitution of a State, being or corresponding to a provision in force immediately before Merdeka Day; (f) any provision restricting enlistment in the Malay Regiment to Malays.
Article 9 (1) No citizen shall be banished or excluded from the Federation.
(2) Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.
(3) So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.
54 Article 10 (1)Subject to Clauses (2), (3) and (4) (a) every citizen has the right to freedom of speech and expression; (b) all citizens have the right to assemble peaceably and without arms; (c) all citizens have the right to form associations.
(2) Parliament may by law impose (a) on the rights conferred by paragraph (a) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or of any Legislative Assembly or to provide against contempt of court, defamation, or incitement to any offence; (b) on the right conferred by paragraph (b) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, or public order; (c) on the right conferred by paragraph (c) of Clause (1), such restrictions as it deems necessary or expedient in the interest of the security of the Federation or any part thereof, public order or morality.
3) Restrictions on the right to form associations conferred by paragraph (c) of Clause (1) may also be imposed by any law relating to labour or education.
(4) In imposing restrictions in the interest of the security of the Federation or any part thereof or public order under Clause (2) (a), Parliament may pass law prohibiting the questioning of any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III, article 152, 153 or 181 otherwise than in relation to the implementation thereof as may be specified in such law.
Article 11 (1)Every person has the right to profess and practice his religion and, subject to Clause (4), to propagate it.
(2) No person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of a religion other than his own.
(3) Every religious group has the right (a) to manage its own religious affairs; (b) to establish and maintain institutions for religious or charitable purposes; and (c) to acquire and own property and hold and administer it in accordance with law.
(4) State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam (5) This Article does not authorize any act contrary to any general law relating to public order, public health or morality.
Article 12 (1)Without prejudice to the generality of Article 8, there shall be no discrimination against any citizen on the grounds only of religion, race, descent or place of birth (a) in the administration of any educational institution maintained by a public authority, and, in particular, the admission of pupils or students or the payment of fees; or (b) in providing out of the funds of a public authority financial aid for the maintenance or education of pupils or students in any educational institution (whether or not maintained by a public authority and 55 whether within or outside the Federation).
(2) Every religious group has the right to establish and maintain institutions for the education of children in its own religion, and there shall be no discrimination on the ground only of religion in any law relating to such institutions or in the administration of any such law; but it shall be lawful for the Federation or a State to establish or maintain or assist in establishing or maintaining Islamic institutions or provide or assist in providing instruction in the religion of Islam and incur such expenditure as may be necessary for the purpose.
(3) No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.
(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
Article 13 (1) No person shall be deprived of property save in accordance with law.
(2) No law shall provide for the compulsory acquisition or use of property without adequate compensation Based on various constitutions above, the constitutional rules try to incorporate the survival of every person into an inherent condition in the constitution of both Indonesia and Malaysia.
Thus, the regulation or custom products which incorporated in the constitution of a State should be based on the substance of its constitutional rights.
Consequently, Indonesia and Malaysia have “accessibility for persons with disability” as fundamental regulations.
The setting of Indonesian and Malaysian constitution always has purpose.
Accordingly, the existing arrangements in each of these countries must be in conformity to the purpose of the constitution.
B.
Disability and The Implementation of Convention for The People with Disabilities’ Ratification in Indonesia and Malaysia Obligation of the State to Submit International Law Beside Constitution—of what so called the highest national law, there is international law that legally binds the state within the context of international relationship with other states.
Among many aspects of international relationship, there is also regulation that binding state internationally.
International law has different source of law other than national source of law, which is divided into written and unwritten source of law.
One of the written sources of law is international agreements.
In order to generate written international law to be applied nationally in 56 a state, there is a special mechanism namely ratification 52 .
Indonesia and Malaysia are states that internationally ratified some international agreements and incorporate it into a force in national law.
Related to the area of human rights for persons with disabilities, these two states have ratified the Convention on the Rights of Person with Disabilities.
Indonesia ratified it through Law No.
19 Year 2011 on October, 18th 2011; while Malaysia ratified it through Person with Disabilities Act 2008 on July, 7th 2008.
Generally, the CRPD that is generated by Resolution No.
1/61/106 53 contains the rights of persons with disabilities and regulate the steps to ensure the implementation of the convention.
CRPD is the first international human rights instrument that comprehensively talks and gives attention to the needs of any person with disabilities.
However, the arrangement 52 Ratification is the adoption of an act or contract entered into in behalf of the one ratifying by one who had no previous authority to represent the other; in other word, ratifying is the doing of the act or the making of the contract, further about ratification Ernest W. Huffcut, Elements of the Law of Agency, Beard Books, 1999 page 29 53 Udiyo Basuki, Perlindungan HAM dalam Negara Hukum Indonesia: Studi Ratifikasi Konvensi Hak-hak Disabilitas (Convention on the Rights of Person with Disabilities), SOSIO-RELIGIA, Vol.
10, No.
1 Februari 2012, page 18 of this instrument is also affected by other international law instruments on general human rights.
Indonesia and Malaysia’s action to ratify and enter CRPD into national law instrument in the law structure of Indonesia and the act in Malaysia brought logical consequence.
These two states must implement the material of ratification that is put into practice on some national law instruments.
The ratification in these two countries is different.
It is based on the specific needs of each country.
The following table is the comparison of the result of CRPD ratification in Indonesia and Malaysia: Comparativ e Aspects Indonesia 54 Malaysia 55 General Forms of the Act in each country Comprehensivel y ratify this aspect.
Hence, Law No.
19 Year 2011 only contains three articles to declare that Indonesia have ratified the convention.
The explanation of the law generally explains about the main points of convention.
In OKU Act 2008, Malaysia regulates detail of implementatio n on CRPD ratification such as registration, protection, rehabilitation, etc.
Main points The Preliminary 54 Undang-Undang No.
19 Tahun 2011 tentang Pengesahan Konvensi Hak-hak Penyandang Disabilitas 55 Person with Disabilities Act 2008 57 of the act 56 recognition of human rights for persons with disabilities (general description) Statement to ratify the convention.
Affirmation on the enactment of the Law on ratification convention.
The principal contents of the convention: 1) the opening; 2) the purpose; 3) The obligation of the state; 4) the rights of persons with disabilities; 5) The national implementati on and monitoring; 6) State party report and the role of monitoring committees convention rights of persons with disabilities.
National Council for Persons with Disabilities Appointment of general registrar and registration for persons with disabilities Promotion and development of the quality of life and wellbeing of persons with disabilities (about accessibility, habilitation and rehabilitation , health, protection from risky situations and humanitarian emergencies.
General Main points of the act 57 The recognition of human rights for persons with 56 The author compares the list of existing chapters on each of the CRPD ratification of legal instruments in Indonesia and Malaysia.
57 The author compares the list of existing chapters on each of the CRPD ratification of legal instruments in Indonesia and Malaysia.
disabilities (general description).
Statement to ratify the convention.
Affirmation on the enactment of the Law on ratification convention.
The principal contents of the convention: 1) the opening; 2) the purpose; 3) The obligation of the state; 4) the rights of persons with disabilities; 5) The national implementation and monitoring; 6) State party report and the role of monitoring committees convention rights of persons with disabilities Main points of the act 58 The recognition of human rights for persons with disabilities (general description).
Statement to ratify the convention.
Affirmation on the enactment of the Law on ratification convention.
The principal contents of the convention: 1) 58 The author compares the list of existing chapters on each of the CRPD ratification of legal instruments in Indonesia and Malaysia.
58 the opening; 2) the purpose; 3) The obligation of the state; 4) the rights of persons with disabilities; 5) The national implementation and monitoring; 6) State party report and the role of monitoring committees convention rights of persons with disabilities.
Das Sein and Das Sollen with Disabilities in Indonesia and Malaysia after the ratification CPRD (Law on ratification comparison table CPRD Indonesia and Malaysia) Indonesia, prior to the ratification of CRPD, has no arrangement of the Act partially recognizes rights of persons with disabilities from various aspects.
However, Indonesia has Law No.
4 of 1997 on Persons with Disabilities.
Based on the explanation of the Law No.
19 of 2011 on the Ratification of the Convention on the Rights of Persons with Disabilities, there are several laws and regulations in Indonesia regulating the rights of persons with disabilities, namely: a.
Law No.
4 of 1979 on Child Welfare; b.
Law No.
4 of 1997 on Persons with Disabilities; c. Law Number 39 Year 1999 on Human Rights; d. Law No.
23 of 2002 on Child Protection; e. Law No.
28 of 2002 on Building; f. Law Number 13 Year 2003 concerning Manpower g. Law Number 20 Year 2003 on National Education System; h. Law No.
3 of 2005 on National Sports System; i.
Law No.
23 Year 2007 on Railways j.
Law No.
17 of 2008 on Voyage; k. Law No.
1 of 2009 on Flight; l. Law Number 22 Year 2009 on Traffic and Transportation; m. Law Number 25 of 2009 on Public Service; n. Law Number 36 of 2009 on Health; and o.
Act No.
13 of 2011 on Poverty Management The recognition example of protection on the rights of persons with disabilities in the law through legislation in Indonesia is the Act No.
39 Year 1999 on Human Rights; particularly article 41, 42, and 54 which ensure accessibility for persons with disabilities: Article 41: Every citizen has the right to social security that is 59 needed for a decent life and to personal development as a whole.
Every person with disability (disabilities), the elderly, pregnant women and children, are entitled to special treatment facilities; and Article 42: Every citizen who is elderly, physically handicapped, or mentally disabled are entitled to care, education and training, and special assistance at the expense of the state, to ensure decent life and human dignity.
Article 54: Every child who is physically or mentally disabled is entitled to care, education and training, and special assistance at the expense of the state, to ensure decent life and human dignity and to boost confidence and skill to be able to participate in life within community, nation, and state.
In addition to regulation at the level of Law concerning rights of persons with disabilities, some local governments initiated supporting provision of accessibility for persons with disabilities.
For example, local government of Sleman has Regulation No.
11 Year 2002 on Provision of Facilities in Public Buildings and Environment Disability and local government of Surakarta has Regulation No.
8 Year 1988.
59 Furthermore, Irwanto et al provided tabulation on regulations of persons with disabilities in Indonesia.
No Fou ndat ion Difable person’ s rights Lex Speci alis Require mentof Lex Speciali s Lex Inferi ori Requir ement of Lex Inferio ri 1 Arti cle 6 Act No.
4 Year 199 7 Educati on in every school track, type, and level of educatio n; Law No.
20 Year 2003 on Natio nal Educ ation Syste m Impleme ntation of special educatio n for citizens with physical and mental disorder s. Gover nment Regula tion No.
10 Year 2010 Accept ance of learner s on all levels of educati on without discrim ination both physica lly and mentall y. Ranpe rda Penya ndang Cacat (Bang ka Belitu ng) Imple mentati on on various educati on and skills for people with disabili ties.
2 Arti cle 6 Act No.
4 Year 199 7 Employ ment and decent living based on type and degree of disabilit y, educatio n, and skill; Law No.
13 Year 2003 on Empl oyme nt Appropr iate protectio n based on disabilit y, equality, and job training.
Gover nment Regula tion No.
43 Year 1998 1% quota in jobs.
3 Arti cle 6 Act No.
4 Year 199 7 Fair treatmen t to have role in state develop ment and enjoy its 59 Ferry Firdaus and Fajar Iswahyudi, Public Services Accessibility for Person with Special Needs, 60 results; 4 Arti cle 6 Act No.
4 Year 199 7 Accessi bility to support indepen dence Law No.
28 Year 2002 on Build ing Mandato ry except housing accessibi lity Gover nment Regula tion No.
43 Year 1998 Provisi on of public facilitie s and friendl y infrastr ucture for persons with disabili ties Law No.
28 Year 2009 of Traffi c and Trans portat ion Driving License type D and the provisio n of accessibi lity in public transport Gover nment Regula tion No.
43 Year 1993 Giving priority to the disable d vehicle Local Gover nment Regula tion No.
10 Year 2009 on Person With Disabi lities (Band ung) Adjust ment on public facilitie s Local Gover nment Regula tion No.
6 Year 2009 on Person With Disabi lities (Suko harjo) Access ibility of Person With Disabil ities Gover nor’s Regula tion No.
66 Year 1981 Adjust ment of public facilitie s and infrastr ucture in Jakarta Gover nor’s Regula tion No.
Adjust ment of public facilitie s and 140 Year 2001 infrastr ucture in Jakarta 5 Arti cle 6 of Act No.
4 Year 199 7 Rehabili tation, social support, and mainten ance of social welfare; and Law No.
11 Year 2009 on Socia l Welf are Disabled people and those with social dysfunct ion.
Gover nment Regula tion No.
43 Year 1998 Social Welfar e for Person With Disabil ities Law No.
36 of 2009 on Healt h The right to the provisio n of health facilities and governm ent obligatio ns 6 Arti cle 6 of Act No.
4 of 199 7 Fair rights to develop talents, abilities, and social life, especiall y for disabled child in family and society.
Law No.
1 of 1974 on Marri age Divorce can be done in case of couples with disabilit y Gover nment Regula tion No.
9 Tahun 1975 ivorce can be done in case of couples with disabili ty 7 Act No.
39 Year 199 9 of Hu man Righ ts Right to participa te in politics and lawmaking.
Law No.
10 Year 2008 of Electi on Require ments of proficien t speaking , writing, and reading Bahasa Indonesi a. Comm ission Regula tion No.
13 of 2009 on Guidel ines for the Imple mentat ion of Techni cal Collec tion and counti ng.
Provisi on of aids for the blinds on Electio n. Recognition on the rights of persons with disabilities in Indonesian national legal 61 instruments is not enough to guarantee real actions.
Various discriminatory treatments related to accessibility of public facilities occur in daily life.
In fact, existing public facilities in Indonesia are not enough to support the activities of persons with disabilities.
In addition, publics’ negative perspective on limitations of persons with disabilities affects their confidence.
Statistic mentions that around 1.48 million people or 6.7% of Indonesia's population are living in rural areas.
60 Based on this data, it can be concluded that the percentage of population of persons with disabilities in urban areas is also great.
However, Indonesia has no proper data collection system.
The available online system covering all statistics cannot provide easy access to data of persons with disabilities.
Thus, it is hard to draw conclusion on actual number of persons with disabilities in Indonesia; to know whether it is much larger than those recorded by the statistical agency or other institutions—or not.
61 Central Bureau of Statistics of the 60 Ibid 61 Since 1980 BPS have included disability questions in the census or survey, but in the use of the concept definition effort, the form of questions and answers, as well as the scope of the type of Questions are not fully in accordance to the mandate of CPRD and Recommendations of Washington Group, more see http: //www.bps.go.id /aboutus.php?
information = 91 Republic of Indonesia in 2014 committed and established cooperation with UNFPAUNICEF-WHO to provide new data collection instrument for persons with disabilities.
It was introduced in the Launching of Instrument for Disability Survey.
62 Establishment of a new instrument for persons with disabilities in data collection initiated by government through Central Bureau of Statistics should be appreciated as an initial effort to fulfill the rights of persons with disabilities in Indonesia.
Data accuracy and data collection is therefore necessary, not only to know the exact number of Indonesian citizens with disabilities, but also as a reliable reference to determine appropriate policies and regulations in order to fulfill the rights of persons with disabilities.
There are some practical aspects need to be considered and addressed in the fulfillment of the rights of persons with disabilities which is mandated by constitution and national legal instruments.
Indonesian presidential system to some extent affects system in fulfilling the rights of citizens with disabilities.
The authority and duty to protect and to fulfill the rights of persons with disabilities is entrusted to 62 Ibid.
62 particular agency, such as ministry.
When president is substituted, the consequences include alternation of governmental cabinet; hence, the responsible agencies including the one who responsible to fulfill the rights of persons with disabilities are also changed.
Later on, these changes affect the survival of the fulfillment of the rights of persons with disabilities.
For example, one affected area is the substantive funding for programs to fulfill the rights of persons with disabilities.
Didi Tarsidi in Ferry Firdaus and Fajar Wahyudi shares some architectural barriers faced by persons with disabilities.
No.
Category Obstacle 1 Physical Disability  Changes in surface elevation level for example staircase or trench.
 The absence of linkage between road and sidewalk ramps.
 Insufficient space for knees under table or sink.
 Insufficient space to turn; too narrow opening doors and corridors.
 Bad road surface (for example: because of rocks) obstructs wheel chair movements.
 Too heavy door and difficult to open.
 Too high located buttons.
 Too high stairs.
 Too slippery floors.
 Moving quickly through the turnstiles or doors that close automatically.
 The elevator doors are closing too fast.
 The stairs run without a handle that moves too fast.
2.
Sensory Disability Blind:  The absence of directions or characteristics that can be heard or seen by people with limited vision that tells the number of floors in high-rise buildings.
 Small obstacles such as opened windows or mounted billboards on pedestrian.
 Blinding light or too dim  Elevator without tactual instructions (palpable) to distinguish buttons, or voice prompts to indicate floor numbers.
Deaf: People with hearing impairment may find difficulties in understanding announcement over loudspeaker at airport or public transportation terminal.
They have difficulty in reading lips in auditorium with poor lighting and they may also not be able to hear alarm sound.
3 Intellectual Disability Persons with intellectual disability may find difficulties in finding path in new environment without clear directions.
63 In Malaysia, efforts to fulfill the rights of persons with disabilities are mandated by constitution; furthermore, concrete specific deeds can been seen for example from data collection system for Persons with Disabilities, provision of facilities to support the activities of persons with disabilities, or specialization budget for Persons with Disabilities in the agenda of Malaysian annual budgeting.
In 2015, the designation of Malaysian budget for Persons with Disabilities is amounted RM 1.2 billion.
This fund is shared with poor families, childhood, and senior citizen.
Each of the persons with disabilities is given financial assistance as much as RM350 and for those who work for unemployed persons with disabilities is given RM200.
This financial assistance planned to be distributed to 110,000 persons with disabilities.
Regulation on the rights of persons with disabilities in Malaysia is not as varied in Indonesia, but these regulations provide ample details on practical service to the community of persons with disabilities in Malaysia.
The deed of OKU (Malaysian term Orang Kurang Upaya or persons with disabilities) in 2008 set about OKU registration.
This registration is meant for data collection and various facilities that can be obtained by persons with disabilities in public infrastructure.
OKU who register will get special OKU card.
In terms of public facilities, based on author's observations in Malaysia, the kingdom and the federal government put serious concern to the accessibility of public facilities for persons with disabilities.
Great attention is shown through the development of infrastructure that is "friendly" for persons with disabilities.
For example, bus ramps are designed to be parallel to curb so that persons with disabilities’ wheelchair can fit easily into bus; wheelchair access ramps stairs in open air facilities; special public bathrooms for persons with disabilities equipped with ramps and stairs, etc.
C. Alternatives for Regulation of Persons with Disabilities in Indonesia Prior to the author’s explanation, there are so many things must be considered to fulfill the mandate of constitution and national law instruments.
It is also important to learn lesson from the comparison with Malaysian regulation.
Therefore, the author tries to provide alternative for regulations to 64 fulfill the rights of person with disabilities.
Urgency of protection and fulfillment of the rights of person with disabilities should be among the first priorities in the structure of the state.
This is related to the fact that number of person with disabilities in Indonesia is increasing without proper service systems to serve the basic needs of person with disabilities.
According to WHO data in 2013, the number of person with disabilities in the world in 2012 is about 15.6% from total world population or more than one billion people 63 .
It is known that Indonesian population now is around 247 million people; thus, by using WHO percentage it means that the total of person with disabilities in Indonesia is around 37.091.000 persons.
World Bank Data mentioned that about 80% of person with disabilities that living in developing countries including Indonesia have susceptibility, backwardness, and living below the poverty line.
Moreover, according to UN ESCAP Notes (2009) in Apeace (2012), around 1.38% of Indonesians are persons with disabilities (about 3,063 persons).
This number is the answer from 63 Pozzan E. Disability and International Standards.
Jakarta: ILO Jakarta.
2013. page 23 the government in UN-ESCAP survey in 2009 (from Susenas 2009) 64 .
The main trigger of marginalization and discrimination of persons with disabilities—according to Saharuddin Daming in his paper 2013—is specifically originated from institutionalization of stereotypical attitudes, behaviors, and prejudices.
It starts from general public, intellectual group, even power holders 65 .
In accordance to this issue, it is necessary to form special regulation for persons with disabilities, which hopefully in the future can be applied in all region of Indonesia and become a part of Indonesian regulation hierarchy.
Local regulation is, therefore, included in the hierarchy of national law instrument.
Local regulations are divided into two parts, namely Province Local Regulation and District Local Regulation related to the level of administrative region.
Local regulations are formed by Local House of People’s Representatives along with the agreement of the Head of District.
Article 14 of Act No.
12 Year 2011 mentioned that Provincial Regulation and Regency/ City Regulation containing substance related to 64 Ibid, page 24 65 Saharuddin Daming ,.
Marjinalisasi Hak Politik Penyandang Disabilitas.
Penerbit Komnas HAM, Jakarta.
2012 65 the implementation of regional autonomy and duty of assistance and to accommodate specific local conditions and/ or further elaboration of higher legislation.
This Act gives an opportunity for the realization of the regulation of person with disabilities.
Prior to the explanation about holding requirement of programs to support the fulfillment of the rights of persons with disabilities and Indonesian’s characteristic; the author recommends an alternative to set standard points to be contained in regulation of persons with disabilities in each region.
It can be understood as a more specific explanation from the Act No.
19 Year 2011 on Convention on the Rights of Person with Disabilities.
Local regulation that is developed by each province or district/city must support accessibility standards for persons with disabilities.
The points of standardization to be put into consideration by local governments in establishing regulations concerning persons with disabilities are: 1.
Preparation of comprehensive and integrated regulation in autonomous region.
In designing local regulation, the executive as executor and the legislative as decision maker need to share their idea.
The fulfillment of the rights of persons with disabilities which are governed by local regulations must be interpreted and implemented in a concrete way by the executive.
Substantive local regulations should prioritize proper treatment for persons with disabilities.
The paradigm of equality is automatically attached to each of the regions as the subject of law and guaranteed by the Constitution; therefore, it is ineffective to set the needs of basic human rights in local regulation.
2.
The fulfillment of the rights for persons with disabilities is in every aspects of life of the state.
Thus, local regulations to be made should refer to other regulations comprehensively.
Law No.
19 Year 2011 as the basic and main regulation cannot stand alone.
The legal basis to design local regulations must also consider the general needs of persons with disabilities in Law No.
4 Year 1997 on Person With Disabilities, Law No.
39 Year 1999 on Human Rights, Law No.
23 Year 2002 on Children Protection, Law No.
36 Year 2009 on Medical, Law No.
25 Year 2009 on Public Services, and Law No.
11 Year 2009 on Social Welfare.
66 3.
In accordance to Malaysian reference on the fulfillment of the rights of person with disabilities, the author’s recommends specific regulation in local regulation on some points: a.
Budget Malaysian government has a program to provide financial support to empower and maintain citizen who needs special treatment like persons with disabilities.
Learning from this reference, local government of Indonesia should set specific amount of budget to be used in local regulation, or at least to set a budget for the empowerment of persons with disabilities as one the priority.
b. Information/Data System To help local government in setting the budget for the empowerment of persons with disabilities, each region should have reliable data on number of person with disabilities.
KAD OKU in Malaysia can be a reference for systematic data of persons with disabilities.
With this special card, government may access needed information on condition of person with disabilities.
Moreover, the holder of this special card can get special treatment to access public facility.
Every region is expected to have special regulation on specific mechanism of data collection, information system, and institution that responsible in collecting and processing the data.
c. Public Facilities The content of Local Regulation should concern with obligations to provide proper access to facilitate persons with disabilities in public facilities.
To depict public facilities accessible for persons with disabilities, the author provided some pictures of Malaysian public facilities to be used as reference.
Malaysia is one step ahead in providing proper facilities for persons with disabilities.
This is because the local regulation that regulates public facilities supports the needs of person with disabilities like local regulation about building standard, public transportation, or accessibility in education.
Consequently, local 67 government needs to adjust local regulation to fulfill the rights of person with disabilities.
IV.
CONCLUSION Basic Disabilities Law on Law No.
4 of 1997 on Persons with Disabilities supported by the Law No.
19 of 2011 on Ratification of the Convention on the Rights of Persons with Disabilities, have become a standard to set equality of human rights, embodied ideal norms, and concept empowered by the state and owned by the people of Indonesia.
However, the fulfillment of the law is not easy.
Although supported by legal standard, justice for persons with disabilities is still uncertain.
Equality for persons with disabilities becomes part of the dynamics of law in Indonesia and sadly, many people have to be victims.
Many factors contributed to the problems, including the role of government on all policies and regulation, current facilities, and limited knowledge about the regulation.
To build Indonesia as a prosperous and fair country especially for persons with disabilities, synergic struggle and communication of all parties are needed.
When the strategic outposts experience similar problems, these ideal conditions will certainly hard to be achieved.
So far, Indonesian problems are so complex—the effort to provide equality for citizen’s rights is worsened by poor systems.
REFERENCES Book P.J.
Suwarno, Pancasila Indonesian National Culture, Jakarta, Canisius, 1993 Shad Saleem Faruqi, Document of Destiny: The Constitution of the Federation of Malaysia, Malaysia: Star Publications Berhad, 2008 Erwin Chemerinsky, Constitutional Law: Principles and Policies, Aspen Law and Business, New York, 1997 Asshiddiqie, Freedom of Association, Dissolution of Political Parties, and the Constitutional Court, Konpress, Jakarta, 2005 Satya Arinanto, Human Rights in Political Transition in Indonesia, FHUI HTN Study Center, Jakarta, 2003 Read Peter Baehr, Pieter van Dijk et al, eds, Principal International Instruments on Human Rights, Yayasan Obor Indonesia, Jakarta, 2001 Ernest W. Huffcut, Elements of the Law of Agency, Beard Books, 1999 Udiyo Basuki, Perlindungan HAM dalam Negara Hukum Indonesia: Studi Ratifikasi Konvensi Hak-hak Disabilitas (Convention on the Rights of Person with Disabilities), SOSIO-RELIGIA, Vol.
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1 Februari 2012 Pozzan E. Disability and International Standards.
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2012 Journal and Online Article Eva Rahim Kasim, Chronological Efforts Ratification The Convention on the Rights of Persons With Disabilities in Indonesia, paper presented at Seminar Day of CRPD and its’ Implementation in Form Inclusive Local Development Policy in West Sumatra, Padang, February 4, 2013. https: // www.academia.edu/4728310/KRON OLOGIS_UPAYA_RATIFIKASI_T HE_CONVENTION_ON_THE_RIG HTS_OF_PERSONS_WITH_DISA BILITIES_KONVENSI_HAKHAK_PENYANDANG_DISABILIT AS_DI_INDONESIA_Oleh_Eva_Ra hmi_Kasim Rebecca Wallace, International Human Rights Text and Materials, London: Sweet & Maxwell, 1997 Social Ministry of Australia, Planning assessment urgent cases http://www.ndis.gov.au /sites/default/files/documents/og_pla nning_assessment _urgent_cases.pdf Abdul Munawar, Malaysia dan Australia, Surga bagi Kaum Disabilitas, http://health.liputan6 .com/read/771028/malaysia-danaustralia-surga-bagi-kaumdisabilitas.
ILO,Inklusi Penyandang Disabilitas di Indonesia.
http://www.ilo.org/wcmsp5/groups /public/---asia/---ro-bangkok/---ilojakarta/documents/publication/wcms _233426.pdf Iffah Nur Arifah, Kesadaran Hukum Difabel Indonesia Rendah, http://www.radioaustralia.net.au/indo nesian/2014-05-01/kesadaranhukum-difabel-indonesiarendah/1303744 Persepsi, Ribuan Orang Difabel di Klaten Tak Dapat Jaminan Sosial,http://www.persepsiklaten.org/sosial/ribuan-orangdifabel-di-klaten-tak-dapat-jaminansosial, Convention and National Law International Convention on The Rights of Persons with Disabilities Constitution 1945 Law Number 39 Year 1999 of Human Rights Law Number 19 Year 2011 of Ratification of Convention on The Rights of Persons with Disabilities http://health.liputan6/ http://www.ilo.org/wcmsp5/groups
DOI: http://dx.doi.org/10.21776/ub.blj.2020.007.02.01 | 141 Gender Violence, Gender Justice and Gender-Based Laws: An Analysis of Pattern and Policies in India and Indonesia Dr. Neelam Tyagi Campus Law Centre, Faculty of Law, University Of Delhi, New Delhi, India Email: n.neelamtyagi@gmail.com; ntyagi@law.du.ac.in Submitted : 2020-08-31 | Accepted : 2020-09-27 Abstract: If we look at the status of women in a particular society, we can get a fair idea about its social organization and standard.
Violence against women is a challenge against the right to equality and an extreme form of violation of human rights.
From ancient times to the modern era, women face discrimination, exploitation, and violence in every walk of their life, and this phenomenon is prevalent across all borders.
Every civilized society tries to protect its members both in public and private spaces with the help of a set of laws and rights.
Hosts of laws and beneficial legislation enacted to ameliorate women’s condition have failed to achieve the desired purpose due several factors.
Thus mere enactment of laws will not serve the desired purpose until they are effectively implemented and assertively claimed by women.
This paper presents a comparative analysis of the various forms of gender violence and the status of the gender-based laws that are enacted for achieving gender justice in India and Indonesia.
It analyses the extent to which these women favoring laws of both countries prevent the frequency of the occurrence of gender violence and some recommendations for bringing about changes to this situation.
Keywords: gender justice; gender violence; gender-based laws; poor implementation of laws and policies; right to equality and non-discrimination in india and indonesia.
I.
INTRODUCTION Violence against women1 is an omnipresent phenomenon and both India and Indonesia are no exceptions.
Violence against women is discriminatory, hampers a women’s capacity to enjoy their legal 1 Violence against women is “any act of genderbased violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, rights, fundamental freedoms, and violative of their numerous human rights.
Among the wide arrays of violence directed against women some are extensively discussed, whereas others do not receive enough coercion or arbitrary deprivation of liberty, whether occurring in public or private life.” Source: The Declaration on the Elimination of Violence against Women 1993. mailto:n.neelamtyagi@gmail.com mailto:ntyagi@law.du.ac.in Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 142 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… attention (like female genital mutilation, poor political participation of women, sex tourism etc.
).2 If we look at the women in Indonesia, they are not regarded as weak but possessing extraordinary power.
3 The efforts towards women’s emancipation began in the 19th century when the demand for rights and education increased in Indonesia.4 From 1955 onwards progress is evident in terms of women’s empowerment in education, gender equality, and other segments.5 Women in Indonesia undertake economic activities, run businesses, and play essential roles both inside and outside the family.
Some traditional matriarchal and matrilineal society grants inheritance of property and family names from mothers to their daughters.6 But issues like child marriage, domestic violence, trafficking, sexual abuse persists.
A survey, commissioned by the Women’s Empowerment and Child Protection Ministry and conducted by the Central Statistics Agency (BPS), concluded that one in three women in Indonesia suffered violence in 2 Meiwita Budiharsana, Female circumcision in Indonesia: extent, implications and possible interventions to uphold women’s health rights, Population Council, Jakarta (2004) < https://knowledgecommons.popcouncil.org/cgi/vi ewcontent.cgi?article=1033&context=department s_sbsr-rh> Accessed: 27-07-2019.
3 Luh Ketut Suryani, ‘Balinese Women in a Changing Society’ (2004) 32, The Journal of the American Academy of Psychoanalysis and Dynamic Psychiatry 217.
4 Robinson, Kathryn May and Bessell Sharon, ‘Women in Indonesia: Gender, Equity and Development’, (2002) 8 Dari Indonesia assessment series, Institute of Southeast Asian Studies, 5.
5 Global Network for Advanced Management, what are the Obstacles to Women in the Global Workforce?
<https://globalnetwork.io/perspectives/2017/03/w hat-are-obstacles-women-global-workforce> Accessed: 28-06-2020.
6 Sankari Rathina, ‘World's largest matrilineal society’, (2016) (22 September)< http://www.bbc.com/travel/story/20 their lifetime.7 Above all, the abusive practice of “virginity testing”8 and genital mutilation having no medical benefits continues.9 Similarly, the traditional Indian religious communities, especially the Hindu ancient texts like Upanishads, Sastras, and Puranas respect and treat women as God.10 However, in modern times women are subjected to abuse and denial of their fundamental rights.
The ancient Indian communities treated both the sexes with parity and followed liberal practices in every sphere of their life.11 All this gradually changed and numerous forms of atrocities directed against women originated from foreign invasions.
From the 19th century, the feminist movements stood against these wrongs and focused on women's crucial areas.
They stressed educating Indian women, demanded property rights for widows, and prevented discrimination and inequality in its every form.12 Today, some forty-one women favoring laws are passed in India that safeguards women from diverse 160916-worlds-largest-matrilineal-society> Accessed: 23-06-2020.
7 Margareth S. Aritonang ‘Survey finds widespread violence against women’, The Jakarta Post Jakarta, (2017) (March 31) <https://www.thejakartapost.com/news/2017/03/3 1/survey-finds-widespread-violence-againstwomen.html > Accessed: 29-10-2020.
8 Human Rights Watch, Indonesia Events of 2018 <https://www.hrw.org/worldreport/2019/country-chapters/indonesia> Accessed: 30-06-2020.
9 Article 1 of the Ministry of Health Regulation No.6/2014.
10 McDaniel, Offering Flowers, Feeding Skulls: Popular Goddess Worship in West Bengal, (Oxford University Press, 2004) 90.
11 Julia Leslie, The Perfect Wife: The Orthodox Hindu Women (Oxford University Press, 1989) 320.
12 However, the Women Reservation Bill 2010, that reserves 33% seats for women in the Parliament as well as State assemblies is yet to become an Act in India.
https://knowledgecommons.popcouncil.org/cgi/viewcontent.cgi?article=1033&context=departments_sbsr-rh https://knowledgecommons.popcouncil.org/cgi/viewcontent.cgi?article=1033&context=departments_sbsr-rh https://knowledgecommons.popcouncil.org/cgi/viewcontent.cgi?article=1033&context=departments_sbsr-rh https://globalnetwork.io/perspectives/2017/03/what-are-obstacles-women-global-workforce https://globalnetwork.io/perspectives/2017/03/what-are-obstacles-women-global-workforce http://www.bbc.com/travel/story/20160916-worlds-largest-matrilineal-society http://www.bbc.com/travel/story/20160916-worlds-largest-matrilineal-society https://www.thejakartapost.com/news/2017/03/31/survey-finds-widespread-violence-against-women.html https://www.thejakartapost.com/news/2017/03/31/survey-finds-widespread-violence-against-women.html https://www.thejakartapost.com/news/2017/03/31/survey-finds-widespread-violence-against-women.html https://www.hrw.org/world-report/2019/country-chapters/indonesia https://www.hrw.org/world-report/2019/country-chapters/indonesia Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 143 forms of violence.
These provisions have a limited impact on the patriarchal traditions and practices that continue to rule Indian society.
India is still a county dominated by males, and women are regarded as subordinate or inferior.
Women are subjected to various forms of abuse and brutalities in rural and urban settings.
If we look at the statistics, the frequency of crimes against women is continuously rising in public and private spaces.13 Rape, torture, assault, sexual harassment, eve-teasing, stalking is recurrent.
Every one woman out of three is beaten, coerced into sex, or has suffered domestic violence at least once in her lifetime.14 According to a current study conducted by a Singapore-based research company Value Champion, both India and Indonesia ranked to be the least safe for women out of fourteen countries.
Indonesia is ranked as the second-most dangerous place for women in the Asia Pacific region (ranked 13th), with India scoring the lowest in the list (ranked 14th).
The study cited poor access to health care, lax laws regarding women’s safety, and overall gender inequality as the reasons behind Indonesia and India featuring at the bottom of the list.15 Apart from this study, various other research studies and reports show the presence of deeply patriarchal attitudes entrenched in these two countries leading to women fearing their well-being.
Both countries share many similarities in 13 National Crime Record Bureau, Crime in India of Ministry of Home Affairs, the National Crime Record Bureau statistics prove that women face a vast number of issues concerning crime against them.
14 Violence against women, In: Women in South East Asia: A health profile, (New Delhi, WHO regional office for South East Asia, 2000) 147-60.
15 Devina Heriyanto, ‘Indonesia ranked second-most dangerous place for women in Asia Pacific: Study’ The Jakarta Post, Jakarta (March 6, 2019) < https://www.thejakartapost.com/news/2019/03/ terms of being populated by people from varied cultural backgrounds, multiple languages, ethnicities, cultural customs, and religions.16 In the context of women, they face marginalization in both these countries.
They are generally socialized to be submissive and relegated to secondary roles and subordinate status due to their respective patriarchal cultures.
This makes them susceptible to inadequate bargaining power in their relationships and vulnerable to different types of discrimination.
They have fewer rights and are married off even before they attain sufficient maturity.
Both countries have framed numerous laws that promote women's interest.
However they still face issues about their safety, health care, and opportunities leading to their low ranking on different parameters related to gender justice.
With this backdrop of the prevalence of contentious issues related to women in both the countries, a need was felt to study the effect and impact of granting various constitutional, legal, and human rights to women in both these countries.
There is perhaps the first paper that presents a detailed comparative analysis of all the gender-based violence directed against women and the status of gender justice achieved so far in India and Indonesia.
This research paper's inspiration is to draw a parallel between both countries that share a historical connection.
It is necessary to assess the law, policies, and 06/indonesia-ranked-second-most-dangerousplace-for-women-in-asia-pacific-study.html> Accessed: 29-10-2020.
16 Pallavi Aiyar, ‘Spot the similarities: unity in diversity in India and Indonesia’, August 29, 2017, < https://www.thehindu.com/opinion/op-ed/spotthe-similarities/article19576750.ece> Accessed: 29-10-2020.
See 2010 Sensus penduduk (Statistics on the population of Indonesia) and the 2011 Census of India.
https://www.thejakartapost.com/news/2019/03/06/indonesia-ranked-second-most-dangerous-place-for-women-in-asia-pacific-study.html https://www.thejakartapost.com/news/2019/03/06/indonesia-ranked-second-most-dangerous-place-for-women-in-asia-pacific-study.html https://www.thejakartapost.com/news/2019/03/06/indonesia-ranked-second-most-dangerous-place-for-women-in-asia-pacific-study.html https://www.thehindu.com/opinion/op-ed/spot-the-similarities/article19576750.ece https://www.thehindu.com/opinion/op-ed/spot-the-similarities/article19576750.ece Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 144 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… practices followed within these two jurisdictions to undertake affirmative steps towards alleviating women’s conditions in both these countries.
II.
LEGAL MATERIALS AND METHODS This paper embarks on comparative analysis and evaluation of the role, status, and position of women in these two countries, both in public and private spaces.
The paper generalizes the interconnection between gender violence, gender injustice, and the role of law in promoting gender equality.
The method and material used for this research is an amalgamation of various sources and data.
Following the doctrinal research method, it revisits the existing legal material, judicial pronouncements, statistical data of national government agencies, and internationally recognized organizations.
With assistance from these sources, the paper explains how women still face discrimination and inequality in almost all quarters.
The material derived from the mentioned sources will be qualitatively and quantitatively evaluated to know about the current violence and inequality against women and the extent to which women lag in their economic, social, and political achievements.
It emphasizes how the enacted laws, various legal and policy measures undertaken for raising the women’s status in these two countries, are inadequate in tackling gender violence.
With a comparative analysis of the degree of the pervasiveness of gender violence in both India and Indonesia, the paper summarizes and suggests the contentious areas that require further governmental and policy deliberations and interventions.
The paper proposes that though in contemporary times women are provided several rights, remedies and opportunities to voice their opinion against the deep-rooted traditions, social restrictions and gender violence through gender-based laws but much remains to be done to attain inclusive gender justice.
III.
RESULT AND DISCUSSION Gender Justice Concerns under Indian and Indonesian Constitution India is one of the world’s largest democracies that is inhabited by various religious communities.
These communities live in peace and harmony, and enjoy equality in every walks of their life.
The Indian Constitution aims at providing liberty, equality, and dignity to every citizen, especially to women who have faced various forms of violence in the past.
The Indian constitution under Article 14 grants equality before the law and Article 15 prohibits all forms of discrimination based on religion, race, caste, sex, or place of birth.
Article15(3) permits the state to make special provisions in favor of women and children.
Article 16 grants equality of opportunity for all citizens in employment or appointment to any office.
Apart from these fundamental rights provided under Part III of the constitution, Article 51(A) (e) makes it a duty of every citizen to renounce practices derogatory to women's dignity.
Further, Article 243 D (3) makes provision for the reservation of seats for women in every Panchayat.
Article 243 D (4) makes similar reservation of offices of Chairpersons in Panchayats, Article 243 T (3) for reservation of seats in a Municipality and Article 243 T (4) for reservation of offices of Chairpersons in Municipalities for providing justice and equality for women.
Like India, the 1945 Constitution of the Republic of Indonesia is the highest law of the land and the basis for all law in Indonesia.
The Indonesian Constitution, under its various Articles, provides equality to its citizens.
Chapter X on Citizens and Residents Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 145 in its Article 27 grants equality before the law and the right to work and to earn a humane livelihood.
Chapter XA on Human Rights under its Article 28D states that every person will have the rights of recognition, guarantees, protection, and equal treatment before the law apart from the right to work, receive fair and proper remuneration and treatment in employment and the right to obtain equal opportunities in government.
Article 28H (2) states that every person shall have the same opportunity and benefits to achieve equality and fairness.
Under Chapter XIII on Education, Article 31 (4) guarantees that the state shall prioritize the budget for education to fulfill the needs of implementation of national education.
For Indonesian women, some eleven laws regarding women's rights are enacted out of which six have practical benefits.17 However, despite the constitutional protection by this supreme law, around 282 local bylaws exist that are discriminatory towards Indonesian women and their rights.18 Even the CEDAW report of 2013 highlighted Indonesia’s failure to abide by international human rights laws 17 The Law of the Republic of Indonesia Number 8 Year 2012 on Election of Members of the House of Representatives, Regional Representatives Council and the Regional Representatives Council called PEMILU, Law of the Republic of Indonesia Number 23 Year 2004 on the Elimination of Domestic Violence, Law of the Republic of Indonesia Number 12 Year 2006 on Citizenship of the Republic of Indonesia, Law of the Republic of Indonesia Number 13 of 2006 on the Protection of Witnesses and Victims and the Law of the Republic of Indonesia No.
21 Year 2007 on Combating the Crime of Trafficking in Persons.
Dhia Al Uyun, SH.
MH ‘Women's Rights in Indonesian Constitution’, (2014) 4, (8 (1) June)) International Journal of Humanities and Social Science 75.
18 Of these, around sixty laws were passed in 2013, which restricts a woman by interfering in every sphere of their life including morality, religious behavior, prohibiting women from going outside at night without male accompaniment.
as it has not fully criminalized the practice of female genital mutilation.19 If we reflect on the impact of the Constitution on the gender justice aspect both the Indian and the Indonesian Constitution give due regard to equality among citizens.
However the Indian constitution is more explicit in terms of its gender justice concerns.
Indian constitution has incorporated a good number of provisions towards ameliorating the position and status of women.
For example, due to the mandate of the Indian Constitutional provisions like Article 14, 15, 16, 23, 39, 43, and 46 various legislative measures for the protection of women workers are enacted.20 However, in Indonesia’s case, there are no laws that protect domestic women workers who go to other countries for work, making them vulnerable to exploitation and working in poor work conditions posing health risks, trafficking, and other human rights exploitation.21 In comparison, the Indian constitution makes far-reaching, special effects, and above all, explicit provisions for the upliftment of women that are somewhat missing in the Indonesian constitution under 19 The government banned the practice in 2006 but allowed some form of it in 2010 (No.1636/2010) to check unsafe genital mutilation practices.
20 Article 39 of the Constitution envisages that the state shall direct its policy, among other things, towards securing that there is equal pay for equal work for both men and women lead to the passing of the Equal Remuneration Act, 1976.
Article 42 of the Constitution of India imposes an obligation upon the state to make provisions for securing just and human conditions of work and for maternity relief lead to the passing of the Maternity Benefit Act, 1961.
Other such beneficial laws are the Workmen's Compensation Act, 1923; the Mines Act, 1952; the Payment of Wages Act, 1936; the Minimum Wages Act, 1948; the Factories Act, 1948; the Unorganised Workers Social Security Act, 2008.
21 Laws Curb Women’s Rights in Indonesia, (2014) (14 February) Borgen Magazine, < https://www.borgenmagazine.com/laws-curbwomens-rights-indonesia/> Accessed: 01-042020. https://www.borgenmagazine.com/laws-curb-womens-rights-indonesia/ https://www.borgenmagazine.com/laws-curb-womens-rights-indonesia/ Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 146 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… which the women's rights are written with a unisex approach.
Gender Justice and Gender Violence Faced by Women in her Early Age Women in India and Indonesia face numerous varieties of violence during each stage of their life.
At an early age, a girl child faces challenges including female foeticide, infanticide, sexual offences directed against children, and child marriage.
Abortions Beginning with sex-selective abortions, it is a practice that has a deeprooted thought process at work.
It is one of the worst and most heinous types of genderspecific violence.
In India, the Medical Termination of Pregnancy Act, 1972, and the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act 1996 are the two empowering Acts that protect the childbearing function of the woman and permit prenatal tests and abortions for specified reasons.
However, the identification of the sex of the fetus and sexselective abortions are conducted with impunity.
According to an estimated, around 6.7 million abortions are annually performed in India by illegal providers.
It results in a high level of maternal morbidity and mortality.22 As a result, around 35 to 40 million girls are missing from the Indian population (census 2011).
The sex ratios of girls to boys stand at 927 females per 1000 males in India.
These skewed sex ratios indicate the failure of the management and 22 See G Sedgh, S Henshaw, S Singh, et al., Induced abortion: rates and trends worldwide, (Lancet Publications, 2007).
23 Laws Curb Women’s Rights in Indonesia, (2014) (14 February) Borgen Magazine, < https://www.borgenmagazine.com/laws-curbwomens-rights-indonesia/> Accessed: 01-042020. implementation of the laws made to curb these practices.
Due to widespread corruption, scarce awareness, lack of supervision of genetic and ultrasound clinics, there is an all-around lack of commitment and motivation to implement these laws.
Indonesian Constitution recognizes the sexual and reproductive health rights for women as a human right.
However, enacting the other legislation and regulations has frustrated the constitutional effects by violating women's right to access health.
Indonesia is a signatory to various international human rights instruments, but its compliance with contraception access is poor.
The Committee on the Elimination of Discrimination against Women (CEDAW) in 2013 recommended ensuring a woman’s access to birth control methods without her husband’s consent and with more stress on law enforcement and capacity building of service provider.23 The Indonesian Penal Code 1982 criminalizes abortion services under its Article 346 to 349.
The people indulging in educating, providing information or advice concerning contraception and abortion are criminalized with the punishment of four to fifteen years.
Abortions are banned but millions of abortions are done each year.
All this has resulted in unwanted pregnancies and unsafe abortions that exert detrimental effects on women’s health.24 Indonesia legalizes sex selection using Assisted Reproductive Technology (ART) policy for restricted reasons.
Government Regulation No.
61, along with Article 44, 2014 regarding 24 Executive Summary by the Indonesian Civil Society Coalition on Sexual and Reproductive Health and Rights <https://www.uprinfo.org/sites/default/files/document/indonesia/se ssion_27__may_2017/js19_upr27_idn_e_main.pdf > Accessed: 15-08-2020. https://www.borgenmagazine.com/laws-curb-womens-rights-indonesia/ https://www.borgenmagazine.com/laws-curb-womens-rights-indonesia/ https://www.upr-info.org/sites/default/files/document/indonesia/session_27_-_may_2017/js19_upr27_idn_e_main.pdf https://www.upr-info.org/sites/default/files/document/indonesia/session_27_-_may_2017/js19_upr27_idn_e_main.pdf https://www.upr-info.org/sites/default/files/document/indonesia/session_27_-_may_2017/js19_upr27_idn_e_main.pdf https://www.upr-info.org/sites/default/files/document/indonesia/session_27_-_may_2017/js19_upr27_idn_e_main.pdf Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 147 reproductive health, regulates this policy.
Due to balanced bilateral kinship rules, sex selection are less however gender biases regarding birth and child mortality exist.
The sex ratio of the entire population has also risen over the last thirty years, peaking at 101.2 males per 100 females in the 2010 population census.25 Thus in both countries, women face challenges regarding their reproductive rights.
Women of both countries have limited rights over their bodies and choice about reproductive health and rights.
In India, forced abortion, sex identification, and sexselective abortions are rampant, resulting in an alarming gender gap and the failure of the laws enacted for curbing these practices.
As against this, Indonesia fares better in terms of sex selection due to balanced bilateral kinship rules except limited access to contraception.
Sexual Crimes against Children As per the Indian National Crimes Records Bureau, crimes against children are also rising.
The Protection of Children against Sexual Offences Act, 2012 was enacted to protect a child from sexual offences and sexual assault.
The Act provides relief and rehabilitation provisions by making prompt provisions for a child's care and protection.
The trials of these offences are done in special courts following speedy 25 Guilmoto Christophe Z., Is there a gender bias in births and child mortality in Indonesia?
<https://www.niussp.org/article/gend er-bias-births-child-mortality-indonesiapeutparler-de-discrimination-sexuelle-en-indonesie/ > Accessed: 15-08-2020.
26 Analyzing the POSCO Act 2012, Times of India, April 25, 2013.
27 Female Child Labour in Indonesia, ILO Jakarta Newsletter: Give Girls a Chance End Child Labour (2009) 7 (9 September) <http://www.
ilo.org/jakarta/whatwedo/publications/langen/docName--WCM_041799/index.htm> Accessed: 5-05-2019. and sensitive child-friendly procedures.
However, the lack of awareness about the provisions of this Act and mishandling of cases under it has lead to poor implementation and non-realization of benefits of the Act.26 For Indonesia, its one-third population comprises of children.
According to an estimate, throughout Indonesia, around 40,000 to 70,000 children are victims of sexual exploitation.27 In 2010 around 2,046 reports of violence against children were made with 42 percent related to sexual violence.
In 2012, the figure had risen to 2,637 cases with 62 percent of the sexual abuse cases.28 The trends between 2016 to 2019 continued to increase with 70 victims of child sexual abuse in 2017, 149 victims in 2018, and 1,200 reports about physical, psychological, or sexual abuse (between January to May 2019).29 The 2002 Child Protection Act in Article 4 grants the right to every child to enjoy life without violence and imposes a duty on the guardian or caretaker to protect him against any form of sexual exploitation, violence, and misconduct (Article 15).
The first amendment in Article 9 grants the right to an education free from violence.
The entire Article 76 concerns child, violence against him, forcing sexual intercourse, deceiving into obscene acts, trafficking, and sexual exploitation.30 As a party to World Congress 28 Child Rape in Indonesia a 'National Emergency' <https://www.kebijakankesehatanindonesia.net/3 1-berita/berita-internasional/884-child-rape-inindonesia-a-national-emergency> Accessed: 0209-2019.
29 Siddharta Amanda, Physical, Sexual Violence Against Children Surging in Indonesia, (2019) (4 August) <https://www.voanews.com/east-asiapacific/physical-sexual-violence-against-childrensurging-indonesia > Accessed: 11-3-2020.
30 All these prohibitions are criminalized under Articles 77B, 80-83, and 88 with a punishment of 3.5 years and 72,000,000 rupiahs to https://www.niussp.org/article/gender-bias-births-child-mortality-indonesiapeut-parler-de-discrimination-sexuelle-en-indonesie/ https://www.niussp.org/article/gender-bias-births-child-mortality-indonesiapeut-parler-de-discrimination-sexuelle-en-indonesie/ https://www.niussp.org/article/gender-bias-births-child-mortality-indonesiapeut-parler-de-discrimination-sexuelle-en-indonesie/ https://www.kebijakankesehatanindonesia.net/31-berita/berita-internasional/884-child-rape-in-indonesia-a-national-emergency https://www.kebijakankesehatanindonesia.net/31-berita/berita-internasional/884-child-rape-in-indonesia-a-national-emergency https://www.kebijakankesehatanindonesia.net/31-berita/berita-internasional/884-child-rape-in-indonesia-a-national-emergency https://www.voanews.com/east-asia-pacific/physical-sexual-violence-against-children-surging-indonesia https://www.voanews.com/east-asia-pacific/physical-sexual-violence-against-children-surging-indonesia https://www.voanews.com/east-asia-pacific/physical-sexual-violence-against-children-surging-indonesia Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 148 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… III against Sexual Exploitation of Children and Adolescents (2008) in 2016, the Indonesian parliament passed laws authorizing chemical castration of offenders to deter would-be violators from committing these heinous acts.
More stress is on increasing public awareness regarding sexual abuse among children.31 The cases of sexual violence and child sexual abuse are continually on the rise in both these countries.
Despite these rising reported figures, it is believed that these figures are only the tip of the iceberg as there are countless unreported cases, and the exact figures will be much more.
In terms of dealing with these sexual offences directed against children, India has established robust machinery and effective law to tackle the issue, but the lack of awareness about the provisions of this Act remains a challenge for both the countries who are undertaking awareness initiatives to bring the benefits to the children.
Gender Justice and Gender Violence in Media, Trafficking, and Rape In their adulthood, women face violence in the form of indecent representation and stereotypical portrayal in media, trafficking and rape.
Media Media is not only an important means of communication but is regarded as the guardian of the public interest that shapes young minds towards gender roles.
However, the negative portrayal of women is on the rise.
The general lack of sensitivity towards a maximum of 15 years and 5,000,000,000 rupiahs.
31 Khidhir Sheith, Indonesia must protect its children, The ASEAN Post, (2020) (22 August) <https://theaseanpost.com/article/indonesia-mustprotect-its-children> Accessed: 21-5-2020. this form of violence and non-astringent punitive action has led to portraying women as a commodity.
In India, the Indecent Representation of Women (Prohibition) Act, 1986 prohibits any form of representation of women that is indecent through advertisements, books, and pamphlets.
As per the meaning of the term under Section 2 of Act, ‘Indecent representation of women’ implies any form of the depiction of the woman in such a way that is indecent, derogatory, denigrating women, or is likely to deprave, corrupt or injure the public morality or morals.
The Act does not adequately deal with the cases of electronic media, the internet, and mobile phones.
Practically, the conviction rates are low, and the legal provisions are ineffectual.
The interpretation of diverse sections leaves a lot to the subjectivity of the judges.32 Cybercrime against women is a relatively new form of gender violence.
With the passing of the Information Technology Act, 2000, India gave stress on women’s protection against cyber-stalking, cyber pornography, defamation, e-mail spoofing, harassment via e-mails, morphing, to name a few.
In the case of Indonesia, there is a gradual shift both locally and globally about the women’s portrayal in her traditional role in media.
The portrayal of an ideal woman, from sexual object to subservient with her role restricted to family life, is growing.33 This form of the negative and secondary portrayal of women in media causes an unfavorable impact on the efforts towards women empowerment.
The 32 See cases AIR 1975 SC 1332, AIR 1965 SCR 881.
33 Nash Zakary, Portrayal of Women in Films, Soap Operas, The Jakarta Post, (2018) (6 March) <https://www.thejakartapost.com/life/2018/03/06/ portrayal-of-women-in-films-soap-operas.html> Accessed: 9-11-2019. https://theaseanpost.com/article/indonesia-must-protect-its-children https://theaseanpost.com/article/indonesia-must-protect-its-children Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 149 Indonesian government is carrying out several activities to sensitize the stakeholders about gender issues through media orientation programmes and discussion, debates and dialogues on gender concerns.34 Media that includes components of the mass media and communications industry includes print media, news media, cinema, radio and television.
In India, the laws are passed that protect the indecent representation of women but conviction rates are low thereby making the legal provisions ineffectual.
The laws are half baked that don’t do much to take care of the victimization of women in media and cyber space.
The portrayal of women in Indonesia also leaves much to be desired.
The unfavorable impact of these stereotypical portrayals hampers the efforts towards women empowerment and gender justice.
As against this the Indonesian women still lack the tools to report the instances of cybercrimes and inadequate steps to handle such cases.
Both the countries are making efforts and carrying out several activities to sensitize the stakeholders about gender issues.
Trafficking Human Trafficking is a global menace that has its roots in every culture that includes India and Indonesia.
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000, defines “trafficking” as the recruitment, transportation, transfer, harboring or receipt 34 National report for the ten-year review and appraisal of the implementation of the Beijing Declaration and Platform for Action, (2004) <www.un.org/womenwatch/daw/Review/english/ responses.htm> Accessed: 7-7-2020.
35 Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000.
36 Around 3 million prostitutes in India, UNODC, (2007) 4 (8 May) <https://www.unodc.org/pdf/india/publications/In of persons through threat or use of force or other forms of coercion, abduction, fraud, deception or the giving or receiving of payment or benefit for having the control over the other person.35 India is emerging as the center for human trafficking and a safehaven for the traffickers.
There are over 3 million female sex workers in India, with 35.47 percent of them entering the trade before the age of 18 years.36 It is one of the largest sex industry centers in Asia in which young girls get trapped with no escaping.
The Immoral Traffic (Prevention) Act, 1987 deals with this form of violence that continues due to the lack of sensitivity and understanding of the dynamics of the sex trade and treating sex trafficking victims as immoral.
There is a lack of service coordination between those engaged in curbing human trafficking.
Rehabilitation and reintegration programs for those recovering from the sex trade are ineffective coupled with rejection from survivors who think that sex trade as the only means of survival for themselves and their families.37 In Indonesia, migrant women workers face a higher risk of trafficking for sexual exploitation and up to 30% of all sex workers are under 18 years of age.38 It was from 1990 onwards that employment as sex workers and housemaids, mostly in foreign countries increased.
These domestic women workers are at risk of being forced into prostitution.
It resulted in women becoming the victim of various atrocities and getting infected with dia%20Country%20Report.pdf> Accessed: 13-72020.
37 K Kempadoo and J Doezema, (ed), Global Sex Workers: Rights, Resistance, and Redefinition (New York : Routledge, 1998) 89.
38 T. Hull, G. Jones, and E. Sulistyaninsih, ‘Prostitution in Indonesia’ in Lin Lean Lim (ed.
), The Sex Sector: the Economic and Social Bases of Prostitution in Southeast Asia (Geneva, Switzerland: ILO, 1998) 42. http://www.un.org/womenwatch/daw/Review/english/responses.htm http://www.un.org/womenwatch/daw/Review/english/responses.htm https://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf https://www.unodc.org/pdf/india/publications/India%20Country%20Report.pdf Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 150 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… various sexually transmitted diseases.
There are no laws to check these immoral practices except the Indonesian criminal code that prohibits the facilitation of illegal sexual activity under Article 296, the trade-in women under Article 297, and earning profits from prostitution under Article 506.
The 2007 anti-trafficking law criminalized all forms of labor trafficking and sex trafficking of adults and prescribed penalties of three to fifteen years of imprisonment.
On the flip side, the law requires demonstration of force, fraud, or coercion to constitute a child sex trafficking offense.
Inconsistent with international law, it did not criminalize all forms of child sex trafficking.39A report by the National Commission on Violence against Women (2019) confirms that women with disabilities suffer high from sexual violence (from 40 cases in 2015 to 89 cases in 2019).40 The Indian Constitution under Article 23 specifically bans the trafficking in persons.
The Indian Penal Code, 186041 along with other laws and related regulations deals with the various issues of trafficking in women and children.42 The Immoral Traffic (Prevention) Act, 1956 prevents trafficking 39 United States Department of State, trafficking in Persons Report Indonesia, (2018) (28 June) < https://www.refworld.org/docid/5b3e0b1ca.html> Accessed: 04-07-2020.
40 Why Indonesia’s anti-sexual violence bill important for people with disabilities, https://theconversation.com/why-indonesias-antisexual-violence-bill-important-for-people-withdisabilities-118045> Accessed: 14-08-2020.
41 Section 366A-procuration of a minor girl (below 18 years of age) from one part of the country to the another is punishable; Section 366B-importation of a girl below 2 years of age is punishable; Section 374provides punishment for compelling any person to labour against his will.
42 Juvenile Justice Act, 2986 and 2000; Juvenile (Care and Protection of Children) Act, 2000; Cruelty to women (Deterrent Punishment) ordinance, 1983; Immoral Traffic (Prevention) Act, 1956; the Young Persons Harmful Publication Act, 1956; Indecent Representation of Women among women and children and its commercialization.43 Despite so many beneficial laws in place, trafficking continues in India due to various complexities that include physical, psychological problems of survivors and political, economic, and institutional obstacles that hinder programs designed to assist survivors.
Even the Indonesian Government fails has to a large extent unsuccessful in meeting the minimum standards for the elimination of trafficking.
Though it is making efforts to investigate, prosecute and convict traffickers.
The repatriation services are provided to Indonesian victims from overseas to reduce their vulnerability.
But corruption, lack of familiarity with trafficking indicators and anti-trafficking laws impair proactive victim identification among vulnerable populations, hinders law enforcement efforts makes it complicated to deal with trafficking.44 Rape Out of the many crimes prevalent in society, rape is one of the most heinous crimes because it’s not just an attack on the (Prohibition) Act, 1986; Children (Pledging of Labour) Act, 1933; Bonded Labour (Abolition)Act, 1976; Child Labour (Prohibition and Regulation) Act, 1976; Criminal Law (Amendment Act), 1986.
43 The Immoral Traffic (Prevention) Act, (ITPA) 1956, deals exclusively with trafficking, inhibits trafficking in women and girls for prostitution and declares various related acts as a punishable offence.
The Act was passed in line with the International Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, signed by India on May 9, 1950.
Although the Act was amended twice (1978 and 1986), it did not prove to be an effective deterrent to trafficking or sexual exploitation for commercial purposes.
44 United States Department of State, Trafficking in Persons Report Indonesia, (2018) (28 June) < https://www.refworld.org/docid/5b3e0b1ca.html> Accessed: 04-07-2020. https://theconversation.com/why-indonesias-anti-sexual-violence-bill-important-for-people-with-disabilities-118045 https://theconversation.com/why-indonesias-anti-sexual-violence-bill-important-for-people-with-disabilities-118045 https://theconversation.com/why-indonesias-anti-sexual-violence-bill-important-for-people-with-disabilities-118045 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 151 body of the person but also the soul.45 The Indian Penal Code, 1860 and Criminal Law Amendment Act, 201346 deals with the crime of rape, and makes it a punishable offence.
Despite the presence of strict legal provisions, rape offences are consistently rising.47 Rape is the worst form of crime against women and around 93 Indian women are raped every day.48 According to the National Crime Records Bureau, a new case of rape reported every 22 minutes.49 Despite changed attitude, society at large attaches a stigma to the rape survivor, blames her, and does character assassination of the victim woman instead of castigating the perpetrator.50 Despite Section 114A in the Indian Evidence Act, 1872 that raises a presumption as to the absence of consent in certain prosecutions for rape, the conviction rates remain low.
If we consider the prevalence of this form of violence in Indonesia, a study conducted by the United Nations Multicountry Study at different locations in Indonesia found the prevalence of rape (19.5 percent) and gang rapes (7 percent).51 The rape rate fell from 1.1 cases per 100,000 populations in 2009 to 0.7 cases per 100,000 populations in 2015.52 Around 93% of rape 45 Naresh Pareek, and Kunal Kumbhat, ‘Death penalty for rape: Is it feasible?’ (2005) (July, Vol.
111) Criminal Law Journal 219-222.
46 The Criminal Law Amendment Act, 2013 has increased the list of crimes against women and has made rape and crimes against women more stringent and women sensitive.
All these forms of violence are a reflection of the way society treats women as a commodity or an object.
47 Rape cases in India have doubled between 1990 and 2008, Crime in India 2012, National Crime Records Bureau, Government of India.
48 ‘93 women are being raped in India every day’, NCRB data show, Times of India <https://timesofindia.indiatimes.com/india/93women-are-being-raped-in-India-every-dayNCRB-data-show/articleshow/37566815.cms> Accessed: 1-08-2020.
49 See National Crimes Record Bureau, Crime in India Reports, Statistics Government of India.
victims did not file complaints fearing being blamed and just one percent of cases ended in conviction.53 Article 258 of the penal code defines rape and provides penalties funder Articles 286-288.
Very few cases are agitated in the court due to the lesser punishment given to the offenders.
Ironically the provision of mediation, payment of fines towards the settlement and the practice of allowing marriage between the victim and the rapist frustrate the provisions of the law by normalizes the gruesome act of rape against women.54 Thus despite the presence of strict legal provisions, rape offences in India are consistently rising.
The situation is no better in Indonesia.
Due to stigma, fear of the system, and poor conviction rates, rape complaints are hardly lodged.
Importantly, marital rape that is not recognized in India is also not a criminal offence under the penal code but prohibited under the Elimination of Domestic Violence Law 23/2004 in its various Articles.
Gender Justice, Gender Violence and Marriage Laws 50 Radha Kumar, The History of Doing: An Account of Women's Rights and Feminism in India (India: Zubaan, 1993) 128.
51 Why Do Some Men Use Violence Against Women and How Can We Prevent It?
(UNDP, UNFPA, UN Women and UNV, September 2013) 40.
52 Indonesia Rape Rate <https://knoema.com/atlas/Indonesia/Rape-rate> Accessed: 15-07-2020.
53 Saraswati Putri Widi, Indonesia Needs to Address Its Rape Culture Problem < https://www.vice.com/en_asia/article/vvgyxx/in donesia-needs-to-come-to-terms-with-its-rapeproblem> Accessed: 15-08-2020.
54 CEDAW Concluding observations of the Committee on the Elimination of Discrimination against Women CEDAW/C/IDN/CO/6-7, (2012) 7 <http://tbinternet.ohchr.org/_layouts/TreatyBody External/Countries.aspx?CountryCode=IDN&La ng=EN Accessed on: 09-06-2020. https://timesofindia.indiatimes.com/india/93-women-are-being-raped-in-India-every-day-NCRB-data-show/articleshow/37566815.cms https://timesofindia.indiatimes.com/india/93-women-are-being-raped-in-India-every-day-NCRB-data-show/articleshow/37566815.cms https://timesofindia.indiatimes.com/india/93-women-are-being-raped-in-India-every-day-NCRB-data-show/articleshow/37566815.cms https://www.vice.com/en_asia/article/vvgyxx/indonesia-needs-to-come-to-terms-with-its-rape-problem https://www.vice.com/en_asia/article/vvgyxx/indonesia-needs-to-come-to-terms-with-its-rape-problem https://www.vice.com/en_asia/article/vvgyxx/indonesia-needs-to-come-to-terms-with-its-rape-problem http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN%20 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN%20 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN%20 Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 152 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… A married woman faces domestic violence, dowry demands, and various other forms of matrimonial offences.
Child Marriage Child marriage is yet another phenomenon that is widely practiced in both countries.55 It is a grave and systematic form of abuse towards young girls and violates their several international human rights.
Early marriages are the reason behind poor health, poor education, and poor growth of the personality of women.56 The crime record shows the pervasiveness of this practice.
In India, the Child Marriage Restraint Act 1929 and the Prohibition of Child Marriage Act 2006 prohibits the solemnization of child marriages (preamble and section 15).
They are legally voidable at the option of the party who was a child at the time of the marriage.
As per statistics, 45% of Indian women are married before they reach the legal age of marriage in India ie: eighteen years.57 The percentage of child marriage is much higher in rural areas (58.5 percent) as compared to urban areas (27.9 percent).58 As a social phenomenon, child marriage has deep roots in the Indian social fabric that requires additional support apart from legislative interventions.
Registration of marriage provided under Indian laws for substantially curbing the practice of child marriages is not strictly enforced.59 Poverty, gender inequality, discrimination and poor access to education for girls are the reasons behind the 55 Bharti Dalbir, Women and the Law (New Delhi: APH Publishing Corporation, 2008)24.
56 Alka Barua (et.al.
), ‘Care and Support of Unmarried Adolescent Girls in Rajasthan’, (2007) XLII (44) Economic and Political Weekly 54.
57 Anahita Mukherji, ‘47% of young Indian women marry before 18’,The Times of India, May10, 2011, p. 10.
58 National Family Health Survey of 2005-2006 (NFHScontinuance of these early marriages.
Child marriage leads to poor life skills among young brides and they experience violence and abuse within such marriages.
The practice of early marriage is also widespread in Indonesia, especially in rural areas.
Indonesia’s Law No.1 of 1974 on Marriage Law permits girls to marry at the age of 16.
Around 14 % of the girls marry below this age and 1% of them marry even before the age of 15.
There is no deadline and transparency about the abolition of these early marriages60 that are the prime reason behind maternal mortality of above 200 per 1000 live births in the past decade.61 Hence child marriages with all its negative effects like maternal mortality are pervasive in both countries, especially in their rural areas.
For Indian girls, the age of marriage is slightly high (18 years) as compared to Indonesian law that permits girls to marry at the age of 16 years.
Both countries recognize child marriages but Indian laws prohibit them and make them voidable under certain circumstances.
Nevertheless, none of these countries have so far taken any positive step towards declaring them as absolutely void or for their complete abolition.
Domestic Violence and Dowry Yet another barrier towards women empowerment is the phenomenon of domestic violence, particularly in the matrimonial home that is regarded as a 3), http://www.rchiips.org/nfhs/nfhs3.shtml, > Accessed: 07-12-2019.
59 B S Negi, Child Marriage in India (New Delhi: Mittal Publications, 1993) 9.
60 Human Rights Watch, Indonesia Events of 2018 <https://www.hrw.org/worldreport/2019/country-chapters/indonesia> Accessed: 30-06-2020.
61 UNFPA Indonesia Monograph Series: No.5 Women and Girls in Indonesia: Progress and Challenges (UNFPA Indonesia, 2015) 2. http://www.epw.in/review-womens-studies/care-and-support-unmarried-adolescent-girls-rajasthan.html http://www.epw.in/review-womens-studies/care-and-support-unmarried-adolescent-girls-rajasthan.html http://www.rchiips.org/nfhs/nfhs3.shtml https://www.hrw.org/world-report/2019/country-chapters/indonesia https://www.hrw.org/world-report/2019/country-chapters/indonesia Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 153 private space.
In India, the Protection of Women from Domestic Violence Act, 2005 provides a civil law remedy to protect women in an abusive, violent relationship and subjected to any act of domestic violence.
But due to the traditional conservative value system, family members either refrain or discourage women victims from registering case under this law.
Stigma is attached to reporting these cases in the police station in the garb of family reputation and prestige.62 Apart from domestic violence, dowry is one of the social evils that lead to exploitation, harassment, and violence against Indian women in case their family fails to provide sufficient dowry.63 There is a steep rise in cases related to dowry that continues unabated.64 Dowry or bride price prevails in India that leads to exploitation and harassment of a woman if she brings insufficient dowries or “groom price”.65 To prohibit the demanding and give and take of dowry, the Dowry Prohibition Act, 1961, makes it a punishable offence, but the law is poorly implemented, hardly any cases are filed under this Act and if filed the convictions rate is low.
The absurd interpretation of the Act defeats the very spirit and purpose of this enactment due to which it has failed to set any deterrent effect in the minds of the perpetrators.
Further, the Indian Penal Code, 1860 defines matrimonial offences under Chapter XX (Section 493-498) and Chapter XX-A (Section 498A) that was added by the 62 Chetan Chauhan, ‘Domestic Violence ActWill Law Go the Dowry Act Way?
No System in Place Yet’, Women’s Link (2007) 13 (No.1.
JanuaryMarch).
63 In 2010, 8,391 dowry death cases were reported across India, meaning a bride was burned every 90 minutes, National Crimes Record Bureau, Crime in India 2012, Government of India.
64 Kundula Bala Subrahmanyam v. State of Andhra Pradesh, AIR 1997 SCC 3011.
Criminal Law (Second Amendment) Act 1983.
These sections deal with cruelty against women, bigamy (section 494 and 495), and adultery (section 497).
Nonetheless, husband deserting their first wife and marrying again persists and social pressures, stigma and economic compulsions force the women victim to keep quiet.
It is often difficult for the wife to prove the fact of the solemnization of a second marriage.
Legal hurdles in accessing justice add to the woes of uneducated and un-empowered women.66 Indonesian follows a non-tolerance policy regarding violence against women.67 The Law on Domestic Violence (2004), the Victim Protection Law (2006) and the Law on Anti-Trafficking (2007) deals with this aspect.
The Marriage Act of 1974 discriminates against women by placing men as household head, permits polygamy, and keeping the legal age for a girl’s marriage low.
Matrimonial laws in Indonesia are guided by the civil, customary, and Sharia (Islamic) laws that are based on the religion of the person under which one is registered.
The Law No.
1 of 1974 on Marriage and the compilation of Islamic law in Indonesia lay down the legal standards for governing marriage and divorces.
Both men and women enjoy equal rights under Article 6 of the 1974 Marriage Law and require every marriage to be registered that is not registered.
A strict form of Sharia law exists in some provinces that are discriminatory to women.68 65 Sushil Kumar Sharma v. Union of India and others, 2005(5) SC 71.
66 Roma Mukherjee, Legal Status and Remedies for Women in India (New Delhi: Deep & Deep Publications, 1997).
67 Jack, and Tambiah, S.J., Bride Wealth and Dowry (Cambridge: Cambridge University Press, 1973)17.
68 CEDAW Concluding observations of the Committee on the Elimination of Discrimination against Women CEDAW/C/IDN/CO/6-7 (2012) Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 154 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… Article 1 of the Law on Domestic Violence (2004) defines domestic violence and prescribed criminal penalties against it in Chapter VIII.
There is a general lack of gender awareness among law enforcement agencies leading to weak implementation of domestic violence laws.
Domestic violence is poorly documented and underreported because it is regarded as a private matter.69 Crisis services are often not available in rural areas.
Women are seeking redressal view the entire process of seeking justice as lengthy, complicated, and ineffective.70 Comparatively, due to lack of awareness, domestic violence laws in Indonesia are not effectively utilized, whereas the Indian domestic violence act is quite effectively used to tackle gender violence.
Women in both countries face bigamy and adultery but again, the situation of women in India is better as bigamy,71 and adultery can be a ground for seeking divorce under every personal law.72 In India, dowry demand continues that leads to exploitation, harassment, and violence against Indian women.
But the dowry act has failed to set any deterrent effect in the minds of the perpetrators.
To a large extent, dowry demands are not widespread in Indonesia as women have inheritance rights in land and assets and freedom to decide the choice of the matrimonial home.
Non-registration of 68, 19< http://tbinternet.ohchr.org/_layouts/TreatyBodyE xternal/Countries.aspx?CountryCode=IDN&Lang =EN > Accessed on 21-04-2020.
69 US Department of State, 2016 Country Reports on Human Rights Practices: Indonesia, Washington, DC (2016) https://www.state.gov/j/drl/rls/hrrpt/2016/ eap/265338.htm > Accessed on 02-05-2020.
70 CEDAW Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women Combined sixth and seventh periodic reports of States parties Indonesia, marriage in both these countries persists that deprives women of their legal entitlements in case of need.
Despite these facts, access to justice remains a challenge for women in both countries.
They face countless impediments in terms of social stigma, fear of police and legal machinery, costly, long, and cumbersome legal battles, to name a few.
Gender Justice, Gender Violence and Women at the Workplace Women at the workplace face numerous problems ranging from problems of security, sexual harassment, safety concerns, wage disparities, non-payment of wages, non-satisfactory childcare facilities, to name a few.
All these problems are common to both India and Indonesia.
If we look at the workplace from the gender justice perspective, India has undertaken various social changes towards women's education and economic development that have contributed to their independence and progress of women in Indian society.
They are now shouldering new responsibilities, both at home and work front.
As per the National Sample Survey Office reports, women's work participation rate for the year 2017-2018 stands at 23.3 percent.
Thus women are gradually coming out of their CEDAW/C/IDN/6-7, CEDAW, New York (2011) p.68,19 <http://tbinternet.ohchr.org/_layouts/TreatyBody External/Countries.aspx?CountryCode=IDN&La ng=EN> Accessed on: 20-7-2020.
71 Under the Hindu Marriage Act, 1955; Section 5(i) prohibits bigamy; Section 11 makes a bigamous marriage void and Section 17 makes it a penal offence under Sections 494 and 495 of the Indian Penal Code, 1860.
72 Under the Indian legal system, personal laws direct and control the relations within the family and marriage and are specific to each community.
http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN https://www.state.gov/j/drl/rls/hrrpt/2016/eap/265338.htm https://www.state.gov/j/drl/rls/hrrpt/2016/eap/265338.htm http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=IDN&Lang=EN Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 155 homes and making economic contributions but not without challenges.73 India has enacted various protective laws for women in the workplace.
If we look at National Sample Survey Office reports, out of the total 46.5 crores workforce in India, around 2.8 crores are employed in the organized sector and 43.7 crores in the unorganized sector.
Every unorganized sector is typified by low wages, poor living standards, long working hours, hazardous working conditions, etc.
The Unorganized Workers’ Social Security Act, 2008 affirms and promotes principles of equality and equity for women.
This Act is the first of its kind that regulates the unorganized sector and the plight of domestic women workers by providing social security to them.
Realistically, this law remains ineffective as the majority of the workforce employed in the unorganized sector is unable to reap the complete benefits of this advantageous Act.74 It has shown dismal progress as minimum social security standards enforceable by law are not defined and the institutional powers to ensure effective implementation of its provisions are not detailed.
Another common workplace-related issue is the sexual harassment of women at her workplace that is violative of the right to work with dignity.
This form of harassment can take the shape of unwelcome sexual conduct.
It was in 1997 that the Indian case of Vishaka v. State of Rajasthan, AIR 1997 SC.
3011 laid guidelines to deal with this 73 Rukmini S, India’s Workforce is Masculinizing Rapidly <https://www.livemint.com/news/india/india-sworkforce-is-masculinising-rapidly1560150389726.html> Accessed: 05-08-2020.
74 Bhasin, Alok, Labour Laws-A Primer (Lucknow: Eastern Book Company, 2011) 148.
75 Ayesha Kidwai , ‘Sexual Harassment in the Workplace, The Verma Committee and After’, (2013) 48 (6) Economic and Political Weekly.
variety of violence.
Later, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 defined sexual harassment at the workplace.
The Act provides a redressal mechanism to deal with complaints filed by aggrieved women.
Practically, in case of initiation of redressal proceedings, women are often harassed and pressurized to either leave their employment or relocate to other office branches.
There has been a threat perception of women losing a job if they dared to complain, especially in cases where the culprit happens to be the employer.75 Additional Labour laws like the Maternity Benefits Act, 1961, the Equal Remuneration Act, 1976, and Minimum Wages Act protects Indian women workers.
The Maternity Benefits Act, 1961 regulates employment conditions of women laborers employed in factories by making provisions for crèches and sanitation.76 However, employers negate these conditions, and women workers lack awareness about these benefits.
The Equal Remuneration Act, 1976 was enacted for providing payment of equal remuneration to women workers devoid of gender-based discrimination.
None of these Acts are effectually implemented as employers re-classify the jobs to avoid payment of similar wages.77 In the case of Indonesia, it was after the large scale multinational investments during the 1970s that the Indonesian women joined the workforce as cheap labourers in manufacturing units.
The number of male 76 Government of India, Report on the Working of the Maternity Benefit Act, 1961 during the Year 2008 <http://labourbureau.nic.in/Report_MB_Act_200 8.pdf > Accessed: 06-10-2019.
77 Nivedita Menon, Themes in Politics Gender and Policies in India (New Delhi: Oxford University Press, 1999) 26-27. https://www.livemint.com/news/india/india-s-workforce-is-masculinising-rapidly-1560150389726.html https://www.livemint.com/news/india/india-s-workforce-is-masculinising-rapidly-1560150389726.html https://www.livemint.com/news/india/india-s-workforce-is-masculinising-rapidly-1560150389726.html Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 156 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… versus female labour participation is 67,944,695: 40,186,363 and the rate of average salaries is 1,141,308 rupiahs: 854,052 rupiahs for the same work.78 They hold 33% of non-agricultural employment.79 As per the 2000 census, women account for 47% of the workforce (excluding women working from home, doing piece work, selling in the market, etc.).
In 2018, there is an increase of 55.4 percent in the labor force participation of women.
Thus women are growingly entering the Indonesian labour market but have a lower participation rate and continue to be either unemployed, have poor wages and face inequality in work and promotion with inadequate access to resources making them vulnerable to both personal and financial insecurities.
For women, the workplace remains a non-friendly site.
The related laws are not entirely enforced and women hardly report these cases to authorities fearing dismissal from the job.80 Law 13/2003 provides similar opportunities to get a job without any discrimination under Article 5 and equal treatment from the employer under Article 6.
But there is no clarity about the non-discrimination based on sex.
There is no law on equal pay for equal work, though maternity leaves are granted under Article 82.
Companies often try to evade these requirements by hiring women as day labourers and not as full-time employees, pregnant women workers are made to resign and domestic workers are denied any such protections.81 Despite its widespread 78 Dhia Al Uyun, above n. 17, 75.
79 ‘Share of women employed in the nonagricultural sector (% of total non-agricultural employment)’, The World Bank < https://tcdata360.worldbank.org/indicators/37a4b 818?country=BRA&indicator=28111&viz=line_c hart&years=1990,2013> Accessed: 21-09-2019.
80 Indonesia: Sexual harassment & discrimination of women remain high despite increased labour force participation prevalence, there is no separate legal provision to deal with sexual harassment.
Only, the penal code under Article 281 defines ‘indecent public act’ and makes volitions of this article a punishable act.
As per the Human Rights Watch report of 2017, the women facing harassment are often not forthcoming.
Above that, the local by-laws pass on the blame of sexual harassment on the victim.
Thus women at the workplace women face sexual harassment, inequality, and discrimination that deny several rights.
Pertinent laws for preventing sexual harassment are crucial for women's sustenance and dealing with other workplace associated problems.
Due to changed economic and educational attainments along with a huge number of laws enacted for protecting women, they are gradually coming out of their homes and are making economic contributions to their respective countries.
Statistically, women in both countries are growingly entering the labour market but the concerned laws are ineffective as the majority of the workforce employed in the unorganized sector.
Even the employers try to steer clear of the effect of these beneficial laws by either reclassifying jobs, showing resistance in hiring women for their core jobs, and pressurizing women to refrain from complaining against the wrongs suffered by them at the workplace.
India sill fares better in terms of enacted laws for equal pay for equal work, protecting women against sexual harassment, and maternity benefits to women <https://www.business-humanrights.org/en/latestnews/indonesia-sexual-harassmentdiscrimination-of-women-remain-high-despiteincreased-labour-force-participation/ > Accessed: 10-02-2020.
81 US Department of State, ‘2016 Country Reports on Human Rights Practices: Indonesia’, Washington, DC (2016) https://www.state.gov/j/drl/rls/hrrpt/2016/ eap/265338.htm > Accessed on 02-05-2020. http://data.worldbank.org/ http://data.worldbank.org/ https://tcdata360.worldbank.org/indicators/37a4b818?country=BRA&indicator=28111&viz=line_chart&years=1990,2013 https://tcdata360.worldbank.org/indicators/37a4b818?country=BRA&indicator=28111&viz=line_chart&years=1990,2013 https://tcdata360.worldbank.org/indicators/37a4b818?country=BRA&indicator=28111&viz=line_chart&years=1990,2013 https://www.business-humanrights.org/en/latest-news/indonesia-sexual-harassment-discrimination-of-women-remain-high-despite-increased-labour-force-participation/ https://www.business-humanrights.org/en/latest-news/indonesia-sexual-harassment-discrimination-of-women-remain-high-despite-increased-labour-force-participation/ https://www.business-humanrights.org/en/latest-news/indonesia-sexual-harassment-discrimination-of-women-remain-high-despite-increased-labour-force-participation/ https://www.business-humanrights.org/en/latest-news/indonesia-sexual-harassment-discrimination-of-women-remain-high-despite-increased-labour-force-participation/ https://www.state.gov/j/drl/rls/hrrpt/2016/eap/265338.htm https://www.state.gov/j/drl/rls/hrrpt/2016/eap/265338.htm Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection Tyagi Gender Violence, Gender Justice, and Gender-Based Laws…| 157 in unorganized sectors.
For both the counties, to close the existing workforce gender participation gaps the focus should be directed on equal employment opportunities, women’s training, skill development, segmentation, and covering of wage gaps.82 IV.
CONCLUSION AND SUGGESTION Considering the data on the status of women in India and Indonesia, it is proved that women are generally treated with apathy, indifference, and discrimination.
Women, in general, have been denied their due rights in every stage of their life.
When we look at women working shoulder to shoulder with their male counterparts, we get an impression of equality.
In reality, women continue to suffer in the absence of real analysis of their problems.
Constitutional provisions and the legislation enacted by both the Government of India and the Government of Indonesia aims to safeguard the interests of women.
Several women-centric legislations are bringing slow but active change in the social, economic, and political status of women in these two countries.
However, stringent efforts are required towards laying a strong foundation for gender justice and women empowerment.
Both these countries do not secure all the rights of women due to diverse reasons.
Early marriages are unchecked in both countries, and both are working towards awareness generation and curbing them.
There is a tendency of non-reporting of child sexual abuse and rape cases.
The governmental efforts are now directed at providing a safe environment for victims with thrust on sensitive handling of this gender-specific violence.
India is gradually 82 Global Network for Advanced Management, What are the Obstacles to Women in the Global Workforce?
progressing towards addressing child sexual abuse cases.
Both countries are finding ways to improve both the content and enforcement of these laws.
As a party to several womencentric conventions, both India and Indonesia are working towards these commitments and incorporating them in their respective national legislation.
In this regard, again, India is fairing far better than Indonesia, evident from the host of laws it has enacted for women.
India is planning to increase the age of marriage to 21 years from the current 18 years under its marriage laws.
Stringent punishments are prescribed for the solemnization of early marriages.
A lot of initiatives and awareness generation programs launched in India about the harmful effects of early marriages and maternal mortality are effective.
Further, the brief survey of statistics on the prevalence of domestic violence laws, it is discernible that there is a need for addressing it.
We need to deal with the reasons behind domestic violence that will include the evaluation of poverty, gender discrimination apart from providing equal access to education for girls.
There is a need to develop support systems for girls who are married and are experiencing violence and abuse within marriage.
To help victims of domestic violence and sexual abuse, Police Officers need to take immediate action.
Delays in filing the police reports should not stop the course of the investigation of a crime.
Deployment of police forces is crucial as the same can prevent the happening of crimes related to violence against women.
Health and reproductive rights is yet another area of consideration.
There is a need for greater involvement of the medical community by banning all kinds of <https://globalnetwork.io/perspectives/2017/03/w hat-are-obstacles-women-global-workforce> Accessed: 02-08-2020. https://globalnetwork.io/perspectives/2017/03/what-are-obstacles-women-global-workforce https://globalnetwork.io/perspectives/2017/03/what-are-obstacles-women-global-workforce Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 158 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… commercial use of sex-selective techniques.
The Government must create the machinery to implement these laws and for educating its officers and stakeholders about its provisions and implications.
Awareness generation among women about the laws with a thrust on women’s education will increase their voice in decision-making and participation in society.
The statistics prove that young girls from both countries receive a poor education, face violence, discrimination, and have low women workforce participation rates.
Women face workplace-related issues, including lower wages, poor work conditions, and rampant sexual harassment.
The need is to make labour laws nondiscriminatory.
Retention policies should ensure equal pay for equal work, minimum wage, maternity protection, and prevent sexual harassment at the workplace.
Speedy, stringent remedy can check the issue of sexual harassment with a focus on ensuring that any affirmative action is not detrimental to women and their employment prospects.
Therefore, the women related issues must be considered with gravity as well as sensitivity.
Complete women empowerment and gender justice will not be achieved just by making gender-based laws, rules, policies and regulations.
There should be constant monitoring of their implementation through regular research and studies.
Appropriate steps should be undertaken to curbing the prevailing discriminatory practices.
There should be thrust on changing the feeble situation of women in both these countries.
This can be achieved by the active and honest participation of all the concerned parties.
Lastly, it is crucial to create awareness about women empowering laws and policies to bring gender justice for women of these two countries.
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Saraswati, Putri Widi, Indonesia Needs to Address Its Rape Culture Problem < https://www.vice.com/en_asia/articl e/vvgyxx/indonesia-needs-to-come-toterms-with-its-rape-problem> Accessed: 15-08-2020.
Siddharta, Amanda, Physical, Sexual Violence Against Children Surging in Indonesia, (2019) (4 August) <https://www.voanews.com/e ast-asia-pacific/physical-sexualviolence-against-children-surgingindonesia > Accessed: 11-03-2020.
Brawijaya Law Journal Vol.7 No.2 (2020) Contemporary Legal Issue in Children and Women Protection 162 | Tyagi Gender Violence, Gender Justice, and Gender-Based Laws… United States Department of State, ‘Trafficking in Persons Report – Indonesia’, (2018) (28 June) < https://www.refworld.org/docid/5b3e0 b1ca.html> Accessed: 04-07-2020.
US Department of State, ‘2016 Country Reports on Human Rights Practices: Indonesia’, Washington, DC (2016) https://www.state.gov/j/drl/rls/ hrrpt/2016/eap/265338.htm > Accessed on 02-05-2020.
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DOI: http://doi.org/10.21776/ub.blj.2021.008.02.01 | 159 The Politics of Indonesia's Decentralization Law Based on Regional Competency Ngesti Dwi Prasetyo*, Moh.
Fadli, Tunggul Anshari SN, Muchamad Ali Safa’at Fakultas Hukum, Universitas Brawijaya *Email: ngesti78@gmail.com Submitted: 2021-06-25 | Accepted: 2021-09-22 Abstract: Local governments have undergone various regulatory developments since Indonesia's independence 75 years ago.
Various aspects underlying the development and changes in local government policies can be analyzed using several approaches, such as historical, philosophical, and sociological.
This paper will discuss how the legal politics of the development of local government implementation, especially in terms of decentralization.
Furthermore, the author will explain about the opportunities for implementing decentralization based on regional capacity to promote welfare of society.
This research is normative juridical research using historical approach, conceptual approach, and legal approach.
It can be said that the implementation and development of local government implementation is strongly influenced by various aspects other than the legal factor itself.
Furthermore, there is still the possibility of implementing decentralization based on regional capacity as an effort to promote social welfare.
Keywords: decentralization, regional competence, legal politics I.
INTRODUCTION In Indonesia, the discourse about the appropriate form of a constitution began more than 75 years ago.
This discourse begins with a discussion of the many regulatory processes that control the decentralized government paradigm.
The dynamics are driven by a variety of philosophical rationales.
For instance, the selection of decentralized models occurred following regime changes that exposed the 1 Muhammad Noor, Acknowledging the decentralization of Indonesia, (Interpena, 2012), pp.
52 void of power and encouraged other politicians and their groups to impose greater autonomy, or democratization that could increase the relevance of decentralization for the people, mobilizing grassroots support, etc.1 Apart from the pressures and political realities outlined above, intellectual disputes on the need or otherwise of decentralization also have a considerable impact.
Differences in theoretical perspectives can influence http://doi.org/10.21776/ub.blj.2021.008.02.01 mailto:ngesti78@gmail.com Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 160 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… attitudes toward decentralization and the decentralization implementation strategy.
Indonesia as a country still in the process of developing its constitutional structure is frequently volatile.
This dynamic is represented in Indonesia's legal politics of decentralization.
The relationship between legal politics and decentralization in Indonesia paints a picture of the evolution of the law dictating how decentralization is to be implemented in all applicable laws and regulations in Indonesia.
Since the 1950s, Hennry Maddick has laid the groundwork for decentralization, which was later critiqued by Amy Upton Nolan2 in his thesis on the evolution of decentralization.
Nolan emphasized in his article Hennry Maddick's assertion that the essence of decentralization was an umbrella of deconcentration and devolution (decentralization).
The second Islah is denoted by the following: First, deconcentration is “the delegation of authority adequate for the discharge of specified functions to staff of a central department who are situated outside the headquarters”; Second, Devolution or Decentralization is, “the legal conferring of powers to discharge specified or residual functions upon formally constuted local authories.”3 Figure 1 illustrates the development or dynamics of decentralization implementation in each set of laws and regulations.
According to the Figure 1, prior to the 1945 Constitutional amendments, the arrangement of regional government evolved significantly since the establishment of the 2 Henry Maddick, Democracy Decentralization, and Development, (London: Asia Publishing House, 1966), pp.23 3 Henry Maddick, Ibid, pp.23 4 Bagir Manan, Welcome to dawn of regional autonomy, (Center for Legal Studies, Faculty of Unitary State of the Republic of Indonesia to the enactment of Law Number 5 of 1974 concerning the Principles of Government in the Region.
It is crucial to emphasize that decentralization policies can also be influenced by external pressures and political circumstances.
As a result, each law is philosophically and sociologically distinct in terms of its formulation and concept of administering regional government's affairs.
The formulation and concept developed in response to the social conditions of the time period in which it lived.
One of the unresolved issues that will continue to haunt regional governance's legal politics is the suspicion that regional autonomy will result in disintegration.4 According to the preceding presumption, the requirement for a reappraisal is tied to how Indonesia's legal politics of decentralization operate.
Adjustments are hoped to be made under the guise of regional competence.
According to John M. Cohen and Stephen B. Peterson, the fundamental competency framework identifies decentralization through 6 (six) distinct methods, namely: 5 1) Basic of historical origins (based on history); 2) By hierarchy and function (based on hierarchy and function); 3) By problem being addressed and the values of the investigation (based on suspicions and an investigation of values); 4) Focus on patterns of administrative structures and functions that are responsible for the production and Law, Islamic University of Indonesia, 2001), pp.
4.
5 John M Cohen and Stepen B. Peterson, Adminitrative Desentralization, (Kumarian Press, 1999), pp.
20-22.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 161 provision of collective goods and services (concentrated on the patterns of administrative structures and functions that are accountable for the results and provision of goods and services); 5) Typically based on the experience of a single country (the type defined by the experience of a particular country); and 6) On basis of objectives (selected for the purposes).
Figure 1 Development of Decentralization Policy and Regulation in Indonesia Source: secondary material of legal law, processed 2021 Law 23/2014 concerning Regional Government Law 32/2004 concerning Regional Government Law 22/1999 concerning Regional Government Law 5/1974 concerning the Principles of Regional Government Act 18/1965 concerning the Principles of Regional Government Presidential Determination Number 6 of 1959 concerning Regional Government Law 1/1957 concerning the Principles of Regional Government Law 22/1948 concerning the fundamental rules governing the government in areas where it is authorized to regulate the household Law 1/1945 concerning the regulations governing the Regional National Committee's position Decentralisatie Wet 1903 Semi centralization (The effectiveness correction and efficiency) Semi decentralization Dominant decentralization Dominant centralization Dominant decentralization Dominant centralization Dominant centralization Dominant centralization Dominant centralization Dominant centralization 10 years 5 years 25 years 9 years 6 years 2 years 9 years 3 years 42 years Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 162 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… This regional competency framework is also expected to be able to answer several objectives from decentralization formulation, namely for social welfare.
Social welfare aspects cannot be separated from social justice based on John Rawls in his book A Theory of Justice6, explaining the theory of social justice as the Difference Principle and The Principle of Equality of Opportunity.
The essence of the distinct principle “prinsip pembeda” is that the social and economic disparities must be structured in a way that benefits those deemed disadvantaged, which in this context refers to someone who does not have the same possibility or opportunity in his attempts to get fundamental requirements.
While the essence of the principle of equality of opportunity means that the party who has the smallest opportunity to achieve a welfare needs a special protection.7 According to Rawls in “Theory of Social Justice”, the unequal situation in this socioeconomic sector must be structured in a way that benefits the weak parties.
The enforcement enforcement program that is populist in nature must adhere to two principles of justice, namely providing equal rights and opportunities for basic freedom and then reorganizing the socioeconomic divide in such a way that there is reciprocity that benefits both lucky and unlucky parties.
So that the predicted decentralization map based on the competence model may supply an aspect of "The Distinct Principle," this area is predicted to benefit the greatest number of regions with the most adverse conditions.
According to the statement above, the focus of this study is on how does legal politics the development of local government implementation, especially in 6 John Rawls, Theory of Social Justice, H. Gene Blocker (ed) (Ohio: Ohio University, 1980), pp.
59. terms of decentralization.
Furthermore, the author will explain the opportunities for implementing local capacity-based decentralization for the welfare of the community.
II.
LEGAL MATERIALS AND METHODS This article discusses the politics of regional competency-based decentralization law, with an emphasis on the formation of laws regulating regional government and the process by which authority is distributed between the central and regional governments in unitary state-related areas.
Furthermore, this article explores regional opportunities that serve as the foundation for decentralization with the intention of representing the community's spirit and needs and increasing community engagement in development.
This research was conducted through the normative juridical method utilizing 3 (three) approaches, namely the historical approach, the conceptual approach, and the Statue Approach.
The researchers took a historical approach in analyzing the evolution of legislation pertaining to regional government.
The researchers employ a conceptual framework to analyze the implementation of regional competencybased decentralization concepts.
The legislation approach is used to analyze legislation at all levels, from the fundamental principles of the Constitution and Law to Government Regulations and other implementing regulations that pertain to the subject of this article.
As with other normative studies, this article draws primary law material from 7 Ibid., pp.
230.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 163 legislation, including Law Number 23 of 2014 concerning Regional Government and related implementing regulations.
Furthermore, the researchers consult secondary legal materials in the form of books, papers, comprehensive manuscripts, studies published by government and nongovernmental organizations, and other literature that can bolster this writing about concepts, theories, principles, and standards, particularly in the context of regional government and others who are closely related to the paper's theme.
Along with these two legal documents, the researchers needed tertiary legal sources in the shape of dictionaries, both Thursday law and a language dictionary that will aid them in the process of developing arguments for this article.
III.
RESULT AND DISCUSSION Historical, philosophical, and sociological studies of regional competency-based decentralization legal politics in Indonesia a.
History Throughout the history, the dynamics of trial and error in the legal politics of decentralization in our constitutional system have seen ups and downs.
As stated in Article 18 of the 1945 Constitution, Indonesia is divided into large regions and small areas, each of which has the right to selfsufficiency, also known as autonomy.
Autonomy refers to a lower government's ability to control and administer certain government functions.
Government issues that can be handled and administered freely and independently will be referred to as autonomous.8 For this reason, founder of the Unitary State of the Republic of Indonesia long ago had been legally thought about 8 Muhammad Yamin, Proclamation and Constitution of the Republic of Indonesia, (Gahlia Indonesia, 1982), pp.
145 regional government.
Therefore, the issue of regional autonomy must be realized in the framework of the unitary state as mandated by Article 18 of the 1945 Constitution, the substance: “The division of the Indonesian region for large and small regions with the form of the composition of its government is determined by the law on the basis of 6the provision of the state government and the rights of origin in a special area.” There is an attraction in the state's life as part of the legal historical documents to implement Article 18.
Law is not an end in itself, but rather a means to an end.9 In order to comprehend autonomy, we must first understand its purpose.
The term "autonomy" can be defined in two ways: in the broad sense, it encompasses co-administration, and in the restricted sense, it excludes coadministration activities.
After the Old Order government fell and was replaced by the New Order government, Law Number 5 of 1974 was formed about the principal in the region.
The formation of the law politically is the impact of legal history due to Law Number 22 of 1948 concerning the determination of the main rules regarding its own government in regions that are entitled to regulate their own household made during the revolutionary period accompanied by pressure from Dutch colonizers, where at that time the Dutch still often conducted his efforts to maintain colonialism in Indonesia.
After the end of the Dutch colonialization and the enactment of the 1950 UUDS (Temporary Constitution 1950), the government still used Law Number 22 of 1948 concerning the determination of the main rules regarding its 9 Sunaryati Hartono, Legal Politics Towards A National Legal System (Alumni, 1991), p. 11 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 164 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… own government in regions entitled to regulate their own household.
On January 17, 1957, Law Number 1 of 1957 was promulgated, outlining the fundamental principles of regional governance.
This is the statute that pioneered the concept of true autonomy.
Additionally, this law clarifies that there is no clear explanation or divide between central and regional governments, with being tough and rigid if specifics of authority or affairs between the central and regional governments are involved.10 After roughly 11 years of application of Law No.
1 of 1957, on July 23, 1974, promulgated Law No.
5 of 1974 about the Principles of Regional Government, we can conclude that this law is a regional government law of the new order.
The law is perceived as not explicitly controlling the division of powers between the central and regional governments, as this division will be further defined in Government Regulations.
Additionally, this law is highly influenced by centralism, as the central government has the ability to decentralize the functions supplied by the central government to the regions.
On the regional level, elections for regional heads lacked democracy as well, as they were submitted to the Regional People's Representative Council without a direct election system.
After 25 years of applying Law Number 5 of 1974 following the fall of the New Order regime, the new administration felt it as necessary to amend Law Number 5 of 1974.
It promulgated Law No.
22 of 1999 about Regional Government, which has the 10 Sirajuddin and Et Al., Regional Government Administration Law, (Malang: Setara Press, 2016), pp.
12 11 Afif Syarif, 'Tidal Tides Regional Autonomy in the Republic of Indonesia Bonds System: Overview of effect of repealing Law No.
5 of 1974.
When the long trip of Law Number 5 of 1974 is evaluated in relation to the legal evolution of regional autonomy, it becomes a logical thing to do to amend the law.11 Regional Government Law No.
22 of 1999 promulgated on May 7, 1999 and legally official regional autonomous service can be expected to be in accordance with the mandate of the state of Indonesia's containment, thereby improving people's welfare.
However, there are still others who face legal penalties under Law No.
22 of 1999, which establishes numerous petty kingdoms in the area.
This is because the law promotes company expansion into new areas with the primary objective of funneling funds to the regions, establishing monopolies on mining concessions in the regions, and imposing high taxes on regional income interests.
As a result, this encourages oligarchs and political clients to decentralize.12 In light of these circumstances, the administration considers the necessity of amending Law Number 22 of 1999.
On October 15, 2004, the government promulgated Regional Government Law No.
32 of 2004.
The positive direction indicated by this law is the implementation of regional autonomy with the goal of accelerating the realization of community welfare by increasing regional competitiveness while taking into account the principles of democracy, equity, justice, privileges, and area specificity within the Unitary State of the Republic of Indonesia system.
Additionally, the law encourages Regional Government Legal History' (2013) Vol.
6 No.7 Journal of Inovatif, pp.
48 12 Wasisto Raharjo Jati, ‘Regional Autonomy Paradigm Inconsistency in Indonesia: Cultural and Decentralization Issues’, (2012), Volume 9 No.4, Journal of Konstitusi, pp.
743-769 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 165 autonomous regions to be able to electrocertically expand their potential and diversity, as well as give financial autonomy.
Considering its progress, Law Number 22 of 1999 did not provide enhanced capability or regional dissolution for the province to exercise its autonomy.13 After 10 years of the application of Law Number 32 of 2004, the Act was amended by the introduction of Law Number 23 of 2014 concerning Regional Government.
Although this law is still in its development stage, there is discussion about whether the newly determined laws are still better than Law Number 32 of 2004, or whether Law Number 23 of 2014 prefers Autonomy in terms of constitutionality and Reformation needs over the last decade.14 In the end, Law No.
32 of 2004 experienced a paradigm shift in Law Number 23 of 2014 concerning Regional Government that the fundamental shift between what was confirmed in the 1945 Constitution and Law Number 23 of 2014.
In Article 18 paragraph (5) The 1945 Constitution is consistent as reaffirmed in the Regional Government Act 2004 Article 10 paragraph (2) that: "In carrying out regional government affairs, as defined in paragraph (1), the regional government has the broadest autonomy to control and manage regional government matters based on the principles of autonomy and coadministration."
The regional government is the legal subject of the rules above since it administers the widestic autonomy in accordance with 13 Suharno, ‘Critical Review of Law Number 32 of 2004 concerning Regional Government’, (2004), Volume 1 No.
2, Journal of Civics, pp.
168-180 14 Hesti Armiwulan, ‘Legal politics of regional government based on Law Number 23 of 2014 in terms of institutions and the relationship between the authority of the regions in Inna Junaenah et.
al., the concept of autonomy and the responsibility of co-administration established by the Republic of Indonesia's laws in 1945.
Meanwhile, under Law No.
23 of 2014 on Regional Governments, which was enacted by the government, the focus shifted to the government.
This can be gained by the following provisions of Article 5: (1) The President of the Republic of Indonesia holds executive authority in accordance with the Republic of Indonesia's 1945 Constitution; (2) Government Authority, as defined in paragraph (1), is manifested in a variety of government matters; (3) The President is helped in conducting government affairs, as defined in paragraph (2), by the minister who arranges some government matters; and (4) Government affairs, as defined in paragraph (2), are carried out in the region through decentralization, deconcentration, and coadministration.
The article unequivocally adopts the fundamental principles outlined in Law No.
5 of 1974 regarding the region's primary points of government.
The title of the law indicates that it regulates the President's authority as regional government organizers, not regional government itself.
Although the term decentralization (and co-administration) was added at the conclusion of the formulation, the verse's meaning is identical to that expressed traditionally by Henry Maddick15, namely, “the delegation of authority adequate for discharge of specified functions to staff of a Decentralization or re-centralization?
Politics of Regional Government Law According to Law No.
23 of 2014 concerning Regional Government, (State Policy Study Center, 2015), p. 102.
15 Henry Maddick, Democracy Decentralization, and Development, (London: Asia Publishing House, 1966), p 44 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 166 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… central department who are situated outside the headquarters” or government tends to centralize.
When the history of regional government laws is considered, it is clear that our subordinative system has seen its share of ups and downs.
As previously stated, the decentralization model in Indonesia, also provided affirmation as a unitary state, even though the concept of model (Union) or unity has been completed, the model of government (whether decentralized or centralized) has not been completed.
The completion of this unity or model of unity is based on the Feeting Fathers' legal politics, which upholds article 1 paragraph (1), which is consistently regulated in various legal products.16 The unitary state in question Article 1 paragraph (1) of the 1945 Constitution is a unitary state that applies the legal politics of decentralization as stipulated in the provisions of Article 18 of the 1945 Constitution.
Conceptually, the unitary state can be distinguished in two forms; (1) Unitary state with a centralized system.
(2) Unity countries with decentralized systems.17 As explained in the preceding chart, Indonesia was effectively faced with two options due to the unitary state structure of its government administration: centralisk or desentralisk.
Both options are permissible and legitimate, with all of their associated benefits and drawbacks.
Sentrisk is typically run on a country with a small territory, a 16 Minutes of the Workers Meeting of the People's Consultative Assembly (MPR) of the Republic of Indonesia, 1945 People's Consultative Assembly of the Republic of Indonesia, in 2002, HLM 38.
There are several agreements, including (1) preserving and adhering to the 1945 opening, (2) preserving the Unitary State of the Republic of Indonesia, (3) preserving the Presidential System, (4) amending the 1945 Constitution using the homogeneous population, and a monarchical government.
In France, the Netherlands, and Sweden, for example.
Meanwhile, large countries with a diverse population, such as Indonesia, are better suited to decentralization.
Thus, we can say that the Founding Fathers' legal politics resulted in the formulation of Article 18 of the 1945 Constitution.
There is only one thing that has been expressly forbidden in the Unitary State of the Republic of Indonesia, which is also central region.18 To analyze decentralization, we will use six (six) approaches, namely:19 1) Basic of historical origins (based on history); 2) By hierarchy and function (based on hierarchy and function); 3) By problem being addressed and the values of the investigation (based on problems that arise and investigating values); 4) fovis on patterns of administrative structures and functions that are responsible for the production and provision of collective goods and services (focused on patterns of administrative structures and functions responsible for the results and provisions of services and goods); 5) Typically based on the experience of a single country (the type based on a particular country's experience); and 6) on basis of objectives (based on the goal) adendum method, and (5) incorporating the basic norms contained in the 1945 Constitution's explanation into the 1945 Constitution's Articles.
17 Indra Perwira, op.cit., p. 436 18 See in the explanation of Article 18 of the 1945 Constitution before the amendment 19 John M Cohen and Stepen B. Peterson, Adminitrative Desentralization, (USA: Kumarian Press, 1999), pp.20-22.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 167 b.
Philosophical As previously stated, the unitary state had both decentralization and centralization conceptually.
In a unitary state with a centralized system, the central government regulates and oversees everything in the country immediately, and the regions only carry out the central government's instructions.
Whereas in a unitary state with a decentralized system, the depiction of areas with the ability and authority to regulate and manage their own households (regional autonomy) is not separated into autonomous regions.20 The understanding serves as an introduction to the fact that there is a legis ratio for why substituted scientific literature on decentralization includes regional autonomy as a necessary component, as regional autonomy is the essence of decentralization.21 However, the issue of consistency as a unitary state and applying this decentralization model based on historical perspectives remains immature.
Simply put, in the autonomy of the authority between the center and the region, including issues such as how government administration is distributed or how regional household affairs are determined.
This criterion will reflect a degree of limited or extensive autonomy.
It is capable of being classified as having limited autonomy if: (1) First, Regional household affairs are classified categorically, and development is directed in specific directions.
20 Abdurrahman (Editor), Some Thoughts about Regional Autonomy.
Media Sarana Press, Jakarta.
1987, p. 56 21 Look inside M. Laica Marzuki, Take A Look in The Realm of Law, the Secretariat General and Registrar's Office of the Constitutional Court of the Republic of Indonesia, Jakarta, 2006, p. 161 22 While the usual broad autonomy departure from principle: all government affairs basically become (2) Second, If the supervision and supervision system is implemented in such a way that the autonomous region loses its ability to establish and manage regional households freely.
(3) Third, the financial relationship system between centers and regions raises issues such as the limitations of regions' initial financial capacity, thereby limiting regional autonomy.22 The emphasis on "broad autonomy," as described previously, is the primary impediment to the Indonesian state maintaining a (consistent) decentralization model.
This is because the principle of "extensive autonomy" was confirmed and codified in Article 18 paragraph (5) of the 1945 Constitution of the Republic of Indonesia, which states that "the regional government exercises widestic autonomy, except for government affairs that are statutorily designated as central government affairs."
Philosophically, despite the fact that understanding broad autonomy becomes a polemic of interpretations about the constitution and its implementation law, at least in terms of the decentralization system, the 1945 Constitution established a constitutional foundation in Article 18, Article 18A, and Article 18b.
The following principles are contained in these articles:23 a.
The state's recognition and respect for units of customary law communities (kesatuan-kesatuan masyarakat hukum) and their traditional rights as regional domestic matter, except determined as a central business.
In modern countries, more more if it is associated with the understanding of the country of welfare, government affairs cannot be recognized.
In Bagir Manan, Welcome to The Arising of Regional Autonomy, the publisher of the Law Study Center, Yogyakarta, 2005, p. 37 23 Bagir Manan, Opcit, pp.
5-6 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 168 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… long as they remain viable and in accordance with the community's development, as well as the unitary state principle of the Republic of Indonesia; b.
Regional principles regulate and administer government affairs in accordance with the autonomy and co-administration principles; c. The principle of operating with the maximum possible autonomy; d. The principles acknowledge and declare the existence of special and unique regional governments; e. The Representative Agency's principle is directly elected in an election; f. Central and regional relations must be conducted in an orderly and equitable manner; g. The principle of delegation of authority between the central and local governments must account for regional uniqueness and diversity; h. Financial relationships, public services, natural resources, and other resources between the central and regional governments are conducted fairly and in accordance with the law; and i.
Special or unique is the principle of recognition and respect for state government units.
Furthermore, understanding decentralization in Indonesia cannot be divorced from historical-philosophicalpolitical debates, as the experience of developing countries demonstrates that decentralization does not facilitate 24 Haryanto, ‘Future of Decentralization Politics in Indonesia: An initial study’, (2016) Volume 9 No.
2 Government: Government Journal, p. 115 25 Ni’matul Huda, Law of Regional Government, (Bandung: Nusamedia, 2010), p. 1 "development" or democratic outcomes.
The realization, numerous studies evaluating decentralization demonstrate that success stories about decentralization are uncommon and that decentralization is not an entirely effective strategy for poverty reduction.24 The level of implementation of regulations related to decentralization and regional autonomy historically since the beginning of the implementation of Law Number 1 of 1945 concerning the position of the Regional National Committee to Law Number 23 of 2014 concerning the Regional Government actually focused on the welfare frame of the community.
In accordance with the mandate of the 1945 Republic of Indonesia, the local government is authorized to regulate and take care of government affairs according to the principle of autonomy and co-administration.
Provincing of broad autonomy to the region is directed to accelerate the realization of community welfare through improving service, empowerment and participation of the community.
In addition through extensive autonomy, the region is expected to increase competitiveness by paying attention to the principles of democracy, equity, justice, privileges and specificity and the potential and diversity of regions in the System of the Unitary State of the Republic of Indonesia.25 Moh.Hatta has also confirmed the understanding of this regional autonomy exercised in the interest of welfare on the basis of popular sovereignty or populism 26 : “According to the people's sovereignty, the people have the right to determine their own fate not only at the government level, but also in each location (in the city, village and 26 Mohammad Hatta, Towards Indonesian independence: 1932-volume I, (Jakarta: Bulan Bintang, 1976), p.103.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 169 regions).
Each fellowship has its own governing body (such as Gemeenteraad Provinciale Raad, and others).
As a result, each segment or group of people becomes autonomous (creating and practicing its own rules and running the rules made by a higher board).
Thus, it is not just a large fellowship that has the right to determine his or her own destiny, but all people, as well as every region of the country or group of people.
Such details are critical, as the requirements of each region within a country vary.”.
Figure 2.
Decentralization concept in Indoensia Based on the Figure 2, it is illustrated that the decentralized model mandating the existence of autonomy in Indonesia is not a regional rape process which in the sense of independence (separate sovereignty) or autonomy cannot be interpreted as the absolute freedom of an area because autonomy is a process to provide a process To the area to be able to develop in accordance with the potential they have, thus autonomy must be meaningful as a way to optimize all local potential, both nature, environment and culture.
Furthermore, optimization is not exploitation, but a process that allows regions to develop themselves and change the lives of regional society to be better.27 27 M.R.
Khairul Muluk, Decentralization and Local Government, (Malang: Bayumedia Publishing, Cet 2, 2007), pp.10 28 Mardyanto Wahyu Tryatmoko, Mardyanto Wahyu Tryatmoko, ‘Democratization of Problems in The c. Sociological Sociologically, as previously discussed in relation to the historical-philosophical aspects, the decentralization problem was caused by the surrender of the implementation of the authority distribution mandated by Article 18 paragraph (5), which stated that "the regional government exercises the greatest autonomy, except for central goverment affairs."
Thus, in practice, the interpretation of the article's provisions frequently sparks controversy, particularly when it comes to enacting legislation that affects the decentralization model.
28 The context of Indonesia's holding model of decentralization, dubbed asymmetrical decentralization, which New Post-Order Era of Asymmetrical Decentralization’, (2012), Volume 38 No.
2, Journal of Masyarakat Indonesia, pp.
269-296 1945 Constitution Republic of Indonesia Decentralization Autonomy as widely as possible Legislation Public welfare Population sovereignty Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 170 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… resulted in the emergence of a system of autonomy with distinct characteristics based on special provisions, is analogous to special autonomy.29 In the context of Indonesia's decentralization model implementation, an introduction to the autonomy system, which has distinct characteristics and is governed by its own legislation, including Aceh Province, Papua Province, Jakarta Special Capital Region, and Yogyakarta Special Region.
As a result of Article 18B paragraph (1), the state recognizes and respects statutory special or special regional government units.
As a result, a variety of factors have been used to justify the issuance of policies that provide specificity for regional government organization.
For instance, Papua Province is a case study in terms of politics, economics, and natural resources.
These factors arose as a result of a failure of development during the New Order regime, which resulted in the emergence of repressive patterns in the context of welfare 29 Ibid.
30 Papua, is a province that is part of Indonesia not together with other regions.
Other areas have defaCto have become the territory of the Republic of Indonesia since August 17, 1945 or juridically from December 27, 1949 through the round table conference negotiations when the Dutch Government officially releases his colonies to the Government of the Republic of Indonesia, except New Gunea West or Irian Jaya, Now named Papua.
Papua became part of the territory of Indonesia after through the PEPERA (people's opinion) whose results were acclamation to join the Republic of Indonesia on August 15, 1969, and officially since November 19, 1969 became the 27th province, after the results of the PEPERA were received by the General Assembly UN.
The pepera held on August 15, 1969 was allegedly a source that supported the occurrence of conflict in Papua, in addition to the work contract conducted by the government with PT Freeport in 1967 which until now the conflict could not be completed.
In the era of the New Order, the approach to resolving conflicts in Papua was carried out by centralized and repressive ways by making Papua a military operation area, due to the strengthening of the OPM (Papua Independence Organization).
The conflict in Papua has not yet been over, although submission for the people of Papua, which would later undermine the purpose of Yatu community welfare decentralization.30 According to reports from the partnership team31 said that Papua was the most retarded province in Indonesia.
In 1997 prior to the Papuan crisis the poverty rate was reported to be above 50%, while the average national poverty rate was close to 14%.
Papua is Indonesia's province with the highest rate of poverty.
In 1999, the percentage of the Papuan poor population was reported to be 54.75%, maintaining Papua's status as the province with the largest poor population, followed by East Nusa Tenggara at 46.73% and Maluku at 46.14%.
In 2000, poverty was reduced to 41.80%, but remained the highest in Indonesia, followed by Maluku at 46.14% and East Nusa Tenggara at 36.52%.
Poverty and profound retardation in Papua were recognized as a failure of the New Order's approach to Papuan development.
In comparison to other after the collapse of the new Order of the central government used a more accommodating approach.
For example, President Abdurrahman Wahid, on January 1, 2000 has apologized to the Papuan people for human rights violations carried out by the army in the past.
The change in name of Irian Jaya became Papua based on the Decree of the Provincial Parliament of Irian Jaya No.
7 / DPRD / 2000 on August 16, 2000 concerning the return of Irian Jaya's name to Papua.
HLM this is a driving device for Papuan special treatment as an autonomous region.
Even during Gus Dur in power of the Morning Star flag could be raised beside the Red and White flag.
But in the future Megawati there was a ban on raising the Morning Star flag.
At this time the conflict was tapered, even leading to violence.
View Sulardi, 2011, Researching autonomy to strengthen the NKRI, evaluation of the implementation of special autonomy in the frame of four pillars of life and state "organized by the People's Consultative Assembly of the Republic of Indonesia (MPR RI) in collaboration with the Development Center for Regional Autonomy (PP Otoda) Universitas Brawijaya ( UB), Malang, December 5 2011, p 5 31 Agung Djojosoekarto, et al, Papuan Special Autonomy Performance, (Jakarta: Updates on the Partnership for Governance in Indonesia, 2008) Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 171 Indonesian regions, Papua has the most favorable environmental conditions.
Internally, this retardation is caused by five major factors, namely that when it becomes a part of Indonesia: 1.
The majority of Papuans live in conditions of retardation, or what academics refer to as primitivity; 2.
There is no adequate physical infrastructure in terms of transportation and telecommunications, even at the most rudimentary level; 3.
Low levels of welfare and health care as a result of a lack of education; 4.
The region's limited capacity for human resources to enter directly into "machine" development that has a "mode" of the community, as in Java and other more advanced kawasans than Papua; 5.
The lack of capability among the local elite ranks is a feature of a modern governance system.
As a result of the emergence of the objective conditions described above, the desire to provide special autonomy (asymmetrical decentralization) bolstered Papua's development commitments as reflected in Law Number 21 of 2001 concerning Special Autonomy for Papua Province.
According to the partnership team, there are several fundamental elements that comprise the law's content, including the following:32 1.
The arrangement of authority between the government and the Papua Provincial Government, as well as the specific application of authority in the Papua Province; 32 Ibid., p. 19 2.
Recognition and respect for indigenous Papuans' fundamental rights, as well as their strategic and fundamental empowerment; 3.
Implementing good governance: a) Participation of as many people as possible in planning, managing, and supervising government administration and development implementation, including indigenous representatives, religious leaders, and women; b) Implementation of development that is geared toward meeting the basic needs of indigenous Papuans in particular and populations in the provinces of Papua in general, while adhering to the principles of environmental conservation, sustainable development, and purely societal benefit; c) Government administration and the community's implementation of transparent and responsible development.
4.
A distinct and unambiguous division of authority, duties, and responsibilities between the legislature, executive, and judicial branches, and the Papuan People's Assembly (Majelis Rakyat Papua) as the cultural representative of indigenous Papuans endowed with certain powers.
In response to the issue raised above, special autonomy in Papua Province began in 2001 with the enactment of Law Number 21 of 2001 and Law Number 35 of 2008, which mandated the acceleration of development in Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 172 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… the provinces of Papua and West Papua.
The central government's implementation of the policy of special autonomy for Papua and West Papua is a form of accommodation made in order to alleviate various speculations that have arisen as a result of the Papuan people's dissatisfaction with the central government's and regional government's relations thus far.33 In contrast to Papua, which gained special autonomy as a result of development.
Aceh achieved special autonomy after years of self-separation characterized by armed conflict and identity politics.
This circumstance resulted in the initial reform through MPR IV / 1999 tap, which was realized in Law Number 18 of 2001 concerning Special Autonomy for the Province of Nanggroe Aceh Darussalam, being ineffective because it was not transformed by the Free Aceh Movement's (Gerakan Aceh Merdeka) power into the structure of modern government in the Unitary State of the Republic of Indonesia.34 Decentralization is primarily expected to reduce the disparity or economic divide between regions in Indonesia.35 However, this gap persists in reality for up to 75 years.
The following data demonstrate why decentralization has not yet succeeded.
The human development index is one indicator that can be used as a benchmark36 in each region.
In 2019 it can be seen dimensions, education, and decent living standards in the lowest five provinces, here are the data available:37 33 As stated by Vitelis Yumte as Chair of the People's Consultative Assembly of the West Papua Province releases that, the basic framework for the implementation of special autonomy is for the parties.
Special autonomy for the parties includes Papuan political elites and the House of Representatives and the President who viewed that Khusu autonomy is the solution.
If their point of view is a solution that must be confirmed in implementation.
Therefore in special autonomy policies must be given full authority to organize and build themselves with the potential.
In real terms this policy has not been sincere because it is influenced by the situation of political upheaval so that the substance made raises doubts by the central government.
In the Autonomy Law specifically loaded with various collisions so it is difficult in implementing.
This quote was taken from an interview with the Chairperson of the People's Consultative Assembly on November 16, 2011 34 The agrarian principal's fundamental regulations regulate certain specificities, including the Governor of Aceh, the People's Representative Council / Regency / City, the Local Political Party, the Guardian Nanggroe, the Recognition of Indigenous Institutions, Islamic Shari'ah, and the Sharia Court.
The Dictum stated that the government recognized and respected special or special regional government units regulated by law; Aceh is a special or special regional government unit associated with one of the characteristics of the Acehnese community's history of struggle: high fighting resilience and power; Lili Romli, Special Autonomy Policy and Implementation in Papua and Aceh, Yogyakarta: Center for Assessment of Data Management and Information, General Secretariat of the House of Representatives of the Republic of Indonesia, and Azza Grafika, 2012, p. V 35 ‘Economic Growth, Income Inequality And Decentralization In Indonesia’, (2016), Volume 20 No.
1, Journal of Kinerja, pp.
53-68 36 UNDP introduced the first human development indicators in 1990.
The United Nations Development Programme (UNDP) introduced a new concept for measuring human development called the Human Development Index (HDI).
Since then, the human development index has been included in the Human Development Report's annual report (HDR).
The HDI elucidates how residents can benefit from development outcomes in terms of income, health, education, and other facets of life.
37 Central Statistics Agency, 2019 Human Development Index Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 173 Table 1. of dimensions of growth, education, and standard of living in five provinces with the lowest human development index from 2017 to 201938 Provinsi Pertumbuhan Kesehatan Pertumbuhan Indeks Standar Hidup Layak Pertumbuhan Indeks Pendidikan 2017-2018 2018-2019 2017-2018 2018-2019 2017-2018 2018-2019 (1) (2) (3) (4) (5) (6) (7) Papua 0,49 0,64 1,19 1,25 3,27 2,02 West Papua 0,51 0,77 2,10 1,89 0,97 1,85 East Nusa Tenggara 0,67 1,01 1,46 1,31 0,97 1,60 West Sulawesi 0,54 0,54 1,64 0,92 1,59 1,42 West Borneo 0,52 0,76 2,10 1,00 0,64 1,22 Source : Seccondary Data, processed in 2021 According to the data, Papua and West Papua are part of five regions with low health indices, deplorable living standards, and the lowest levels of education.
Although papua has been granted special autonomy, it possesses a variety of specialized characteristics.
In addition to the human development index, we can also see how many poor people based on provinces, data issued by the Central Statistics Agency (BPS) in 2020 in semester 2 (September) there are still several regions that have quite high numbers in terms of population Poor at the provincial level, such as Aceh with 15.43%, Bengkulu with 15.30%, Maluku with 17.99%, West Papua with 21.70%, and Papua with 26.80%.
If we compare it with several regions in Java such as East Java and West Java numbers are also still above 10%, but if they see West Java the numbers are still better at 8.43.
Moreover, the figure will be very different if we compare it with the Special Capital Region of Jakarta, which is around 4.63%.
Based on the data, we can see that asymmetrical decentralization with 39 Provincing of special and special autonomy is still not maximally 38 Statistics Indonesia, Indeks Pembangunan Manusia 2019, Jakarta, pp 51-52 39 Central Statistics Agency, the percentage of poor people by province, https://www.bps.go.id/indicator/23/192/1/persentase-penduduk-miskin-menurut-provinsi.html , accessed on April 20 2021 to have an impact on welfare.
Even some areas on Java with a variety of more complete infrastructure and geographically closer to the center of power are still high in the figure of the poor.
The data presented also shows that massive development is still very thick in the capital city of the state with the high index of human development indices and the small percentage of the poor.
From this point, it is actually clearly one of the serious challenges that accompany regional decentralization and autonomy cars lies in the availability of administrative frames that are able to manage all local diversity because of the heterogeneity of society in Indonesia, both in the socialcultural background variant, economic potential, administrative capacity to be expanded in the charge certain political demands.
Although the space for pluralism in the Unitary State of the Republic of Indonesia is realized through the authority of regional autonomy, as specified in Article 18 of the https://www.bps.go.id/indicator/23/192/1/persentase-penduduk-miskin-menurut-provinsi.html Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 174 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… 1945 Constitution.40 However, when diversity is implemented, it creates a systemic problem and is frequently infused with political elements, making the angle of legal system analysis increasingly difficult to manage uniformly.
As a result, certain depictions of decentralization documentation in Indonesia that emphasize policy uniformity actually result in development gaps, as stated in an analysis of articles in Law Number 23 of 2014, which negates its broadest autonomy and adopts the same uniformity concept as New Order local laws.
Thus, based on the explanation above, it is possible to deduce the following: (1) Historically, the dynamics of the trial and error political of decentralization law in our constitutional system has experienced ups and downs, this is seen in Article 18 of the 1945 Constitutional Court explicitly stating that Indonesia is divided into large regions and small areas and has the right to take care of His own house is called autonomy.
(2) Politically, Indonesia has a decentralization model that is used and defined in the constitution according to the pressures and political situation.
(3) Regional autonomy in Indonesia was confirmed philosophically to be based on the principle of "broad autonomy," as stated in Article 18 paragraph (5) of the Republic of Indonesia's Constitution in 1945: "regional government operates with the greatest autonomy, except for government affairs that are statutorily designated as central government affairs."
(4) Sociologically, the serious challenges associated with regional 40 M Rifqinizamy Karsayuda, Establishment of Local Political Parties in The Unitary State of decentralization and autonomy center on the availability of administrative frameworks capable of managing all local diversity, owing to Indonesia's extreme heterogeneity, both in terms of social-cultural background variation, economic potential, and administrative capacity to express demands specific politics.
(5) Juridically, because regional autonomy is the essence of decentralization.
The implementation of regional autonomy experiences ups and downs and tends to not maintain its consistency based on the formulation of Article 18 of the 1945 Constitution.
Here means there are challenges in terms of juridical to find a meeting point between the historical aspects, philosophy, political and sociological to formulate the model of decentralization in the future.
A.
The Conceptualization of Regional Competency-Based Decentralization: The Challenges Raised by Indonesia's Local Government Law Based on the paradigmatic context of legal reform described above, one aspect that the author wishes to study and critique is the legal politics of regional competency-based decentralization as part of the concept of decentralization's transformation or evolution.
In contrast to Cohen and Peterson's interpretation, there is a section that details the evolution of decentralization as a concept and as a development tool.
Cohen and Peterson identified six distinct types of decentralization in their The Republic of Indonesia, (Malang: UB Press, 2013) Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 175 identification, which they also used as a classification and approach system:41 a. Decentralization form based on the origin of history The first approach categorizes forms according to their historical antecedents.
A historical perspective enables a specialist to emphasize the existence of four fundamental decentralization patterns: French, British, Soviet, and Traditional.
Cohen and Peterson argue that this classification system is oversimplifying and analytically deficient.
b. Territorial and functional decentralization of decentralization The second approach makes a distinction between decentralization forms and hierarchies and functions.
Territorial decentralization / region, in this view, refers to the delegation of goods and services to the public produced and provided centrally to units at the regional level in the government jurisdiction hierarchy.
While functional decentralization refers to the transfer of center responsibility to units under the government's supervision as well as to units outside the government's control, such as non-governmental organizations or private businesses.
c. Forms that convert to problems and values This approach identifies decentralized forms associated with the problems presented and the investigators' value-nial.
This approach is exemplified by the 41 Decentralization: A Sampling Of Definitions, Working paper prepared in connection with the Joint UNDP-Government of Germany WeLey decentralization project, which is committed to bringing more effective programs and development projects to rural poor communities.
The Berkeley group identified eight distinct types of decentralization, including the following:42 a. Devolution; b. Functional devolution; c. Organization of Interest; d. Deconcentration prefectation deconcentration at the level of minister; e. Delegation of authority against autonomous agents; f. Generosity or philanthropy; and g. Marketization / Marketing Process.
The Berkeley group was not interested in illustrating a variety of larger general issues associated with the concept of decentralization when they formatted this collection.
This group is devoted to the examination of various relationships between the center and the surrounding area on a sector-by-sector basis (a sector-bysector base).
By examining this relationship, they develop a distinctive set of shapes that ensure, project by project, that the development intervention demonstrated is extremely vulnerable to rural communities and threats to it perpetrated by the Central Apparatus and area elites seeking their own interests.
d. Form of service provision evaluation of the UNDP role in decentralization and local governance, October 1999 42 Fajlurrahman Jurdi, Indonesians Constitutional Law, (Jakarta, Kencana, 2019), p 441.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 176 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… This approach focuses on the pattern of administrative or government structures and functions that are responsible for the production and provision of collective services.
This strategy distinguishes four types of decentralization: Regional Government Systems, Partnership Government Systems, Dual Government Systems, and Integrated Government Systems.
The disadvantage of this approach is that it is analytic in nature, which is in conflict with the increasing diversity of structural and functional design over the last few decades.
e. Form of state single experience This approach exemplifies the narrow definition of decentralization that is based on a single country's experience.
Delegating responsibility, power, and resources to the central government, in this view, does not constitute decentralization.
Decentralization, on the other hand, occurs only when the local government: (1) is formed by law, in the form of a charter containing legal provisions, which is defined as a government formed by law with the right to sue and be sued; (2) is a sense of community, consciousness, and solidarity located within jurisdictional bonds that have a clear limit; (3) is governed by officials and apparatus elected at the regional level; (4) creates and administers official ordinances or regional regulations governing the functions of public sectors; (5) officially collects taxes and other revenue in a legal manner; and (6) attempts to strengthen and to manage the budget, expenditure, and financial calculation systems, as well as to compensate employees, including those in charge of security.
f. Form of decentralization based on purpose The approach divides decentralization into four categories based on their objectives: politics, space, market, and government.
This strategy then focuses on three distinct forms of administrative decentralization: deconcentration, devolution, and delegation.
Political decentralization refers to the delegation of decision-making authority to citizens or selected individuals.
Decentralization of space is a term used by regional planners to describe policies and programs aimed at reducing excessive concentration of urban communities in a large city by promoting regional growth poles with the potential to become marketing, industrial, and agricultural centers.
Market decentralization focuses on the establishment of diverse conditions that allow for the production and provision of goods and services through market mechanisms that are sensitive to the choices made by individuals.
This type of decentralization has become more prevalent in today's trend toward economic liberalization, privatization, and the abolition of the guided economy.
Decentralization Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 177 allows for the production and provision of goods by small and large businesses, community groups, voluntary personal associations, and non-governmental organizations, among others.
While administrative decentralization is concerned with the distribution of hierarchical and functional authority between the central and local governments.
The emergence of decentralized forms is based on relationships in the form of authority, responsibility, and resources being transferred from the central government to local governments or other social organizations.
In other words, the nature of the relationships between goals and objects, as well as the delegation of authority and responsibility, are all determinants of the decentralization form.
To illustrate this, consider the following figure of the nature of relationships and decentralization forms.
Figure 3.
Decentralized forms Source: secondary legal material, processed 2021 Measurements regarding the level of implementing decentralization in a country can be taken through measurement of "decentralized degrees".
Determining the degree of decentralization can be determined through several factors.
These factors are the basis for the author in formulating regional competency-based decentralization points, including: (a) First, the degree of decentralization can be seen from the function or affairs run by the local government.
The more functions that are Government: Central Government Partnership Civil Society Organizations Delegation Special Agent Privatization Private Sector Deconcentration Units around The Central Government Devolution Regional Government Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 178 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… experienced, the higher the degree of decentralization.
(b) Second, it is the type of function of function.
In this case there are two types, namely the type of deelegation of General Competence and UltraVires Doctrine.
If a regional government has a function of the General Competence delegation, it can be considered a greater decentralization.
(c) Third, it is the type of central government control over the local government.
If the control carried out by the government is more repressive, the degree of decentralization is greater than it is preventive.
(d) Fourth, it is related to regional finance related to the extent of decentralization to determine or decide both in terms of revenue and expenditure of local governments.
(e) Fifth, it is the method of establishing a local government.
Decentralization degrees will be higher if the regional authority source comes from legislative decisions, not from executive delegation.
(f) Sixth, it is regarding the degree of financial dependence on the local government against the central government.
The greater the percentage of financial assistance from the central government compared to regional original revenues, the higher the dependence which also leads to the low degree of decentralization.
(g) Seventh, it is the magnitude of regional government areas.
There is 43 Ibid., hlm 18-19 an assumption when the increasing area is the greater the degree of decentralization, because local governments can overcome the dominance of power from the central government.
(h) Eighth, it is a political factor of the party.
If politics at the local level is still dominated by national political organizations, the degree of decentralization is considered low compared to politics at the local level dominated by local political parties.43 The eight decentralized descriptive measurement factors served as the primary determinant of regional competency-based decentralization.
Decentralization in Indonesia is based on international experiences, which are then elaborated in the constitutional articles.
To optimize the legal politics of decentralization in Indonesia, it is necessary to conduct decentralization conceptualization, bearing in mind Cohen and Peterson's view that the concept of decentralized degree of decentralization is influenced by: a small / or a large number of authorities, the conditions of regional government, government function, and regional financial authority.44 These factors are the basis for the capacity-based decentralization and regional competence, one of which has been opened in the provisions of Article 31 and Article 48 of Law Number 23 of 2014 concerning the Regional Government that in the implementation of the decentralization is carried out by the regional settings for: a. ensuring the effectiveness of regional government implementation; 44 M.R.
Khairul Muluk, The Concepts of Decentralization and Government, (Itspress, Surabaya, 2009), p. 14 Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 179 b. accelerating the growth of community well-being; c. accelerating the process of enhancing the quality of public services; d. enhancing the governance quality; e. enhancing national and regional competitiveness; and f. preserving the uniqueness of regional customs, traditions, and culture.
Regional arrangements may take the form of regional formation or regional reorganization.
Indeed, according to Cohen and Peterson, Law Number 23 of 2014 on Local Government has paved the way for the development of decentralization models based on how the area was formed.
It is simply that it is still limited to the aspects of regional formation and regional adjustments that are discussed in detail in the articles and does not include the competency-based decentralization model or regional capacity.
On the other hand, this regional competence cannot be divorced from the consequences of autonomy, as defined in Article 18 paragraph (1) of the 1945 Constitution, which provides that the provincial government, district regions, and cities regulate and manage government affairs in accordance with the principle of autonomy.
The competency of this area can be described in terms of regional competency parameters within the framework of regional government, which is composed of several elements based on the initial viewpoints desired, such as: a. Geography, including: the location of the capital; hydrographic; and disaster insecurity; b.
Demographics, including: quality of human resources; and population distribution; c. Security, including: General Criminal Action; and social conflict; d. Socio-political, custom, and tradition, including: community participation in general elections; social cohesiveness; and community organizations; e. Economic potential, including: economic growth; and the superior potential of the region; f. Regional finance, including: original regional income capacity; potential original income prospective preparation area; and financial management and regional assets; g. Government organizing capabilities, including: accessibility of basic education services; accessibility of basic health services; accessibility for basic infrastructure services; The number of state civil apparatus employees in the parent area; and design planning spatial plans for the preparation area; According to the competency-based decentralization paradigm and the area's capacity, this is actually a form of decentralization that is currently occurring in Indonesia, namely asymmetrical decentralization.
Where the decentralization model is as stated in the sociological foundation, resulting in the concepts of special autonomous regions, administrative areas, and special regions.
Where these conditions frequently arise as a result of political and social pressure.
Thus, the presence of capacity-based decentralization and regional competence creates an alternative model for regional government management that prioritizes local development without resorting to political pressure or social conflict.
The following table illustrates the distinctions between asymmetrical decentralization, capacityBrawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 180 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… based decentralization, and regional competence: Table 2.
Capacity-Based Decentralization Concepts and Regional Commerce with Asymmetrical Decentralization are Summarized.
INDICATOR ASYMMETRIC DECENTRALIZATION DECENTRALIZATION-BASED CAPACITY AND REGIONAL COMMITTANCY Deeper aspects Korbinwas, Politics, Authority, Institutional, Finance Korbinwas, Politics, Authority, Institutional, Finance Shape / Output  Special Autonomy: Special Regions and Special Regions  Aceh,  Papua,  West Papua,  Special Capital Region of Jakarta, and  Special Region of Yogyakarta Kluster of the immediate area: Group A area Group B area.
Group C area.
Cause / Input  Conflict of Interest  Demands / Submissions of Asmetrical Forms Noted for The Elements.
 Geography;  Demographics;  Security;  Social politics, customs, and traditions;  economic potential;  Regional Finance; and  Government administration capabilities.
Legal basis Relational Article 18, Article 18A, Article 18B Hirarchical relational 1.
Preamambule, 2.
Article 1, 3.
Article 18, 18a, 18b (Regional Government) 4.
Article 23 (Finance); 27 (Tenaker); 28 (ham); 29 (religion); 31 & 32 (dikbud); 33 (Economy); 34 (poverty) Source: Primary legal material, processed 2021.
During the transition period from centralized to decentralized government, each region, whether provincial, district, or city, must exercise as much regional autonomy as possible.
According to Solichin Abdul Wahab, the nature of regional autonomy is the capacity to create a large public space conducive to the emergence of community participation, not only passively, 45 Solichin.
A. Wahab, The Future of Regional Autonomy: Social, Economic, Political Studies, to where participation is determined by the power structure (and thus is not participation, but mobilization), but also actively, where society fully understands its needs, then chooses, formulates, and strives to be achieved.45 In the future of political decentralization, it will at the very least have a more systematic picture of not just Create Synergy in Regional Development, (Surabaya: SIC Publishing, 2002), pp.
iii Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 181 administrative autonomy indicators, but also of potential based on social-cultural background variants, economic potential, and administrative capacity to be expressed in the charge of other political demands.
At the very least, a decentralization model based on regional capacity can provide regional autonomy in regulating its natural resources.
This regional competency base also serves as the foundation for determining whether regions operating on autonomous frames are capable of pursuing backward development and welfare retardation in accordance with their capacity, not with a model approved by the central government.
To begin, the author's concept of regional competencies is to adopt regional feasibility and competency assessments in accordance with Law Number 23 of 2014 on Regional Government.
Despite the analogical interpretation of the terms "Regional Competency" and "regional expansion / adjustment," the initial design of the region's expansion / incorporation into the regional arrangement scheme is philosophically sound.46 The implementation, both regional competencies and regional expansion / adjustments, is related to the prudential principle, the organization of natural asset maps and natural resources, the maintenance of public relations, and the assessment of potential horizontal-vertical conflict.
These assessments were made on the assumption that future expansion / adjustment of the area would be able to make it competent or incapable of accommodating the formatted otnomy in the Indonesian legal system.
On the other hand, the regional arrangement model exemplifies decentralization in action,47 where aiming: 46 Academic Manuscripts of Law 23 of 2014 concerning Local Government a.
"Determining the effectiveness of regional government implementation; b. increasing community welfare at a faster rate; c. accelerating the process of improving the quality of public services; d. enhancing the governance quality; e. enhancing national and regional competitiveness; and f. preserving the uniqueness of regional customs, traditions, and culture.” The disadvantages, in terms of regional expansion / adjustment, are that there is no authentic nomenclature for "regional adjustments" based on legislation.
The illustration of the befunctional adjustment is solely for the purpose of: a. regional; b. change of regional names; c. giving names and changes in the name of the form of earth; d. the transfer of the capital; and / or e. changes in the name of the capital city.” As a result, the aforementioned concept of regional adjustments effectively ends regional competency-based decentralization, as anticipated by Article 18 of the Republic of Indonesia's 1945 state law.
As demonstrated above, the political politics of regional competency-based decentralization can be interpreted philosophically, sociologically, and historically, as evidenced by the presence of several models of parameters required in decentralized settings, including geographic parameters; demographics; security; socio-political, custom, and tradition; economic potential; 47 See article 31 Act Number 23 of 2014 concerning Local Government Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 182 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… and regional finance.
As a result, amendments to regional government laws are required to incorporate the principle of broad autonomy and to provide a classification of decentralization models based on regional competency parameters affecting the extent to which the area's task and authority and the appropriate policies / programs for the region's center are decentralized.
IV.
CONCLUSION Based on the research focus and the explanations that have been described by the author, it can be concluded that based on the analysis with historical, philosophical, and sociological approaches, it can be said that the implementation and development of regional implementation is strongly influenced by various aspects other than the legal factor itself.
Challenges to the development of decentralization implementation arrangements in Indonesia are possible to be based on regional capacity which is based on several aspects such as geography, security, socio-politics, economic potential, regional finance, government organizational capability.
This policy aims to enable decentralization to be carried out closer to local conditions in the regions.
A further challenge is regarding the regulation of the policy in the legislation.
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Khairul Muluk, The Concepts of Decentralization and Government, (Itspress, Surabaya, 2009) M Rifqinizamy Karsayuda, Establishment of Local Political Parties in The Unitary State of The Republic of Indonesia, (Malang: UB Press, 2013) Mohammad Hatta, Towards Indonesian independence: 1932-volume I, (Jakarta: Bulan Bintang, 1976) Muhammad Noor, Understanding Indonesia's Decentralization, (Interpena, 2012), Muhammad Yamin, Proclamation and Constitution of The Republic of Indonesia, (Gahlia Indonesia, 1982) Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… | 183 Ni’matul Huda, Law of Regional Government, (Bandung: Nusamedia, 2010) Sirajuddin and Et Al., Regional Government Administration Law, (Malang: Setara Press, 2016) Solichin.
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743-769 Statute The National Law of the Republic of Indonesia 1945 Law Number 18 of 1965 concerning Regional Government Principles Law Number 5 of 1974 concerning the Principles of Government in the Region Law Number 22 of 1999 concerning Regional Government Law Number 32 of 2004 concerning Regional Government Law Number 23 of 2014 concerning Regional Government Online Source Central Statistics Agency, the percentage of poor people by province, https://www.bps.go.id/indicator/23/19 2/1/persentase-penduduk-miskinmenurut-provinsi.html , diakses pada 20 April 2021 Other Central Statistics Agency, 2019 Human Development Index Decentralization: A Sampling Of Definitions, Working paper prepared in connection with the Joint UNDPGovernment of Germany evaluation of the UNDP role in decentralization and local governance, October 1999 Academic Manuscripts of Law 23 of 2014 concerning Local Government https://www.bps.go.id/indicator/23/192/1/persentase-penduduk-miskin-menurut-provinsi.html https://www.bps.go.id/indicator/23/192/1/persentase-penduduk-miskin-menurut-provinsi.html https://www.bps.go.id/indicator/23/192/1/persentase-penduduk-miskin-menurut-provinsi.html Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 184 | Prasetyo, Fadli, SN, Safa’at The Politics of Indonesia's Decentralization Law… Minutes of the Workers Meeting of the Republic of Indonesia's People's Consultative Assembly (MPR) 1945 People's Consultative Assembly of the Republic of Indonesia, 2002
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.03 59 THE ANALYSIS OF ISLAMIC ECONOMY IN THE CONSTITUTION OF INDONESIA Siti Hamidah1, M. Bakri2, A. Rahmad Budiono3, Bambang Winarno4 1 Doctoral of Legal Science Program, Faculty of Law, Brawijaya University, 2 Faculty of Law, Brawijaya University 3 Faculty of Law, Brawijaya University 4 Faculty of Law, Brawijaya University Email: hamidah@ub.ac.id Submitted : 18-01-2017 | Accepted: 22-2-2017 ABSTRACT The development of Islamic Economy has been flourishing in the life of Indonesian people and brings impacts to several aspects of life, including in the field of law serving as the juridical basis.
Indonesia is not an Islamic country.
Instead, it is a constitutional country that believes in one Supreme God and protects all people to practice their religions.
The sociological condition of the majority affects the formulation of law and constributes to the positive law which includes in it the issue on constitutional law.
This paper analyzes the flexibility of Indonesian’s constitution in adopting and providing spaces for Islamic Economy as well as becoming the foundation for Islamic economy to fulfill the need of the society.
Firstly, the analysis was conducted using theoretical approach viewed from the persepctive of the correlation between the state and religion, and the theory on legal pluralism.
Further, the 1945 Constitution of State of Republic of Indonesia (UndangUndang Dasar Negara Republik Indonesia/UUD NRI 1945), was analyzed to trace the basis of Islamic economy and to develop Islamic economy based on the Indonesian’s constitution.
Keyword: Islam, Economy, Constitution I.
INTRODUCTION International Conference on Islamic Economy that was held in Makkah in 1976 has become the birth of Contemporer Islamic Economy.
There is no doubt over the preposition that the science of Islamic Economy needs to be developed, implemented and evaluated through concepts, measurement, and standard as the product of ‘Islamic Framework’ that 1 Aslam Haneef, ‘Islamisasi Ilmu Ekonomi, Apa yang Salah?’, Thn.
II No.
6/Juli-September 2005, Jurnal Islamia, 46-52. involves the worldview and Islamic phylosophy.1 The development of Islamic economy has colored the life of Indonesian people and brings impacts in several aspects of life including that in the aspect of law which serves as the juridical basis for the implementation of Islamic economy.
The struggle exerted for the Islamic economy to be implemented formally has become part of every development of Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 60 history in Indonesia.2Feneer in his book Moslem Legal Thought in Moderm Indonesia states that the moslem leaders has since post-independence shared visions in order that Islamic Law can be implemented in the new country.
In the last decade, Indonesians have been exposed with issues on law and religion , with the spotlight directed to the implementation of Islamic law or syaria in the national law3.However, some obstacles come in the way of that struggle.
The first is the different views held by fellow moslems4, and the second is that the Islamic law has to deal with other values that have different principles from Islamic economy, such as the economy of capitalism.
Globalization has brought capitalims to be the winner.
This ideology entered noncapitalist country via the liberalization of financial institution, the decrease of government role in economy, and extensive integration in global economic system.
Malcolm Walters in Amer Al-Roubaie states that ‘the rise of capitalism presents macro global dimension.
Capitalism is a 2 Moh.
Mahfud MD, Membangun Politik Hukum, Menegakkan Konstitusi, (PTRajaGrafindo Persada, Jakarta, 2011) 265 3 Nelly Van Doorn (Harder Wake Forest University), reviewing book by R. Michael Feener, Muslim Legal Thougt in Modern Indonesia, (Cambridge, Cambridge University Press, 2007) in 13-.1, 2010, Journal of American Oriental Society, 132-135.
4 Caused by, among others, differences in the literal meaning and the contextual meaning from the text in Al-Qur’an or Hadits, as well as different form of effective production that brings distinct feature to its disciple in the form of power.
This power can be used to decrease or even eliminate the authorities of religion, politic, military, and other sources of power’.5 The exploration on history has shown that political obstacle influences the formalization of Islamic law in Indonesia so that it can be enacted in the society.
During Dutch Colonization, the political lawimplemented was the one in line with the interest of the colony through law unification in the colonized land.
Receptio theory replaced Receptio in Complexu theory that served as the basis for government policies in that era.
Consequently, there was conflict involving three legal systems: Islamic, traditional, and western.
The conflict continues to take place up to present.6 The majority of people in Indonesia are moslems.
However, Indonesia is not an Islamic country.
Instead, it is a constitutional country that believes in one Supreme God that protects each believer to strategies in the effort of implementing in the society.
5 Waters, Malcolm, Globalization, (London, Routledge, 1995) 36, in Amer Al-Roubaie, ‘Globalisasi dan Posisi Peradaban Islam’, year.
I No.
4/Januari-Maret 2005, Jurnal Islamia, 10-11.
6 Amrullah Ahmad, Dimensi Hukum Islam dalam Sistem Hukum Nasional, Mengenang 65 Tahun Prof. Dr. Bustanil Arifin, SH, (Gema Insani Press, Jakarta, 1996) 29.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 61 practice ther religion.
A country which upholds law is that whose every policy is based on the law or wellknown as religious nation state.
Religion becomes the esence over the law substance that is well complemented with ethics and morality.
However in reality moslems, as the majority, affect the positive law.
The sociological condition of the majority affects the formulation of law as well as contributing to the positive law, including constitutional law that serves as the highest law in a country and becomes the basis that is stated in UUD NKRI and Pancasila.
Islamic law posesses a good position in the context of UUD NRI 1945.
It is proven in Piagam Jakarta(Jakarta Charter) that outsets the preamble of UUD NRI 1945.
Even though ‘seven words’ previously contained in Piagam Jakarta (Jakarta Charter) have been ommited7based on presidential decree, it still influences UUD NRI 1945 and is an unseperable part of the constitution.8 7 7 (seven) words located after the word “God”, which were “dengan kewajiban menjalankan syariat Islam bagi pemeluk-pemeluknya”(by practicing Islamic rule for moslems).
Based on Soekarno, that clause was the result of agreement from both parties, and in each agreement is based on the values of ‘take and give’.
However it did not take long to delete them.
The meeting for amandement was based on the meeting attended by M. Hatta, Ki Bagus Hadikusumo, Wahid Hasyim, Kasman Singodemedjo and Teuku Hasan.
It was the biggest gift from Moslems to Indonesia for the sake of unity of the nation.
(See Hatta, Sekitar Proklamasi, page 57-59, in Endang ‘A Living Constitution’ is a statehood theory that is very popular in the United States of America.
It puts argument based on necessity and aspiration in order that constitution endures and corresponds with the development.
Chemerinsky states that if constitution relies merely on the intention to formulate law, that law will not be able to function to regulate modern society.
‘A Living Constitution is intended to ‘bring constitution to life’ by implementing constitutional norms in accordance with the conditions, values, and needs of the society.
Further David A. Strauss articulates that constitution will always develop, change, and adapt.
Constitution requires change in order to be able to survive longer.
There are several ways than can be done in actualizing constitution.
Among others are by formal amendment, judicial interpretation, and constitutional convention.
All of them refer to one intention that is to accomodate the change in society based on the condition and changing demands.
9Consequently, the Saifuddin Anshari, Piagam Jakarta 22 Juni 1945, Sebuah Konsensus Nasional tentang Dasar Negara Republik Indonesia (1945-1949), (Gema Insani Pers, Jakarta, 1997), 51.
8Rifyal Ka’bah, 2004, Penegakan Syariat Islam di Indonesia, (Jakarta: Khairul Bayan, 2004) 7 in Syahirul Alim (1997), above n.7, 8.
9Susi Dwi Harijanti, Menghidupkan Konstitusi Melalui Penafsiran: Perdebatan Antara Originalism dan Non-Originalism, in Penemuan Hukum Nasional dan Internasional, (Fikahati Aneska Press in cooperation with International Law Department , Faculty of Law Padjadjaran University, 2012) 584-586.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 62 change in society might lead to the demand of ammending the constitution.
M. Tahir Azhary introduces Teori Lingkaran Konsentris ( Concentric Circle Theory) through two concepts of thought.
The first is the western thought which separates state-law from religion.
State and law are free from the influence of religion.
The second is the Islamic thought in which religion, law, and state are unseparable unity.
He draw a concentrical cirle of the position of each component.
State is potitioned in the outer circle, law is in the middle and religion is located in the inner most circle.
State is in the outer circle and it means that state does not ‘enclose’ law and religion.
On the religious conflict that is prevalent in Indonesia, he states that religion is not supposed to disturb the stabilityof the state and law.10 The change of the demand of the society as well as the globalization of economy affect Indonesian’s constitution.
This paper aims at analyzing the flexibility of Indonesian’s constitution in adopting, accepting and providing place for Islamic Economy values, and find a strong base for its presence in Indonesia.
It is somewhat in line with the belief held by Mochtar 10Syahirul Alim (1997), above n. 7 11CFG Sunaryati Hartono,’ Upaya Menyusun Hukum Ekonomi Indonesia Pasca 2003’, (Paper presented in A National development Seminar VIII with the theme of Law Enforcement in Kusumaatmadja who says that one of the functions of law is to provide ways for development (politic, economy, law, and socioculture) of society.11.
This paper tries to find base and ways in approaching the ideal order as contained in UUD NRI 1945 to fulfill the need of the society.
II.
LEGAL MATERIALS AND METHODS The legal materials of this paper are primary and secondary legal materials.
Using the statute and conceptual approaches, this paper is divided into several parts.
The introduction employs the approach of theory of the correlation of state and religion.
It is so as Islamic economy cannot be separated from the teaching of Islam and law pluralism theory reflects the presence of two or more laws in one particular location.
The following part analyzes the constitution of Indonesia, UUD NRI 1945, in tracing the basis for the existence and development of Islamic economy in the constitution of Indonesia.
III.
RESULT AND DISCUSSION A.
The Correlation between State and Religion as the Basis of the Existence of Islamic Economy Sustainable Development Era, held by Badan pembinaan Hukum Nasional Departemen Kehakiman dan Hak Asasi manusia, Denpasar, 14-18 Juli 20030.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 63 based on the Constitution of Indonesia.
There are several thoughts in history in regards with the correlation between state and religion in this world.The first is the thought of theocracy12 which does not separate religion and law, and that politic is the embodiment of God’s direct or indirect commandment.
The second is secularism which states that religion is separated from states.
It includes in it the separation between the connection of men and world and the connection of men and God.
Positive law is disconnected from the values of religion.
In secular countries, states give freedom to their citizens to believe in religion and the state does not involve themselves in the matters of religion.
The third is Communism13.
Religion is human awareness before they found themselves and is considered as the fantastic realization.
Therefore, religion must be suppressed, or even prohibited.
Secularism brings logical consequences toward democrazy in Western Europe.
It alters the authority of God toward the people power.
Constitution 12Theocracy state or state with religion is a state that puts one of the religions as the basis in the life of the nation.
Some Islamic countries such as saudi Arabia, Brunei darussalam, Maroko etc claim themselves to be Islamic countries but apply different concepts.
However, the similarities that they share is that they use Al-Qur’an dan hadits as the supreme constitution.
See Nasaruddin Umar,Antara Negara dan Agama Negara, www.depag.go.id, no year, 2-3 .
has a role as a set of basic rules that frames the limit of government authority and the state accomodates the protection of human right.
Therefore, in the idea of constitutionalism, constitution is not the residual fucntion of the state’s authority.Instead it serves as residual function of freedom and humans rights that is handed over to the state.
It indicates that the size of the authority is based on the agreement of the citizens.
The demand of state’s authority limitation was previously innitiated by the philosopher who tended to represent the aristocat and borguise (for example in Magna Charta 1215 or Habeas Corpus 1689 in England).14 In Islamic countries, such as in Saudi Arabia, secularism is implemented by integrating religion and state.
Legislation is implemented to certain operational rules such as the law on international trade, immigration, and etc, in which the idea was first originated from the secular western countries.
Legislation of rules is done by considering religious factors even though the country has gone through politic modernization and secularization along 13 As one of the world ideologies, this thought was resulted from the reaction toward capitalism in the 19th century.
The communism and religion is related in terms that there is a strict limitation on them atter of religion applied to the citizens.
Communism believes that religion is a poison that will induce the citizens to think irrationally and unrealistically.
14Moh.
Mahfud MD (2011), above n.2, .268-269.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 64 with globalization process.
It is somewhat influenced by the characteristics of Islamic teaching which contains theological system of moral ethical standard and other norms of living in society.
Islam does not separate sacred and profane things so that it refuses separation of state from religion.
Consequently, secularism in Islamic countries does not eliminate religious orientation of the people.
Even, the adoption of secular system, such as the system of democracy and the enforcement of human rights, is done by providing religious legitimation through ijtihad and some adjustments.
Without this legitimation, those ideas will not get some supports.
Ijtihad is part of Islamic modernization in order to keep the teaching of Islam compatible with the development of modern society without getting off track from the absolut teaching of Islam (qat‘î).15 In the development of secularism theory, Peter L. Berger16refuses the theory of “secularization” and comes up with the theory of “desecularization of the world”.
Berger bases his thoughts on the fact that 15 Masykuri Abdillah, ‘Hubungan Agama dan Negara dalam Konteks Modernisasi Politik di Era Reformasi’, Volume XIII, No.2, July 2013, Jurnal Ahkam, 249.
16 Berger was born in Vienna, Austria, emigrating to The United States of America after World War II.
He graduated from Wagner College in 1949 with Bachelor of Arts title, and continued his study in New School for Social Research in New York (B.A in 1950, Ph.D. in 1952).
He started his career in Evangelische Akademie in Bad Boll, Germany.
secularism processes inflict reaction in the forms of powerful movements of countersecularization.
As a result, Berger believes that modernization does bring influence on secularism but at the same time results in cntra movement called desecularism or religious fundamentalism.17 In Indonesia, the relation between state and religion is divided into two categories: antagonistic and accomodative.
As a country that is not based on a certain religion and is not secular either, the concept of correlation between state and religion in Indonesia is integrated.
State is not a political and religious organization.
State serves as political and religious organization at the same time.
Based on the symbiotic paradigm, the correlation between state and religion is perceived to be in need of one another.
Religion needs the state as an instrument in preserving and developing religion.
In return, the state needs religion to help it control the morality, ethic and spirituality.
Religion also functionas as motivator.
In 1956-1958 and Boston College.
In 1981 he earned his profesor in Sociology and Theology from Boston University, and since 1985 he had become the director of Economic Cultural Study Institute, which later known as the Institute of Culturem Religion and World Issues.
17 Peter L. Berger et al., The Desecularization of the World: Resurgent Religion and World Politics, (Washington DC: Ethics and Public Policy Center, 1999) 1-4.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 65 Armaidyin his disertation states that there is polemic on different arguments between politicians and some citizens in regards with the correlation between state and religion.
This issue needs to be analyzed for some reasons.
The first is to define to what extend can a state interfere religion matters.
The second is due to the emergence of some symptomps in society that reflect the western secularism.
The third is related with the problem of state type contextualization in which based on the history of nation state formation Indonesia is the most pluralist country in the world.18 In the reality of politic in Indonesia,Mahfud MD states that constitutionally Indonesia is not based on religion but Pancasila.
A Pancasila state is “religious nation state”, or a non religiousbased as well as non secular country.
Some call it as Theo-democracy.
In the history,some moslem leaders have tried to find formal ways to bring Islam as the foundation of the state.
The result came up that the foundation and the constitution of the state is the unity of the nation and Pancasila serves as the basis.19In regard with the ommition of seven words from 18 Armaidy Armawi, Pemikiran Filosofis Hubungan Negara dan Agama di Indonesia, summary of dissertation of Doctorate program of Philosophical Science, Master Program, Faculty of Philosophy Gadjah Mada University, Yogyakarta, 2009, pp 1-2.
Piagam Jakarta (Jakarta Charter), Moh.
Hatta stated that the spirit of Piagam Djakarta did not disappear.20In effort to implement Islamic law that is based on the current politic system, Moslems have to struggle to bring Islam becoming the frame of the political law so that the law in Indonesia can be influenced by it or if possible it can become the material of law.
Consequently, Moslems should struggle and take part in the program and process of national legalization.
Most importantly, Mahfud MD believes that Moslems have to struggle to make the Islamic law becomes the substantive values, not as a symbol21 The correlation between countries are reflected in the first and second principles of Pancasila.
The state is based on One Supreme God,justice and civilized humanity.
In the fourth main idea of the explanation on the preamble of UUD NRI 1945, Pancasila is not a secular country which separates state from religion.
Article 29 chapter (1) states that the state is based on One Supreme God.
Therefore, it is possible to realize Islamic economy based on constitution.
Every citizen in Indoesia gets freedom to practice their religion and is protected by the nation.
19 Moh.
Mahfud MD (2011), above n.2, 281.
20 Sekitar Proklamasi, page 69, in Endang Saifuddin Anshari, above n.7, xx.
21 Moh.
Mahfud MD (2011), above n.2, .
281-282.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 66 One Supreme God is a principal of Indonesia and becomes its final objective.
The final objective is not only the prosperity of the people.
Instead, it is One Supreme God itsself.22The third principle that is the unity of Indonesia indicates that there is no room for conflicts of religion: among religion as well as inter and intra believers.
Economic activity as a private activity in Indonesia has been familiar with pluralism in law since the Dutch colonialization era so that it is possible for Moslems to have specific rules governing economy that is adjusted with their interests.
B.
Law of Pluralism in Indonesian’s Economic Law Pluralism law has existed in Indonesia and is reflected by the divisions of citizens and law that applies to each of that division based on article 163 IS.
Up to present, pluralism law still applies especially in private law.
It also applies in economic law.23 The globalization from the west brings powerfull impact to economy.
22Armaidy Armawi (2009), above n. 18, 12.
23Economic law is the development of civil and trade law.it is an interdiscipliner and multidiscipliner situated between public and private laws, and a combination of dirreferent concepts of both public and private laws.
24 Pluralism in law is the implementation of more than one law systems in different areas at the same time.
A writing from Warwick John Tie, a senior lecturer in Massey, University of New Zealand who is interested in research on settlement of conflict in regard with this pluralism.
The idea that On the contrary, the needs of Moslems to live a life based on the rules of Islam needs to get attenion from the government.
The implementation of two different economic laws is possible to happen in a country.24 There are substantial differences of law, culture, and civilization perceived from western and Islamic perspectives.
From western perspective, culture is prone to change as response to social change.
Meanwhile, civilization in Islam has been set from the very beginning.
According to western point of view, Islam is part of a culture.
While in Islam, culture is defined by religion.
It means that Islam governs behaviour, ethical code, and moral code of human being.
One of the example is that Islam provides guidance and prohibition particular deed.
The freedom of human to enjoy Allah’s blessings cannot go astray from the rule of Islam.
Those set of rules are meant to gain happiness which includes spiritual elements that cannot be valued merely by materials because happines can only be obtained once there is a balance between world and ukhrawi.25 came up was “law is situated within the diversity of socioculture and not upon it”, the description of multicultural law surfaces from several dimensions replacing codification emphasis and power through exploration of alternative concepts based on social, democracy, and law empowerment.
Read Warwick Tie, Legal Pluralism Toward a Multicultural Conception of Law, (Ashgate Publishing Company, Old Post Road, Brookfield, Vermont 05036, USA, 1999).
25Amrullah Ahmad (1996), above n.6, 21.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 67 Global culture spread through globalization is the western culture that is intended to distribute homogenous products and being controlled by some parties.
Globalization promotes the interests of those particular parties.
This culture which is characterized by materialism can inflict riot and social conflict in non-western societies which have different culture and religious lives.26In this case, constitution should provide enough space as well as protection to citizens from conflicts triggered by globalism.
Tamanaha pays an extra attention on the importance of discussion about law pluralism.
Law pluralism is not a mere absence of coordination and the presence of overlap.
It instead brings the birth of authority claim due to the conflicting norms and orientation.
Potential conflict will come to individuals and groups of people who fail to distinguish which law is implemented.
Besides, conflict will be taken advanted from by certain people for their own interests.27 26 Waters, Malcolm (1995), above n.5,.
13-14.
27Brian Z. Tamanaha,’ Understanding Legal Pluralism: Past to Present, Local to Global’,v.30, 2008, Sydney Law Review, 375.
28Erman Rajagukguk,’Ilmu Hukum Indonesia: Pluralisme’, (Paper presented in panel discussion on the Dies Natalis of IAIN Sunan Gunung Djati, Bandung ke-37, 2 April 2005, 2-7) 29Griffitths distinguishes pluralism into two: weak legal pluralismandstrong legal pluralism.
Weak law pluralism is another form of law centralism.
Erman Rajagukguk says that, due to historical factors, pluralism in society and the position of Indonesia as part of global community makes it impossible for the uniform law to happen in Indonesia.
The development of globalization in economy and law was started from the spices trade which brought new law to this country.
At present, the economic globalization that leads to globalization in law has taken place in peace.
One of the examples is by means of agreement.
Therefore, there have been at least four law systems that live side by side in Indonesia lately:traditional law, Islamic law, “Civil Law” dan “Common Law.” As stated in the jargon of Bineka Tunggal Ika ‘diffeneces in unity’, the law system in Indonesia contains pluralism.
Law pluralism can boost the realization of national unity, economic development and social welfare.
Those three are the biggest issues that has been faced by Indonesia.28When analyzed based on the theory of Legal Pluralismfrom Griffiths, pluralism in Indonesia is included instrong legal pluralism, because those for systems of law have similar positions.29 Though claiming itself to hold pluralism, state law is still considered superior and other law are situtated below the state law hierarchy.Nation is a dominant law.
On the contrary, a strong law pluralism concept is the product of social scientist who based their view on scientific observation on the diversity of law is all groups within society.
All law systems are percieved equal in the society.
There is no hierarchy which consider a particular law has higher position.
Griffiths integrates the views from several experts into the law pluralism.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 68 The word ‘agreement’ shows the importance of harmonization between law systems in Indonesia.
Several attempts in the harmonization of law between systems can take place by finding the similarities from both.
In law, an agreement as the implementation of Islamic economy has to obey the rule of Islamic law and Civil code law.
It starts from article 29 of UUD NRI 1945 1945chapter (1) “the state is based in one supreme God”, and in chapter (2) “the state guarantees the freedom of its citizens to practice their religions”.
Therefore, Moslems have space to practice Islam including practicing economy based on Islamic teaching.
Business activity as part of muamalah is mubah or ‘allowed’ in Islam.
It means that each moslem is allowed to do what he/she wants as long as there is no prohibition on doing from the Al Qur’an dan Sunnah”.
This concept has similarities with the freedom stated in article 1338 Civil Code.
The freedom to make contract provides freedom to make any agreement as long as it does not contradicts with the rules.
Muamalah also does the same.
This harmony provides foundation for syaria financing to make agreement based on Islamic law in Indonesia by still abiding the They are the theory of living law from Eugene Ehrlich which contains the rules of law from normative arrangements, that is made contrast with state law.
John Griffiths, ‘What is Legal two different systems of law, both material and substantial, the procedures, and settlement of conflict when necessary.
However, the above mentioned explanation does not mean that there is no conflict in the law pluralism in Indonesia.
There are three main issues: national unity, economic growth, and social welfare.
The conflict of the intention of separating themselves from the state must be settled without involving violence.
That can be done by the equal distribution of economy and welfare.
Besides, conflicts of race and religion can take place at anytime and anywhere.
Economic growth becomes the second issue.
This problem can be solved if the government provides job vacancy by opening riel sector.
The third problem is how to improve the social welfare.
Law must become the solution in this diverse society and plural law.
Tt is so as law is actually a part of the development in politic, economy, social, and the philosophy of the state.
In formulating the law in Indonesia, we have to consider pluralism and diverse religions, traditions, society and law systems.30 C. Islamic Economy in The 1945 Constitution of State of The Pluralism?’, n.24 1986, Journal of Legal Pluralism, 1-55.
30Erman Rajagukguk (2005), above n. 28, 8-9 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 69 Republic of Indonesia (UUD NRI 1945) Constitution has a very broad meaning.
Some definitions that are similar to the definition of institution are Loi Cinstitutionnel, droit constitutionnel, Undang-undang Dasar (Basic Constitution), Qanun Asasi,Grondwet, dan staatregeling.
Even in the unwritten practice, other terms surface such as unwritten constitution dan constitutional convention.
However, on a daily basis the definition used is that by Brian Thompson, “a constitution is a document which containts the rules for the operation of an organization”.
A nation as an organization will have a manuscript called institution.31 Because constitution is the highest level of law, the objective constitution is to reach the highest goal.
Those goals are: 1. justice 2. order 3. the realization of the values of freedom, prosperity and welfare They are in line with the formulation of the objective of the nation stated by the founding fathers who formulates the constitution.32 In the formulation of UUD NRI 1945, there are explicit and implicit views and 31Jimly Asshiddiqie, ‘Konstitusi Ekonomi’, Kompas Media Nusantara, 2010, 3-5. fundamental values.
UUD NRI 1945serves not only as political constitution but also as economic constitution, and even social constitution.
The objective of the nation is stated in paragraph 4 of the preamble of UUD NRI 1945 that is , “protect the nation Indonesia, improve the social welfare, educate the nation, and participate in keeping the world in order based on the freedom, eternal peace and social welfare”.
UUD NRI 1945 as a constitution does not only manage departments in the state and the governmental structure.
It also rules economy and social welfare as stated in chapter 33 UUD NRI 1945.
Chapter 33 of UUD NRI 1945 becomes the foundation of Pancasila’s economy.
Therefore, for the Islamic economy, there are two articles that are important.
They are article 29 and 33.
Article 33 UUD NRI 1945 becomes the foundation of Pancasila’s economic system.
The economic constitution can be seen in chapter 33: 1) Economy is built as business for all that is based on the concept of togetherness.
2) Branches for production that is important for the nation and si correlated for the social 32 Ibid, 9.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 70 welfare is managed by the state.
3) Earth, water, and natural resources is managed by the state and is used fully for the welfare of the society.
4) The economy of Indonesia is practiced based on economic democracy with the principles of togetherness, justice efficiency, sustainable, environmental friendly, independent, while still maintainiing the national development and unity.
5) Further regulation on the implementation of this article is contained in the constitution.
Some important concepts that can be obtained from article 33 are: the concept of kinfolk, state suthority, social welfare, economic democracy, principle of togetherness, justice efficiency, sustainability, environmental friendly, independent, maintaining the unity of the national economy.
Article 33 and article 34 are contained in one chapter entitled National Economy and Social Welfare because both are closely 33Having Dutch educatinal background, Hatta knew exactly the weakness of capitalist economic system.
though some think that Bung Hatta was correlated.
Article 34 governs about the poor and homeless children, social welfare system, and poor society empowerment, as well as the state’s responsibility on providing health facilities.
This economic constitution must be refered to as substantial reference in making every policy throughout the process of economic development.
The entire economic policy in Indonesian context must refer and must not contradict with the economic constitution, UUD NRI 1945.
Some writings state that Bung Hatta’s ideas and thoughtsincredibly affect the content of Indonesian’s economic constitution.33Indonesian’s eonomic constitution is based on the characteristics of Indonesian’s culture as well as religion .
Though in terms of the wording the its influence is not strong, it has a strong influence in terms of materail, especially that are contained in article 33 paragraph (2) and (3) stating that ‘(2) production branches that are important for the state and are used for the people are managed by the state.
(3) Earth, water, and natural resources are managed by the state and are fully used for the welfare of the society’.
Article 33 paragraph (2) and (3) are in line with the teaching of Islam.
The affected by socialist system, the values of Islam remain strong in economic constitution.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 71 fundamental principal in the process of production is the economic welfare.
It is somewhat similar with the principal of economy of capitalism.
However Islam cannot neglect the social welfare which is related to morality, education, religion, etc.
Production system in Islamic countries is defined by objective and subjective criterias.
Objective criteria is reflected in the prosperity that is measured using money; subjective criteria is realized in the form of economy that conforms with AlQur’an dan Sunnah.34 Prosperity is related with ownership.
Therefore, there are several types of ownership in Islam.35 They are ownership based on individual, state, and religion.
As a system that stands on its own, Islam has provides explanation about the mechanism of how the ownership is obtained, how to maintain and develop the ownership as well as on how to distribute wealth among people in details through its law.
Thus, the law related with Islamic economy is developed based on common norms of Islamic economy (al-qawaid al-'ammah al34Muhammad Abdul Mannan, Teori dan Praktek Ekonomi Islam (Dasar-dasar Ekonomi Islam), translated by M. Nastanginfrom its original title :Islamic Economic: Theory and Practice, (Dana Bhakti wakaf, Yogjakarta, 1993) 54-55 35Ownership comes from the word “Milik” that is originated from Arabic “milk” which means “is willing to act freely toward it”, however, the word ‘milik’ can be defined as a barrier for others from doing.
The word ‘barrier’ means prohibiting others from using and act without the permition from the owner.
iqtisadi al-Islamyyah) which are: ownership (al-milkiyyah), mechanism on wealth management (kayfiyyah al-tasarruf fi al-mal) and distribution of wealth among people (al-tawzi' al-tharwahbayna alnas).36 The concept of individual ownership legitimation in Islam relies heavily on morality that is correlated with social matter.
Compared to socialism and capitalism, the concept of ownership in Islam has different basic thoughts.
Individual ownership is the basis of capitalism, and the ommition of which becomes the main target of socialism.
Islam maintains balance betwen contradicting matters.
It admits individual right, but it gives quarantee over distribution of wealth through the establishment of some institutions as well as via the moral notice.37There are some obstructions on individual ownership.
For example is the interests of people ingeneral.
State plays an important role in distributing health for the welfare of people.38 36A.
Azhar Basyir, Garis Besar Sistem Ekonomi Islam, (Yogyakarta: BPFE, 1987).
37Muhammad Abdul Mannan (1993), above n.34.
64.
38Further Manan articulates that there are 8 provisions of Islam that manage individual wealth by: 1).utilization of beneficial , by prohibiting people posessing unused pemanfaatan kekayaan, dengan adanya larangan pemilikan kekayaan yang tidak dimanfaatkan; 2).Pembayaran zakat, yang sebanding dengan kekayaan yang dimilikinya; 3).Penggunaan kekayaan yang berfaedah, yaitu Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 72 The essence of article 33 UUD NRI 1945 is based on the spirit of social, give the possesion of goods for public interest (such as natural resources) in thehand of the state.
Government holds the authority in managing the life of people in Indonesia.
Hence, it must posess legitimation and surveillance system.
It is in line with the teaching of Islam in which being fair is obligatory.
Surah al Hadiid (57:25) states that: “Surely, We send Our prophets with real evidences and we send them the holy book and scale (justice)so that human can be just.And We created iron that has power, is great and gives benefits to human being, and so that Allah knows who help His religion and His prophets even though (Allah) does not see it.
O Allah is the almighty and powerful.” There are three concrete things symbolizing the effort in maintaing unity in society; they are ‘holy book, scale, and iron’.
Holy book refers to ‘revelations’ which contain command and prohibiton.
Scale means justice, giving to others their rights, as well as the execution of sanction.
dipergunakan di “jalan Allah”; 4).Penggunaan yang tidak merugikan, baik bagi diri sendiri maupun orang lain; 5).Pemilikan yang sah, yaitu tidak melawan hukum; 6).Penggunaan tidak secara boros dan serakah; 7).Pemanfaatan sesuai hak; dan 8).Penerapan hukum waris yang tepat dalam Islam.
Manan, ibid, 65-72.
‘Iron’ symbolizes power, authority, discipline, legal sanction, and etc.39 Righteousness in wealth in Islamic economy is very important.
Prophet showed us the consequences of the unjust of wealth distribution in the society; at one side, abundant wealth will put faith and morality in danger, while on the other side, poverty leads the to kekufuran”.
So, Prophet was emphasizing on modesty.
The balance of perceiving wealth is for the sake the life now and after.
That is in line with statement by Prophet Muhammad: ”the best among you is those who do not leave the world for the life after, and it is better for human being not to give burden of others.”.40The last word refers to independence, prosperity that is initiated from each individual.
It is in line with the introduction of UUD NRI 1945.
Article 34 UUD NRI 1945 provides foundation for social welfare.
The principle of compassion and protection for the poor is a universally accepted principle in Islam, and is an unseparable part of wealth distribution in which it is the obligation of the state to manage and the implementation.41Islam organizes in details how to obtain the objectivity in fair 39 Afzalur Rahman, Doktrin Ekonomi Islam Jilid 1, Seri Ekonomi Islam No.
3, Edisi Lisensi, (Dana Bhakti Wakaf, Yogyakarta, 2005) 32-34.
40 Ibid, pp.
35-37.
41Mannan (1993), above n. 37, 87.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 73 distribution of wealth, both law or option, in the forms of suggestions and prohibition.42 IV.
CONCLUSION AND SUGGESTION Islamic economy in Indonesian constitution is possible to come into existence and develop.
Based on the theory of correlation between state and religion, Indonesia is not a religious country (based on a certain religion).
It is not a secular country either.
By refering to the first principle of Pancasila and article 29 29 UUD NRI 1945, it is the rights of Moslems in Indonesia to practice Islam including in the activity of economy, and it is the obligation of the state to assure it.
The law pluralism in Indonesia is not a problem because diversity is one of the characteristics of this nation and it becomes the challenge for the nation to solve this issue.
Article 33 UUD NRI 1945 is the economic constitution in Indonesia that owns Islamic economy values which have to conform with three rules of economy, they are: ownership (al-milkiyyah), mechanism of wealth management (kayfiyyah al-tasarruf fi al-mal) and distribution of wealth among human beings (al-tawzi' al-tharwahbayna al-nas).
42Afzalur Rahman (2005), above n. 39, 98.
REFERENCES Journal Articles Aslam Haneef, ‘Islamisasi Ilmu Ekonomi, Apa yang Salah?’, Thn.
II No.
6/JuliSeptember 2005, Jurnal Islamia Amer Al-Roubaie, ‘Globalisasi dan Posisi Peradaban Islam’, Thn.
I No.
4/Januari-Maret 2005, Jurnal Islama Brian Z. Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Vol.
30, 2008, Sydney Law Review, 375-411 John Griffiths, ‘What is Legal Pluralism?’, n. 24, 1986, Journal of Legal Pluralism, 1-55 Masykuri Abdillah, ‘Hubungan Agama dan Negara dalam Konteks Modernisasi Politik di Era Reformasi’, Volume XIII, No.2, Juli 2013, Jurnal Ahkam, 247-258 Books A Azhar Basyir, Garis Besar Sistem Ekonomi Islam, (Yogyakarta: BPFE, 1987) Afzalur Rahman, Doktrin Ekonomi Islam Jilid 1, Seri Ekonomi Islam No.
3, Edisi Lisensi, (Dana Bhakti Wakaf, Yogyakarta, 2005) Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 74 --------------------, Doktrin Ekonomi Islam Jilid 2, Seri Ekonomi Islam No.
3, Edisi Lisensi, (Dana Bhakti Wakaf, Yogyakarta, 2005) Amrullah Ahmad, Dimensi Hukum Islam dalam Sistem Hukum Nasional, Mengenang 65 Tahun Prof. Dr. Bustanil Arifin, SH, (Gema Insani Press, Jakarta,1996) Armaidy Armawi, Pemikiran Filosofis Hubungan Negara dan Agama di Indonesia, Ringkasan Disertasi Program Doktor Ilmu Filsafat, Pascasarjana Fakultas Filsafat, Universitas Gadjah Mada, Yogyakarta, 2009.
Endang Saifuddin Anshari, Piagam Jakarta 22 Juni 1945, Sebuah Konsensus Nasional tentang Dasar Negara Republik Indonesia (1945-1949), (Gema Insani Pers, Jakarta, 1997) Moh.
Mahfud MD, Membangun Politik Hukum, Menegakkan Konstitusi, (PT RajaGrafindo Persada, Jakarta, 2011) Muhammad Abdul Mannan, Teori dan Praktek Ekonomi Islam (Dasardasar Ekonomi Islam), diterjemahkan oleh M. Nastangin, Judul Asli: Islamic Economic: Theory and Practice, (Dana Bhakti wakaf, Yogjakarta, 1993) Muhammad Tahir Azhary, Negara Hukum: Suatu Studi Tentang Prinsip Prinsipnya Dilihat dari Segi Hukum Islam, Impementasinya pada Periode Negara Madinah dan Masa Kini, (Jakarta, Kencana, 2007) Peter L. Berger et al., The Desecularization of the World:Resurgent Religion and World Politics, (Washington DC: Ethics and Public Policy Center, 1999) Susi Dwi Harijanti, Menghidupkan Konstitusi Melalui Penafsiran: Perdebatan Antara Originalism dan Non-Originalism, dalam Penemuan Hukum Nasional dan Internasional, (Penerbit Fikahati Aneska bekerjasama dengan Bagian Hukum Internasional, Fakultas Hukum Universitas Padjadjaran, 2012) Syahirul Alim, Sejarah dan Konsep Pembaruan Hukum Islam Masa Kini di Indonesia, (Web Direktorat Jendral Badan Peradilan Agama Mahkamah Agung Republik Indonesia) Warwick Tie, Legal Pluralism Toward a Multicultural Conception of Law, (Ashgate Publishing Company, Old Post Road, Brookfield, Vermont 05036, USA, 1999) Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 75 Conference Paper CFG Sunaryati Hartono, ‘Upaya Menyusun Hukum Ekonomi Indonesia Pasca 2003’, (Paper presented at Seminar pembangunan Nasional VIII dengan tema Penegakan Hukum dalam Era Pembangunan Berkelanjutan, diselenggarakan oleh Badan pembinaan Hukum Nasional Departemen Kehakimam dan Hak Asasi manusia, Denpasar, 14-18 Juli 2003) Erman Rajagukguk, ‘Ilmu Hukum Indonesia: Pluralisme’, (Paper presented at Diskusi Panel dalam rangka Dies Natalis IAIN Sunan Gunung Djati, Bandung ke-37, 2 April 2005) Jimly Asshiddiqie, Konstitusi Ekonomi, (Kompas Media Nusantara, Jakarta, 2010) Muhammad Alim, ‘Asas-azas Hukum Modern dan Pengujian Peraturan Dalam Islam’, (Paper presented at Kuliah Umum Fakultas Hukum Universitas Muhammadiyah Yogyakarta, 2002) Nasaruddin Umar, ‘Antara Negara dan Agama Negara’, www.depag.go.id, tanpa tahun , diakses tanggal 11 Januari 2015, pukul 15.50.
Act Undang Undang Dasar Negara Kesatuan Republik Indonesia 1945 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 76
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.05 95 PHILOSOPHICAL VALIDITY, THEORETICAL, NORMATIVE AND EMPIRICAL PARADIGM OF GENERAL PRINCIPLES OF GOOD GOVERNANCE (AUPB) AS A REVIEW OF PRESIDENTIAL IMPEACHMENT Nadir1, Sudarsono2, Jazim Hamidi3, Muchamad Ali Safaat4 1Doctoral Candidate at Law Faculty of Brawijaya University 2Professor of Administrative Law at Law Faculty of Brawijaya University 3Lecturer of Constitutional Law at Law Faculty of Brawijaya University 4Lecturer of Constitutional Law at Law Faculty of Brawijaya University Email: mh_dira@yahoo.co.id Submitted : 17-02-2017 | Accepted: 20-03-2017 ABSTRACT Philosophical validity showed of the Principles of Good Governance (AUPB) as A review to Presidential impeachment, is a principle of AUPB that contains ethical normative values used as the foundation of good governance, clean and respectable, moreover to complement the shortcomings and ambiguities in law.
Technically, the application of AUPB by the judges of the Constitutional Court (MK-RI) can be approached through induction and deduction legal reasoning.
The method of implementing AUPB by the judges of the Constitutional Court (MK-RI) is accomplished by deductive at first, meaning that the special rules is focused more to the certain field of law, then these are deducted based on its basic rules and deducted again into the rules of substantive, and deducted again into the rules of cases.
After that, it starts to applicate the rules of case based on the concrete case by the judge.
This paper seeks to analyze whether AUPB can be used as the basis for Presidential Impeachment in his tenure.
This paper argues that empirically AUPB is valid, it can be seen from the cases of impeachment against the President of the United States William Jefferson Clinton, on suspicion of "abominably act" (misdemeanors).
Additionally, AUPB empirically has been tested through jurisprudence since Amtenarenwet 1929 officially applied on March 1, 1933.
Centrale Raad van Beroep, in his verdict on June 22, 1933, and the jurisprudence verdict of Hoge Raad on November 13, 1936, and the jurisprudence verdict of Hoge Raad 1919.
While the normative validity is based on the leading legal doctrine, unfortunately, that AUPB is positioned as the unwritten laws that must be obeyed by the government, and AUPB considered as a part of positive law.
Keywords: Validity, Philosophical, theoretical, Principles of Good Governance, Presidential Impeachment Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 96 I.
INTRODUCTION The early introduction and development of of the Principles of Good Governance (AUPB) in the Netherlands can be traced through two (2) ways, scientific and practical arena.
In both ways, sometimes AUPB development is full of upheaval, grief, uncertainty and profound silence and blindness through times, so that eventually the development of AUPB entered into period of fertile and gains recognition.1 In the practical region, the initial introduction and development of AUPB can be tracked through jurisprudence and legislation as well as governance, so there must be a relationship between AUPB developments and those triple arena.2In jurisprudence, the initial introduction of AUPB starts from the shocking steps of the judges of civil servants and their first signs of civilian judges.
The jurisprudence of the judges of civil servants started since Amtenarenwet coming into force on 1 March 1929.
Centrale Raad van Beroep, in his verdict on June 22, 1933 regarding the affairs of state employees, said that he would not limit themselves to a lawsuit filed on the basis of the unwritten law and therefore the government should bound to the principles of common law.
Thus, the 1S.F.
Marbun, Asas-Asas Umum Pemerintahan Yang Layak, (Yogyakarta: FH-UII Press, 2014), 94 2Ibid.
96 decision Centrale Raad van Beroep provides new hope for the possibility of eligibility of principles in unwritten laws that had been inventoried by Boasson and Leydesdorff, though it is only limited to the principle of prohibition to act retroactively based on the position that has been set by law.3 In jurisprudence made by civilian judges, the early introduction of AUPB found since the decision of the Hoge Raad 13 November 1936 in the case of detention.
Hoge Raad in his verdicts shows clearly a violation of the norms of unwritten law in carrying or using public legal authority that is considered incompatible with the legal definition in Article 1401 BW.4 Then the subsequent development is marked by the birth of thought from Algemene Beginselen van Behoorlijk Bestuur proposed by the Commission de Monchy in Netherlands in 1946 and in 1950, Commission De Monchy reports its findings on "verhoodgde rechtsbescherming" named Algemene Beginselen van Behoorlijk Bestuur in the opinion of the author closely associated with the idea of birth state of law at the beginning of the 19th century which is a necessity for the actions of the arbitrariness 3Ibid.
4Ibid.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 97 of the King as head of state to oppose absolute power which gave birth to the State power which has oppressed people.
In 1952 the development of AUPB was refined by Samkalden and Wiarda in their advisers.
Wiarda began to formulate the criteria (division) AUPB as material principal and formal principal.
The principles that are material are principles that relate to the content of the decision, while the formal principles are principles relating to the preparation, formation and motivation of a decision.5 The application of Principles of Good Governance hereinafter abbreviated as (AUPB)6is suited as the review of Presidential impeachment in his tenure since in the state system of Indonesia it has never been done or used, even in the few countries in the world also has not been used as the basis of the review of Presidential impeachment or high-ranking officials of the country.
Though, the existence of AUPB is very important (urgent) in governance.
5 Ibid.
98 6Vide Article 1 point 17 of Law No.
30 of 2014 on Government Administration using the terminology "General Principles of Good Governance", hereinafter called "AUPB" and not the terminology AAUPB are principles used as a reference for the use of Authority for Government Officials in issuing Decision and / or actions in governance.
7In order to establish good governance, it requires at least a few things, namely: (1) it is importantd to be consistent and obey the norm for the government administration from the central to local officials.
(2) it requires a strong commitment The Paradigm of implementation of the Principles of Good Governance (AUPB) as the review of Presidential impeachment in his tenure is critical (urgent).
It is intended to assess the freedom of action of President so the President would not disobey the AUPB, because philosophicaly AUPB is a group of principles which contain the values of ethics-normative used as the foundation of good governance, clean7and respectable, moreover philosophically it can complement the possible shortcomings and ambiguities in the law.
This study was conducted to answer the legal issues, namely: whether AUPB can be used as the basis for Presidential Impeachment in his tenure.
In writer's opinion, the absence of AUPB as a tool of Presidential impeachment in his term, is a form of incompletely of norm that must be solved through research to contribute to a new thinking in establishing the paradigm of the Presidential impeachment of Indonesia to stop inappropriate acts beyond the authority set out by UUD as well as outside the UUD.
(3) it needs necessary awareness in building the nation to prosperity together with all elements of the nation and the mastery of science and technology as well as the vision and mission of Indonesia's independence set out in the preamble of UUD Indonesia of 1945.
(4) The President / vice President must avoid any inappropriate and not feasible act as a government administrator, including upholding the values of ethics contained and implied in AUPB, because the today's nation problem lies in the moral or ethical.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 98 inthefuture, because it raises the problematics, such as philosophical, normative, theoretical, political and social problems.
It causes by the determination of the formulation of legal norms Article 7A changes the phase 3 UUD 1945 of Republic of Indonesia does not reflect the spirit of the values contained in the General Principles of Good Governance (AUPB) which has taught the values of ethicsnormative.
II.
LEGAL MATERIALS AND METHODS This research method is a study of legal research.
The method aims to find the principle or the doctrine of positive law.
This type of research is commonly known as dogmatic study or generally known as the doctrinal research.8Selection of this type of research is corresponded to the legal issues, that is the law drafted in the form of legislation designed, built and enacted by the competent institutions, so the unwritten laws that are always evolving into the development of human civilization in accordance with principles which have universal values.
8Soetandyo Wignjosoebroto, Penelitian Hukum: Sebuah Tipologi, Masyarakat Indonesia Magazine first year No.
2 1974.
The approach used in this research is theoretic approach, statute approach, conseptual approach, historical approach, comparative approach, and philosophical approach.
The types and sources of legal materials, such as primary legal materials, secondary, and tertiary.
While the method of collecting legal materials is identifying and / or browsing relevant legislation, and then analying the data using an instrument theory, construction method and the amendment method and the results are presented in the form of an analytic descriptive or prescriptive analytics.
Therefore, the philosophical validity, theoretical, normative and empirical paradigm of AUPB is used as a review of the following the Presidential impeachment.
III.
RESULT AND DISCUSSION 1.
Philosophical validity and Theoretical Paradigm of Principles of Good Governance (AUPB) As Platform to Review Presidential Impeachment The President as head of state and government has broad authority and freedom to act and commit an act of law (rechtshandeling) as vrije beleidsregel that Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 99 was born from the principle of discretionary / Freies ermessen, or an action which is in contrast to the values of AUPB.
Broad authority and freedom of action can not be used indefinitely, even as a logical consequence of welfare state understanding, because one of the purposes of freedom of action is to complement the legal vacuum, but it must not contradict with laws and regulations and in accordance with AUPB.
If the actions of President is in contrary to AUPB, then the President (vrije beleidsregel), or action in the form of behavioral attitudes that contradict to the values of AUPB would be tested with AUPB and the President can be impeached from his tenure.
The legitimacy of government's actions based on SF.
Marbun, measured regarding to the authority set out in the legislation.
According to Sudarsono, the abuse of power, including the power (detournement de pouvoir) and acts of arbitrary (willekeur / abuse de pouvoir) is a phenomenon that has long time existed, also reminding on the importance of control over the use of authority itself, moreover with the presumption of validity (vermoden van rechtmatigheid = praesumptio iustae causa), which requires us to consider the valid act of government before any decisions or rulings that confronts it as in 9Ibid, 2 contrary.
This principle according to Sudarsono, can encourage a person to abuse their authority or acting arbitrarily, if controls on the use of authority itself is weakened or reduced.
In Indonesia, the control over the use of government's authority has been existed since long time ago, whether it is the builtin control, or external control; preventive control (a priori control) or the repressive control (a posteriori control); juridical control, political control, social control and another control which one of them is manifested in the State's administrative courts.9 Despite the existence of General Principles of Good Governance (AUPB) in Indonesia has not gotten a place in the UUD of Republic Indonesia 1945 juridically yet, but it can be qualified by one of the legal reasons about the Presidential impeachment, abominably.
The reasons of misconduct as the reason for the Presidential impeachment can be interpreted as diverse as: blasphemy, fornication, adultery, gambling and betrayal of the public trust.
According to Sjachran Basah, if AUPB going to be used as a review for judges of administration (constitutional judges in the Presidential impeachment, Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 100 cursive writer), must first be selected and adjusted to the values of Pancasila and the UUD of 1945 to be developed, that realization can be seen from the verdicts (which will become jurisprudence) of the Supreme Court as the highest institution of justice.10 Sjachran Basah also asserted, there should be a screening of the AUPB to conform with the values of Pancasila and the UUD 1945, when these principles will be applied to run in the Indonesian government.11 There are some General Principles of Good Governance (AUPB) referred to Presidential impeachment that are not suitable to be implemented, but some of the principles based on identification or selection results from writers were very heavy and massive like these following principles: 1.
The principle of prohibition to abuse the authority 2.
The principle of prohibition of arbitrary action 3.
The principle of Legal Certainty 4.
The principle Welfare / Happiness 5.
The principle of Unity and Integrity 10 Sjachran Basah, Eksistensi dan Tolak Ukur Badan Peradilan Administrasi Negara, (Bandung: Alumni, 1985), 257.
6.
Principle of Protection of Life Protection 7.
Principle of Honesty 8.
The principle of Shame (Al-haya ') 9.
Principle of Faith 10.
Ethical Principles Although it has not been accepted in a formal juridical of UUD 1945 yet, but the General Principles of Good Governance (AUPB) can be used as a review to Presidential impeachment in his tenure by the Constitutional Court (MK-RI).
Why it is so, because the judges of the Constitutional Court does not sufficiently guided by the provisions of any written laws in the Article 7A UUD 1945 of Republic Indonesia as a legal reason of the Presidential impeachment, but it needs to see the un-written law, Article 5 jo.
10 of Undang-undang Number 48 Year 2009 concerning Judicial Authority, asserted: "Judge and judges of constitution shall explore, and understand the values of law and justice in the society" "The court is not allowed to refuse to examine, hear and decide a case that is proposed with the reason that the law does not exist or is less obvious, but obligated to examine and judge it" 11 Ibid, 256.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 101 Epistemologically, provisions of Article Article 5 (1) jo.
Article 10 paragraph (1) Undang-undang Number Number 48 Year 2009 concerning Judicial Authority, shows the freedom for the judges of the Constitutional Court (MKRI), and became the basis for the use of AUPB as a review to examine the government's actions that are in contrary to AUPB in the perspective of the Presidential impeachment, besides to a written legal norms set out in Article 7A UUD of Republic Indonesia 1945.
According to Sudarsono, that epistemology is a way to get the right knowledge, so examining in depth all the business processes involved in gaining knowledge.12The Purpose of this paper is how to obtain AUPB as a review to impeach President through a deep process so it would be obtained a perfect AUPB.
In addition, Article 5 paragraph (1) (means the judges are obliged to explore the values and laws that exist in society) implicitly becomes the basis for the judge of Constitutional Court (MK-RI) to develop the AUPB contained in Pancasila as abstraction of social reality of Indonesian society.
Therefore, through jurisprudence of Constitutional Court 12I Dewa Gede Atmadja, Sudarsono, dkk, Filsafat Ilmu: dari Pohon Pengetahuan Sampai Karakter Keilmuan Ilmu Hukum, (Malang: Madani, 2014), 37 (MK-RI), Indonesian version of AUPB can be formed as the foundation of Indonesian Presidential impeachment review, as the identification result of AUPB by the author in the beginning.
Even in the United States, in its development, law does not necessarilymean a positive law issued by the legitimate authority in the form of written rules, instead a relationship patterns that have constantly and continuously performed in society and accepted as something that has to be done is actually the law.
Thus, law comes from regularities which come from facts or associations of the society itself (including AUPB in Indonesian context).
It is this conception of idea that underlies the birth of legal realism pioneered by Oliver W. Holmes with his idea of the life of law is not logic but experience.13 According to legal realism, the role of the judge is very important in deciding the case; he should not only rely on the positive law only, but also have to find the (real) law in the life of the society to be used as foundation of the decision.
It is this legal realism which then becomes the foundation of sociological jurisprudence study that conceptualizes the law as a form 13 FX.
Adji Samekto, Justice Not For All: Kritik Terhadap Hukum Modern Dalam Perspektif Studi Hukum Kritis, cetakan ke satu, (Yogyakarta: Genta Press, 2008), 23-24.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 102 of patterned, constant, continuous and accepted regularities as a necessity that must be done because it provides benefits for the life.14 The affirmation of Article 5 jo.
Article 10 mentioned above, it is possible that someday the AUPB will have and important/urgent position in Presidential impeachment in Indonesia in the future, therefore, the existence of AUPB need to be established through recognition in a written norm in Constitution of Republic of Indonesia Year 1945 that is formed by legislators, or can be through jurisprudence of Constitutional Court (MK-RI), in order to build the national legal system of Indonesia.
Stabilization (construction) of the principle of law (including AUPB) can function as:15 1.
As a bond between various norms of the law, which will ensure the integration of rules in a system bond?
2.
Ensuring the rule of law to be established and implementend according to the purposes of the law 14 Ibid,p.
24-25.
15 Bagir Manan, ‘Penelitian Terapan Di Bidang Hukum’, (Paper presented in Lokakarya Peranan Naskah Akademik Dalam Penyusunan Perundang-Undangan, held by BPHN, Jakarta, 911 November 1993), JazimHamidi, Penerapan (justice and rule of law), such as accuracy is for certainty.
3.
Ensuring the implementation flexibility of the rule of law in a concrete situation.
Implementation of the Principles of Good Governance (AUPB) as the foundation of impeachment review by the judgs of Constitutional Court (MK-RI) is very appropriate, although there is no explicit legal basis, however the paradigm of AUPB implementation as the foundation of impeachment review in its office terms philosophically is to fill the incompleteness, vagueness and emptiness of legal norm in Constitution of Republic of Indonesia Year 1945.
That, in addition to observe the provisions of Article 5 jo.
10 of Law of Republic of Indonesia Number 48 Year 2009 regarding the Judicial Power, it is essential to examine and judge the Presidential impeachment and/or vice President in his office term.
In this regard, Achmad Ali mentioned that what resolve disputes are not rule of law contained in the law, custims, treaties, jurisprudence, doctrine or law of religion.
Instead, what resolve disputes are “rule of Asas-Asas Umum Penyelenggaraan Pemerintahan Yang Layak (AAUPL) di Lingkungan Peradilan Administrasi Indonesia,(Bandung: Citra Aditya Bakti, 1999), 181.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 103 law which is born of the assessment of the judges.”16 Governments in taking action have to pay attention to the Principles of Good Governance (AUPB) as the foundation of action to avoid contradictin with it, because the Principles of Good Governance (AUPB) formed on the foundation of protection effort for the people as a parameter of action and principles in which should be done by the government, so that the government take action in accordance with the philosophical parameters outlined in AUPB.
Constitution of Republic of Indonesia Year 1945 Article 7A as a reason for presidential impeachment is not sufficient to provide answers for the complexitiy of government actions that require more material and formal legality when the rule of law as stipulated in the Law as the constitution of the country is unable to answer the legal, social, and political problems that arise because of the government actions which leads to violation of AUPB.
In such conditions, the Principles of Good Governance (AUPB) must be used as 16 Achmad Ali,Menguak Tabir Hukum: Suatu Kajian Filosofis dan Sosiologis, cetakanpertama, (Jakarta: Chandra Pratama, 1996), 141.
17 Philipus M. Hadjon, ‘Pengkajian Ilmu Hukum Dogmatik (Normatif)’, ‘, No.
6 Tahun IX November –Desember 1994, Yuridika , 12-14 solution as a guide and reference rules to review the President action, because of the extensive authority,so that AUPB can be used as foundation of presidential impeachment review in his office term.
According to Philipus M. Hadjon, the implementation of legal principles (including AUPB) by the administrative judge (by constitutional judges) in court technically can be approached by 2 (two) ways, they are: through induction and deduction legal reasoning.17 According to Sudarsono, induction method is a method that concludes the statements of observation results (specific) summarized from a more general statements or from observation of people to universal statement, this induction method was born from the empiricism way of thinking.18 While deduction method is a method of inference which processed from a continuous, logical statements, which illustrate general arguments then a conclusion specifically drawn, this induction method was born from the rationalism way of thinking.19 18I Dewa Gede Atmadja, Sudarsono, dkk, Filsafat Ilmu: dari Pohon Pengetahuan Sampai Karakter Keilmuan Ilmu Hukum, (Malang: Madani, 2014), 38 19 Ibid, 38 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 104 In induction method, the first step taken by the judge in handling the dispute is to formulate facts, look for a causal relationship and predicting the probability.
This was followed by deduction method, in which the first step is to gather the facts.After the factsare successfully formulated, law implementation effort is performed (legal principles).
The main steps in law implementation are identifying the rule of law.
The results of this step will be found in various legal conditions, such as: 1.
The existence of legal vacuum (legislation vacuum).
If this happens, then the judge will be adhering to principle of “ius curia novit”, the judge is obliged to explore legal values that live in the society.
This effort is often reffered to legal discovery method (rechtsvinding).
2.
There will be a condition of antinomy (conflict of legal norms).
The solution is principle implementation of "lex posterior derogat legi priori", principle of "lex specialisderogate legi generali", principle of “lex superior derogat legi inferior".
3.
In facing vague legal norms, the judge adhering to the legal ratio contained in the rule of law, and then set the correct interpretation methods.
4.
In the event of incomplete legal norms, then the solution is to use an amendment method (italics author) The process of implementing the law (including AUPB, italic writer) in the finalization process of Presidential impeachment in Constitutional Court, at least go through eight stages as follows: 1.
The first stage is request of filing Presidential impeachment by the Parliament to the Assembly, but first the request is submitted to the Constitutional Court for examination, trial, and decide the opinion of Parliament that the President has violated the law or in accordance with Article 7A Constitution of Republic of Indonesia Year 1945.
2.
The second stage is the stage of file examination.
Once the application file submitted by the Parliament to the Constitutional Court, then completeness examination of the file is performed, if the requirement is declared complete, then cases register is performed for scheduling of the trial, and a notice to the applicant in this case the Parliament.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 105 3.
The third stage is collecting facts.
Once the file assessment process is completed, then the next stage is the stage of legal facts examination.
In this position the judge of Constitutional Court perform a selection for the whole event and to prove with the evidence submitted by the applicant to ascertain the truth.
This stage in the civil procedure law is called constatized stage.
According to Sudikno, constantized means to see or acknowledge, justify the occurrence of events submitted to, or methodologically according to Jazim Hamidi, is included within the framework of inductive approach.
4.
The fourth stage, the stage of legal identification, at this stage the judge of Constitutional Court evaluate the legal facts or legal events that have constantized to determine how the application of the law (including the application of AUPB) for that event.
This stage in the civil procedure law called qualifying.
According to Sudikno, qualifying means finding outthelegal means to events that have beenconstantized, or methodologically according to Jazim Hamidi is included in deductive steps.
For the first step, the judge identifies the rule of law and performs interpretation of the rule of law that can be applied in concrete events.
Here the judge may apply the unwritteen rule of law in the form of AUPB to test the validity of government action, whether there has been a disagreement with AUPB or not, in addition to the violation of law that has been provided in Article 7A Constitution of Republic of Indonesia Year 1945 as written legal norms.
The results of law identification become an important part in the consideration of the judge in deciding this problem of Presidential impeachment.
5.
The fifth stage is the stage of determination (application of AUPB).
After the judge discover the main case disputed with examination and evidence presented as well as the facts of the law in court, and provide legal opinions on the application of AUPB, then at this stage, the judge determine whether the government's actions are contrary to AUPB or not, and which Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 106 principle is being violated, so that the President may be impeached from his office.
This stage in the civil procedure law called constitued.
According Sudikno, constitued means giving its constitution, set the relevant law to the one concerned, provide justice.
6.
The sixth stage is the stage of the decision.
After the judge set the law (determination of AUPB) against the government's actions that are contrary to AUPB, then the next step is the judge's ruling on the government's actions which are contrary to AUPB stated in the form of decision ofthe judge of Constitutional Court read in an open session to public.
7.
The seventh stage is the stage of submission of the decision of Constitutional Court.
After the judge set in the decision that was read in open session to the public for action that violate/contrary to the AUPB, then the next step is the Parliament held a plenary session of Parliament to forward the proposal for Presidential impeachment to the Assembly.
8.
The eighth stage is the stage of the decision of the Presidential impeachment.
The result of the plenary session of the Parliament submitted to the Assembly, and the Assembly held a hearing to decide the proposal for impeachment within 30 days from when the Assembly accept the proposal.
Assembly decision on the proposal for Presidential impeachment conducted in a plenary meeting of the Assembly that attended by at least 2/3 of the members present at the meeting, after the President delivered an explanation.
AUPB implementation methods in the process of Presidential impeachmentis first done in deductive, meaning that the special principle is devoted to the legal field concerned, then the basic rules are deducted of the law concerned.
Then, it isdeducted again to itssubstantive rules, and deducted again to thelaw of the case.
After that, the implementation of law of the case in concrete case is implemented by the judge.
Thus, to be able to apply the AUPB in concrete case, long and winding distances are stretched that have to be taken by the judge.
Paradigm of AUPB implementation as the foundation of Presidential impeachment review in Indonesia is a new paradigm in the repertoire of Indonesian Constitutional Law, because, according to John J.O.I.
Ihalauw, any theory or model is Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 107 constructed on the basis of particular paradigm.
Paradigm is a set of assumptions, expressed or implied that become the basis for scientific ideas.
Assumptions needed to be made because human capacity is very limited to be able to reap the complex and dynamic reality.20 Basing on the above argument, then the AUPB philosophically is valid as the foundation of Presidential impeachment review in his office term because AUPB is a principle that contains normative ethics value which is used as the foundation of good, clean, and respectable governance, to complete the lacking and vagueness of legal norms.
Moreover, the nature of the judges of Constitutional Court (MK-RI) is kholifah fil'ardi as the representative of God on earth to uphold the law and justice.
When there is a vacuum of law against concrete events, then the judge is not allowed to reject the case because the law does not exist, so he shall explore, follow and understand the values of law and justice that live in the society.
Essentially, the judge must become a mujtahid and become mujaddid/reformer in constructing the AUPB as the foundation of Presidential impeachment review.
20 John J.O.I.
Ihalauw, Konstruksi Teori: Komponen dan Proses, (Jakarta: Grasindo, 2008), 144 The theoretical validity of AUPB is posisitioned as a basis of Presidential Impeachment is presented as follows: 1.
The nature of the judges of the Constitutional Court (MK-RI) (ius curia Novit) as a verdict maker to perform legal discovery (rechtsvinding), as well as the creator of law, whether by statute, common law, jurisprudence, treaties and doctrines.
2.
The President has broad authority and freedom of action to determine policies called vrije beleidsregel used for the purposes of general interest (religus science welfare state understanding), and does not intended for personal or group interests.
Broad authority and freedom of action that cannot be used indefinitely, because one of the purpose of freedom and action is to complement the legal vacuum (vacuum of norm), but it must not contradict to laws and regulations and in accordance with AUPB.
The validity of the president's actions, measured according to the authority set out by the legislation.
If it is in contrary to AUPB, then Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 108 the actions of the President (vrije beleidsregel) should be examined with AUPB and the President can be impeached from his tenure.
Espousing the approach of AUPB as the basis for the Presidential impeachment, according to Mochtar Kususmaatmadja, the stabilization of the general principles of law including (AUPB development as the review of Presidential impeachment, cursive writers) can be done in two (2) ways:21 1.
It can be established in order to create national law through the process of legislation.
It is used for things that are general.
2.
In the implementation stage, the principles of law (including AUPB as the basis of review for conducting Presidential impeahment, cursive writer) can be established through yurisprudence (court decisions) (judgment of the Supreme Court, including the Constitutional Court (MK-RI, cursive writer) as the first door to examine the case of the Presidential impeachment, has special position and role, (as it will be a guideline for the House of 21Mochtar Kususmaatmadja, KonsepKonsep Hukum Dalam Pembangunan, edisi pertama cetakan ke-2, (Bandung: Alumni, 2006), 199.
22The explanation was quoted from Laporan Penelitian “Mekanisme Impeachment dan Hukum Representatives, cursive writer), so it should be really a good decision and not beyond reproach.
the decision (of the Supreme Court, including the Constitutional Court (MKRI, cursive writers) should be clear and not confusing.
This jurisprudence line is used for things that are specific and sensitive.
2.
Empirical Validity and Normative Paradigm of Gneral Principles of Good Governance (AUPB) As a Review to Perform Presidential Impeachment Empirically AUPB as the basis of review to Presidential impeachment has been valid, it can be seen on one of the facts of impeachment against the President of the United States William Jefferson Clinton, in which the case is popularly called as the sexual abuse scandal that carried Bill Clinton to an intern in the White House which was surfaced in 1998.
Initially Clinton faced the charges of committing immoral acts to Monica Lewinsky.
Clinton denies 'unnatural relations' with employees.22 Acara Mahkamah Konstitusi”, in relation toConstitutional Court of Republic Indonesia with Konrad Adenauer Stiftung, Jakarta, 2005,in http://www.mahkamahkonstitusi.go.id/public/co Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 109 However, during the process of investigations conducted by the House Judiciary Committee and assisted by independent counsel Kenneth Starr, the charge switched to the alleged commission of blocking or inhibiting the process of investigation by lying under oath.
Then on August 17, 1998, Clinton finally rectify his own statement to acknowledge his actions through national television station.23 Clinton's acts was judged by the House Judiciary Committee, as the act of lying under oath and then categorized as a "disgraceful act" (misdemeanors) as mentioned in Article 2 (4) of the US Constitution.
In this process, Clinton survived the impeachment he won the voting in parliament.
The disgraceful act as the reason for impeachment of the President can be interpreted in various ways, in perspective terminology of violating of criminal law, civil, administrative, and can be interpreted from the perspective of terminology of violating the ethics, and religion.
In the case of United States President, William Jefferson Clinton, in the opinion of the writer it is an act of ethical violations that are clearly degrading the President in his capacity as head of state and government, because he had an affair ntent/infoumum/penelitian/pdf/KI_Impeachment .pdf, accesed 10 September 2016. with another woman in the case of "immorality", so in the context of Indonesian, it can be qualified as AUPB violation, that is the principles of ethics in public view and disobeying the constitution as a qualifying form of the "disgraceful act" (misdemeanors).
The formulation of legal norms of "profesional misconduct" as the reason for the legal dismissal of the President in his tenure were interpreted as a reflection of actions degrading the President in the perspective of supervision.
It conducts an act relating to governmental actions or the actions of government as government administrators such as: discretion / Freies ermessen whicg produces vrije beleidsregel, so that the legal reasons "misconduct act" as an act of degrading can be classified into AUPB, so it can be used as a review to impeach President from his tenure.
Legal reasons of "abominably act" as an act of degrading President academically still poses multiple interpretations as described above in the writer's interpretation, especially in the perspective of ethics supervision (control of the ethic) to the President as the organizers and the government.
23Ibid.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 110 If the ethical-moral is enforced and upheld as well as taking it precedence over the norm of law, then the rule of law will be followed.
Ethics enforcement should be higher than the norm of law, because if the ethics is better, the other will be good too, but the problem happened in Indonesia since the norm of law is not brought closer to the ethical-moral even far from the moral, so that there is a "legal norms without meaning" UUD 1945 of Republic Indonesia is supposed to set the reasons carefully for the Presidential impeachment under Article 7A RI UUD 1945 of Republic Indonesia so it would no cause any ambiguity and rising to the multiple interpretations.
This is caused by all the president's actions that may constitute into degrading the President and it may also be associated with the formulation of legal norms of abominably act as the reason for impeach the President from his tenure wich is assessed suitable for AUPB, so that it can impeach President from his tenure.
In addition to the above case, empirically AUPB has been tested from the beginning, starting from the steps of the judges of civil servants and their first signs of civilian judges.
The jurisprudence of the judges of civil servants started from Amtenarenwet 1933 that coming into force on March 1, 1933.
Centrale Raad van beroep, in his decision on June 22, 1933 regarding the affairs of state employees, said that he was not going to limit themselves to a lawsuit filed on the basis of the unwritten law, therefore the government should bound to the principles of common law.
Thus, the decision of Centrale Raad van beroep provide new hope for the possibility to perform eligibility principles of unwritten laws that has been inventoried by Boasson and Leydesdorff, eventhough it is only limited to the principle of prohibition to act retroactivly to the position that has been set by law.
In jurisprudence made by civilian judges, the early introduction of AUPB found since the decision of the Hoge Raad 13 November 1936 in the case of detention.
Hoge Raad in his decision shows clearly a violation of the norms of unwritten law in carrying or using public legal authority and it is considered incompatible with the legal definition in Article 1401 BW.
In the normative validity shows that AUPB can be used as the basis for reviewing the Presidential impeachment from his tenure: 1.
Regarding to the legal doctrine suggested by eminent jurists, the General Principles of Good Governance (AUPB) placed as norms of unwritten laws that must be obeyed Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 111 and respected by the government.
It is derived from the values of Pancasila philosophy as an abstraction of reality of Indonesian nation before forming the State.
The General Principles of Public Pemerinthan Good (AUPB) is known as the Algemene Beginselen van Behoorlijk Bestuur and seen as the unwritten laws that must be obeyed by the government, before revoked dan reset in the Administrative Rechtspraak Overheidbeschikkingen that is abbreviated to Wet AROB, This is actually a government decree in administrative law by judicial authorities which has to deal with the general legal consciousness as it is prevailing principle of good governance..
According to Philip M. Hadjon, The General Principles of Good Governance (AUPB) can be regarded as rules of law which is not written, especially for making KTUN (public administrative decision) on matters of government wisdom.
This fundamental must no have contradiction between unwritten 24Philipus, M. Hadjon et.al, Pengantar Hukum Administrasi Indonesia, cetakan kesebelas, AUPB with the written law, and AUPB formulated as a principle.24 Then AUPB has been accepted that AUPB should be considered as an unwritten norm of law and it has to be obeyed by the government.
AUPB can also be called that the unwritten general principles of law, where for certain circumstances can beapplied.25Therefore, AUPB role complements the drawback and the vagueness of legal norms in the implementation of good governance and clean as well as authoritative, although it is very difficult to build good and clean governance.
2.
Based on the various laws and regulations, in fact AUPB in Indonesia incarnate in various legislations even though his name remained principle, others of AUPB still being as principles and not yet abstracted in the human soul The legal consequences arising on the basis of AUPB formulation as the review of Presidential impeachment in Indonesia, namely: 1.
Building the control function of legislative towards the President (Yogyakarta: Gajah Mada University Press , 2011), 268.
25 Ibid.
270.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 112 since he has capacity as head of state and government.
2.
Building a checks and balances system of government in order to create mutual effort to monitor and control each other.
3.
Creating a clean and respectable government in the administration of state government.
4.
Establishing legislation which has important implications for the livelihood of the community and nations.
5.
Maintaining the constitutionality of acts of the President in order to prevent the president acts beyond the constitution (the unconstitutionality of government's action).
6.
Maintaining the establishment of an effective government for the sake of the stability of the Unitary of Republic of Indonesia.
7.
Maintaining public trust as the owner and holder of sovereignty, because the president is elected directly by the people.
The legal implications for the implementation of General Principles of Good Governance (AUPB) as the review for the impeachment of President stated as follows: 1.
The juridical implications posed is General Principles of Good Governance (AUPB) can be used as a source of reference and rules guiding to impeach the President in his tenure for the acts or good deeds in the form of behavior or attitude which is filled into vrije beleidsregel as the product of desrcretion / Nach Freiesermessen or from Beoordeling vrijheid that are massive and substantive, it violates the principle of legal certainty, the principle of welfare, the principle of unity, the principle of the protection of life, the principles of honesty, principle of shame (al-haya '), the principle of trust, and the principles of ethical as AUPB , 2.
The values contained in the General Principles of Good Governance (AUPB) can be used as a source of reference and a guiding rule for the House of Assembly and the Constitutional Court (MK-RI) to take a stand to impeach the President from his tenure based on the proposal from the House of Representatives.
3.
The values contained in the General Principles of Good Governance (AUPB) can be qualified as a Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 113 material of legal source (source of legal discovery, a source in which the law was formed), while General Principles of Good Governance (AUPB) has not been accommodated in the UUD 1945 of Republic of Indonesia as a review to Presidential impeachment.
4.
The application of the General Principles Paradigm of Good Governance (AUPB) as as the review for Presidential impeachment, in his term, implicates the government to act honestly, so that the action will not harm the will of the people in general and Indonesia in particular.
5.
The General Principles Paradigm of Good Governance (AUPB) as a review to impeach Presidet from his tenure implicate the expanded functionality of the control DPRMPR against the executive organ (the President) and creation of the principles of honesty, and austerity act in governance and presidensiel system of Indonesia.
6.
The existence of General Principles of Good Governance (AUPB) as the review to the Presidential impeachment from his tenure is a new findings in this study, so it must be made known to the Assembly for further action in the structuring of amendment of Article 7A RI UUD 1945 of Republic Indonesia, in order to get a formal judicial position, or through a provision of the Constitutional Court.
7.
In his capacity as a principle, The General Principles of Good Governance (AUPB) can be classified and qualified as a source of substantive law, while its position in the legislation is being formalized, then it is placed as a formal source of law, the General Principles of Good Governance (AUPB) should essentially be used as a review to impeach President from his tenure.
IV.
CONCLUSION AND SUGGESTION Philosophically AUPB is valid to serve as the review to impeach President because the nature of AUPB as principle contains the values that form the basis of normative ethical-foundation of good governance, clean and respectable, to complement the shortcomings and ambiguities in the rule of law.
In addition, in its application based on the nature of judges (the Constitutional Court (MK-RI) is represented as kholifah fil'ardi as the representative of God on earth to uphold law and justice, and the nature, the judge must be a mujtahid and become mujaddid / reformer in constructing AUPB as grounding review to the Presidential Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 114 impeachment.
Theoretically AUPB is valid, because the nature of the judges of the Constitutional Court (MK-RI) ius curia Novit as a verdict maker performs legal discovery (rechtsvinding), in assessing the freedom of action that exist on the President in the form vrije beleidsregel or attitude which conducted in contrary to the AUPB.
Empirically AUPB as the review is already valid to impeach the President, it can be seen on the legal facts impeachment case against the President of the United States William Jefferson Clinton, beacuse of his "abominably act" (misdemeanors).
In addition to the above case, empirically AUPB has been tested from the initial introduction through the jurisprudence of the judges of civil servants starting from the entry into force of Amtenarenwet 1933 on 1 March 1929.
Centrale Raad van Beroep, in its decision June 22, 1933, and the decision of the Hoge Raad jurisprudence November 13, 1936 in the cases of detention.
While the normative validity is based on the leading legal doctrine, that is seen as the unwritten AUPB laws that must be obeyed by the government and AUPB considered as a part of the positive law, as well as a guide for government officials in making policy.
In addition, based on various legislation, in Indonesia AUPB incarnates in various legislations even though his name is still remained principle.
The suggestion proposed in this study the researcher found the urgent of general principles of good governance as a review, namely: To recognise the Principles of Good Governance as the basis for the impeachment review of President on his rule, it is recommended to make change for the fifth stage of the RI State Constitution of 1945.
REFERENCES Journal Articles M. Hadjon, Philipus.
Pengkajian Ilmu Hukum Dogmatik (Normatif), No.
6 Tahun IX November-Desember 1994, Yuridika Wignjosoebroto, Soetandyo.
Penelitian Hukum: Sebuah Tipologi, Masyarakat Indonesia No.
2 1974, Tahun Magazine1st Books Atmadja, I Dewa Gede, Sudarsono, dkk, Filsafat Ilmu: dari Pohon Pengetahuan Sampai Karakter Keilmuan Ilmu Hukum (Malang: Madani, 2014) Adji Samekto, FX.
Justice Not For All: Kritik Terhadap Hukum Modern Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 115 Dalam Perspektif Studi Hukum Kritis, ( Yogyakarta: Genta Press, 2008) Ali, Achmad.
Menguak Tabir Hukum: Suatu Kajian Filosofis dan Sosiologis, (Jakarta: Chandra Pratama, 1996) Basah, Sjachran.
Eksistensi dan Tolak Ukur Badan Peradilan Administrasi Negara.
(Bandung: Alumni, 1985)Hamidi, Jazim Penerapan Asas-Asas Umum Penyelenggaraan Pemerintahan Yang Layak (AAUPL) di Lingkungan Peradilan Administrasi Indonesia,(Bandung: Citra Aditya Bakti, 1999), 181.
Ihalauw, John J.O.I.
Konstruksi Teori: Komponen dan Proses.
Jakarta: Grasindo, 2008.
Kususmaatmadja, Mochtar.
KonsepKonsep Hukum Dalam Pembangunan, (Bandung: Alumni, 2006) M. Hadjon, Philipus et.al, Pengantar Hukum Administrasi Indonesia, cetakan kesebelas, (Yogyakarta: Gajah Mada University Press , 2011) Marbun, S.F.
Asas-Asas Umum Pemerintahan Yang Layak (Yogyakarta: FH-UII Press, 2014) Conference Paper Bagir Manan, ‘Penelitian Terapan Di Bidang Huku’ (Paper presented at Lokakarya Peranan Naskah Akademik Dalam Penyusunan Perundang-Undangan, BPHN, Jakarta, 9-11 November 1993).
Report Laporan Penelitian “Mekanisme Impeachment dan Hukum Acara Mahkamah Konstitusi”,Kerjasama Mahkamah Konstitusi Republik Indonesia dengan Konrad Adenauer Stiftung, Jakarta, 2005, dalam http://www.mahkamahkonstitusi.
go.id/public/content/infoumum/p enelitian/pdf/KI_Impeachment.pd f, accesed 10 September 2016 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 116
[59] Commencing Deep Seabed Mining: A Review on Law No.
3 of 2020 on Mineral and Coal Mining Evan Tobias Universitas Padjadjaran Email: tobiasevan06@gmail.com DOI: http://doi.org/10.21776/ub.blj.2022.009.01.05 Submitted: 2021-11-13 | Reviewed: 2022-03-01 | Accepted: 2022-04-27 | Published: 2022-04-30 How to Cite : Tobias, Evan.
2022.
“Commencing Deep Seabed Mining: A Review on Law No.
3 of 2020 on Mineral and Coal Mining”.
Brawijaya Law Journal 9 (1): 59-75. https://doi.org/10.21776/ub.blj.2022.009.01.05 Abstract: In 2020, the Government of Indonesia enacted Law No.
3 of 2020 on Mineral and Coal Mining, which amended Law No.
4 of 2009 on Mineral and Coal Mining.
Under this amendment, Law No.
3 of 2020 on Mineral and Coal Mining expands the definition of mining law territories, as stipulated under Article 1, number 28a.
This provision covers the mining law territories of the Indonesian archipelago, seabed area, and continental shelf.
This study explores the legal consequences of the term “seabed area” in Law No.
3 of 2020 on Mineral and Coal Mining, to determine whether the law paves the way for deep seabed mining.
Through normative and descriptive approaches, this study found that despite the broader definitions of mining territories, Law No.
3 of 2020 on Mineral and Coal Mining is insufficient to initiate deep seabed mining.
This is because seabed mining requires a detailed governance structure, especially on the rights and duties of every party involved.
Therefore, this paper recommends that the activity be regulated by a distinctive law that specifically addresses seabed mining.
Keywords: deep seabed mining, Law No.
3 of 202, mineral mining, coal mining, UNCLOS.
I.
Introduction Over the years, technological advancement has offered a better opportunity to reduce social and economic inequalities.1 The adoption of technology to boost business productivity also becomes a prerequisite for business actors to adapt in the midst of digital transformation.2 With the increasing 1 Kim Lessley, “How Tech Can Help Bridge the Equality Divide,” Forbes.com, 2020, https://www.forbes.com/sites/sap/2020/12/10/ho w-tech-can-help-bridge-the-equalitydivide/?sh=4257f60d174f.
2 Lessley.
3 “Mining and Metals: Digital Transformation and the Industry’s ‘New Normal,” World Economic dependency on technology, the demand for raw mineral resources to support the infrastructure has also increased.
This trend is estimated to account for a 7% rise of profit in worldwide mining and metals industries by 2025 and the demand is expected to increase up to 500% by 2050.3 Notably, the demand for various resources varies, with several minerals, such as graphite, lithium, Forum, n.d., https://reports.weforum.org/digitaltransformation/mining-and-metals-digitaltransformation-and-the-industrys-new-normal/; Hund Kirsten, Minerals for Climate Action: The Mineral Intensity of the Clean Energy Transition (Washington D.C: World Bank, 2020), 12. mailto:tobiasevan06@gmail.com http://doi.org/10.21776/ub.blj.2022.009.01.05 https://doi.org/10.21776/ub.blj.2022.009.01.05 Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [60] cobalt, and vanadium, being considered as essential for supporting the infrastructure.
The increase in demand also poses another challenge as it is predicted that the minerals, which are mainly acquired from land, will be depleted in the next 50 years.4 As a result, scientists have proposed the seabed area as an alternative source of minerals.
This idea was floated after minerals, such as polymetallic nodules, were discovered on the seabed area.
Moreover, the United Nations Convention on the Law of the Sea 1982 (UNCLOS), which provides a comprehensive framework governing the use of seas and oceans, also encourages states to explore and exploit seabed areas by providing equal shares and participation for both developed and developing states.
Part XI of the UNCLOS refers to the international seabed area as “the Area” and describes its resources as a common heritage of mankind.
It further says that no state shall claim its sovereignty or sovereign rights upon “the Area.” To implement this provision, the UNCLOS established the International Seabed Authority (ISA) and tasked it with the responsibility of administering activities in the Area.
Therefore, any states or concerned enterprises that wish to carry out mining activities on the seabed must seek the approval of the ISA.
Currently, the ISA has issued exploration rights to 22 contractors, and these contractors are bound to the UNCLOS and ISA regulations.
In Indonesia, Law No.
32 of 2014 about the Sea (Law 32/2014 on Sea) recognizes the 4 Simon (et.al) Jowitt, “Future Availability of NonRenewable Metal Resources and the Influence of Environmental, Social, and Governance Conflicts on Metal Production,” Communications Earth & Environment 1, no.
13 (2020): 2, https://doi.org/https://doi.org/10.1038/s43247020-0011-. existence of the deep seabed in areas beyond national jurisdiction,5 which allows international cooperation to be established in the said area.6 However, the law does not provide a clear mechanism of initiating deep seabed mining; instead, it directs the government of Indonesia to enact a new law regarding the activity itself.7 In 2020, Law No.
4 of 2009 on Mineral and Coal Mining (Law 4/2009 on Mineral and Coal Mining) was amended by Law No.
3 of 2020 on Mineral and Coal Mining (Law 3/2020 on Mineral and Coal Mining).
Under the amendment, the definition of mining law territories was expanded to include the seabed area.8 Notably, Article 17 of Law 3/2020 on Mineral and Coal Mining allows a Mining Business Permit Area to be established in the sea, which can be effective through ministerial coordination with relevant authorities.
Therefore, it can be argued that this law establishes the possibility that seabed mining be conducted under Indonesia’s authority.
Consequently, this study first examines whether seabed mining can be conducted under the existing Mineral and Coal Mining Law.
Second, it assesses whether the law is suitable for conducting seabed mining activities.
However, the study does not delve into each right and obligation under the UNCLOS or Indonesian law; instead, it provides a general overview of the international and Indonesian laws governing seabed mining.
5 Law No.
32 of 2014 on Sea, Article 10 (2).
6 Law No.
32 of 2014 on Sea, Article 12.
7 Law No.
32 of 2014 on Sea, Article 12 (2).
8 Law No.
4 of 2009 on Mineral and Coal Mining (as amended by Law No.
3 of 2020 on Mineral and Coal Mining), Article 1 (28).
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [61] II.
Legal Materials and Methods This study discusses the required standard for states to conduct deep seabed mining, especially under the regime of international law.
It also examines whether there is any sufficient legal basis for Indonesia to conduct deep seabed mining.
Further, it employs normative juridical research to examine how international conventions, judicial decisions, and national laws govern seabed mining.
III.
Results and Discussion Development of Deep Seabed Mining The discovery of polymetallic nodules in 1872 initiated the idea of shifting from landbased mining to deep seabed mining.
This idea was further supported by the discovery of a Ferromanganese Crust and Sulfide Deposit at depths of 3000–6000 m in the Pacific Ocean, Peru Basin, and Cook Island.9 These minerals contain various valuable mineral resources, especially the types of minerals required for computer-based technology, such as gold, cobalt, zinc, nickel, mangan, bronze, molybdenum, lead, silver, and vanadium.10 As a result, deep seabed mining is expected to be the future of mining.
Notably, the exploration of the seabed has covered only 2% of the area, which suggests 9 Ola Sparenberg, “A Historical Perspective on Deep-Sea Mining for Manganese Nodules, 19652019,” The Extractive Industries and Society 6, no.
3 (2019): 1–2, 10–11, https://doi.org/https://doi.org/10.1016/j.exis.2019.
04.001.
10 Kathryn A. Miller, Kirsten F. Thompson, and David Santillo, “An Overview of Seabed Mining Including the Current State of Development, Environmental Impacts, and Knowledge Gaps,” Frontiers in Marine Science 4, no.
418 (2018): 2– 6.
11 Zou Keyuan, “China’s Effort in Deep Sea-Bed Mining: Law and Practice, The International the possibility of states discovering other seabed areas with large amounts of minerals.11 Many states, such as Japan, Canada, and West Germany, began explorations of the seabed area in 1970, immediately after the discovery of the minerals.12 By 1970, six international consortia had conducted pilot tests on the seabed area.13 However, as a result of high expenses, political tension between the Global North and Global South, and the rising environmental concerns during the 1970s, the exploration was halted.14 Nonetheless, in the beginning of the 21st century, several states took another round at examining the potential of the seabed because of the increasing demand for raw materials.
By 2019, 17 state-sponsored companies were conducting explorations on the seabed area.
Besides exploration, in 2017, a Belgian-sponsored company initiated environmental impact assessment activities in the Pacific area as it planned to start mining operations in 2026.15 With more attention being drawn to seabed mining, the following factors continue to influence the states’ decisions to re-examine the potential of deep seabed mining: Journal of Marine and Coastal Law,” The International Journal of Marine and Coastal Law 18, no.
4 (2003): 483, https://doi.org/https://doi.org/10.1163/157180803 322710994.
12 Sparenberg, “A Historical Perspective on DeepSea Mining for Manganese Nodules, 1965-2019,” 2.
13 Sparenberg, “A Historical Perspective on DeepSea Mining for Manganese Nodules, 1965-2019.” 14 Sparenberg, 11.
15 Sparenberg, “A Historical Perspective on DeepSea Mining for Manganese Nodules, 1965-2019.” Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [62] a.
Increasing Demand for Mineral Resources The relationship between humans and technology is remarkably intertwined.
This advancement requires a stable amount of resources―such as manganese for wire, gold for electroplated coating, and cobalt for lithium-ion batteries―to support the infrastructure of technology.
Moreover, the increasing human population and the evergrowing trend of the digital economy contribute to the increasing demand for mineral resources.
Most resources are acquired through land-based mining, which has attracted a lot of criticism because of its harmful effects on the environment.
Scientists have also predicted that mineral resources from land-based mining would be depleted in the next 50 years.16 Given these reasons, deep seabed mining offers an alternative to embrace the existing trend for mineral resources and to protect the environment.17 b. UNCLOS Provides an Equal Opportunity for both Developed and Developing States to Participate in Deep Seabed Mining The UNCLOS governs mining activities in deep seabed areas or “the Area.” The Convention described the resources from the Area as being part of the common heritage of humankind, which renders every resource 16 Jowitt, “Future Availability of Non-Renewable Metal Resources and the Influence of Environmental, Social, and Governance Conflicts on Metal Production,” 1.
17 Daina (et.al) Paulikas, “Life Cycle Climate Change Impacts of Producing Battery Metals from Land Ores versus Deep-Sea Polymetallic Nodules,” Journal of Cleaner Production 275, no.
123822 (2020): 7–8, 17–18, https://doi.org/https://doi.org/10.1016/j.jclepro.20 20.123822.
18 United Nation Convention on the Law of the Sea 1982, Article 136. derived from the Area as an international common good.18 To actualize this principle, the UNCLOS established the ISA to regulate and control exploration activities in seabed areas.
This move aims at ensuring that both developed and developing states are offered equal opportunities to participate in deep seabed mining.19 Moreover, the UNCLOS expressly restricts any claim over the Area and requires deep sea resources to be distributed equally to each state.20 However, these provisions do not imply that no state can initiate any activities over the Area; the UNCLOS only provides the regulatory framework for states to participate under several limitations.
For example, the UNCLOS allows enterprises to participate in deep seabed mining, but they must be registered as sponsored contractors under a particular state21 and the sponsoring state is responsible for private contractors’ actions while conducting mining activities within the Area.22 These provisions highlight the prospective legal framework for states to participate in deep seabed mining and its benefit in equally acquiring deep seabed resources.23 The International Legal Regime of Deep Seabed Mining Part XI of the UNCLOS refers to the seabed area as “the Area.”24 The Area is defined as areas that comprise the seabed and ocean floor and subsoil thereof, beyond the 19 Axel Hallgreen and Anders Hansson, “Conflicting Narratives of Deep Sea Mining,” Sustainability 13, no.
5261 (2021): 6–9, https://doi.org/https://doi.org/10.3390/su1309526 1.
20 Rakhyun E. Kim, “Should Deep Seabed Mining Be Allowed?,” Marine Policy 82 (2017): 134–37.
21 Hallgreen and Hansson, “Conflicting Narratives of Deep Sea Mining,” 8.
22 Kim, “Should Deep Seabed Mining Be Allowed?” 23 Ibid.
24 United Nations Convention on the Law of the Sea 1982, Part XI.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [63] boundaries of national jurisdiction.25 Under Part XI of the UNCLOS, the governance of the Area is laid down based on the concept of Mare Liberum, which was contested by Hugo Grotius in the 16th century.
This concept considers the sea as an area incapable of being owned by any state.26 This concept is enshrined in Article 137 of the UNCLOS, which stipulates that: “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof.
No such claim or exercise of sovereignty or sovereign rights nor such appropriation shall be recognized.”27 Pursuant to the aforementioned provision, every activity conducted on the seabed areas must be carried out under the regulation and supervision of the ISA.28 The ISA is expected to supervise every activity in the seabed area to ensure that it is in agreement with the purpose of common heritage of mankind, as stipulated under Article 150, namely, (1) fostering healthy development of the world economy; (2) balanced growth of international trade; and (3) promoting international cooperation for the overall development of all countries, especially developing States.29 To implement the virtue of common heritage of mankind and the purpose contained under Article 150, the UNCLOS has tasked the ISA 25 United Nations Convention on the Law of the Sea 1982, Article 1(1) 27 United Nations Convention on the Law of the Sea 1982, Article 137.
28 United Nations Convention on the Law of the Sea 1982, Article 153.
29 United Nations Convention on the Law of the Sea 1982, Article 150.
30 United Nations Convention on the Law of the Sea 1982, Article 153.
31 United Nations Convention on the Law of the Sea 1982, Section 4. with the responsibility of organizing, carrying out, and controlling activities that take place on the Area.30 The UNCLOS also governs the organization structure of the ISA as well as how it administers mineral resources as part of the common heritage of mankind, governs the marine scientific research in the Area, and protects and conserves the natural resources of the Area.31 Tasked with these responsibilities, the ISA is obligated to develop and fill in the legal gap regarding the activities conducted on the Area, especially on the technical aspect of mining.32 In a bid to meet its obligations, the ISA has issued several regulations, such as technical guidance for environmental impact assessments, an environment management plan, exploration regulations, and drafting exploitation regulations.33 In regard to the activities carried out on the Area, Article 153 of the UNCLOS lists the subjects allowed to explore or exploit the Area, which are (1) enterprises of the ISA; (2) States; (3) State enterprises; and (4) natural or juridical persons whom state parties effectively control.34 Regarding the natural or juridical persons involved in the activities, the UNCLOS requires the private entities to be registered under a state.
This allows the said private entities to hold the status of a contractor and the states to act as 32 James Harrison, “The Inernational Seabed Authority and the Development of the Legal Regime for Deep Seabed Mining,” University of Edinburg School of Law Working Paper No.
2010/17, 2010/17 (Edinburgh, 2010), https://doi.org/https://dx.doi.org/10.2139/ssrn.160 9687.
33 “The Mining Code,” International Seabed Authority, accessed February 17, 2022, https://www.isa.org.jm/mining-code.
34 United Nations Convention on the Law of the Sea 1982, Article 153.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [64] sponsoring states.35 Moreover, a statesponsored mechanism also creates an obligation for the state to ensure that the private entities comply with the relevant international regulations.36 The UNCLOS also expressly stipulates that every activity conducted by the said subjects can be initiated only after they acquire the ISA’s permission.
Article 153 further requires the ISA to assess compliance with the elements contained under Annex III of the Convention, such as environmental assessment, monitoring, and due diligence, before issuing a permit.37 Liability and Responsibility under UNCLOS The attempt to shift the source of minerals from land-based mining to seabed-based mining poses a higher risk to the sea ecosystem.
Therefore, every entity must take precautionary measures to prevent any catastrophic events in the future.
This explains why the UNCLOS has adopted a responsibility and liability regime that governs seabed mining activities.38 The drafters of the UNCLOS were well aware of the environmental concerns surrounding deep seabed mining.
As a result, the ISA was tasked with the responsibility of protecting the sea ecosystem on behalf of 35 Ximena Oyarce, “Sponsoring States in the Area: Obligations, Liability and the Role of Developing States,” Marine Policy 95 (2018): 1–2, https://doi.org/10.1016/j.marpol.2016.06.002.
36 United Nations Convention on the Law of the Sea 1982, Article 4 (3) of Annex III.
37 United Nations Convention on the Law of the Sea 1982, Article 153 38 Tara Davenport, Responsibility and Liability for Damage Arising Out of Activities in the Area: Attribution of Liability (Canada: Centre for International Governance Innovation, 2019).
39 United Nations Convention on the Law of the Sea 1982, Article 157.
40 United Nations Convention on the Law of the Sea 1982, Article 145. humankind.
All activities conducted by state actors or sponsored-private entities must, therefore, be authorized and supervised by the ISA.39 Notably, the ISA holds a prominent role in administering the seabed Area, especially to the protection of the marine environment.40 The role of the ISA also extends to formulating rules, regulations, and procedures necessary to prevent any harmful effect to the marine environment.
In this regard, Article 139 of the UNCLOS requires contractors to comply with every provision contained under the Convention and regulations enacted by the ISA.
This also extends to the natural and juridical bodies sponsored by states.41 As deep seabed mining involves a wide range of actors―including states, state enterprises, private companies, international organizations, and sponsoring states―as well as various rights and obligations, the question of attribution for responsibility and liability arises.42 In 2008, the UNCLOS’s responsibility and liability regime was questioned by Nauru, a developing state that was going to sponsor Nauru Ocean Resources, Inc. Nauru, together with Tonga, sought clarification on the issue of liability from the ISA.43 In response, in 2010, the ISA requested an advisory opinion from the 41 United Nations Convention on the Law of the Sea 1982, Article 139; Ximena Oyarce, “Sponsoring States in the Area: Obligations, Liability and the Role of Developing States,” 1.
42 Davenport, Responsibility and Liability for Damage Arising Out of Activities in the Area: Attribution of Liability, 1.
43 Donald Anton, “The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: The Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case.
17),” McGill International Journal of Sustainable Development Law and Policy 7, no.
2 (2012): 245– 46.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [65] International Tribunal for the Law of the Sea (ITLOS) on three main questions: 1) What are the legal responsibilities and obligations of State Parties to the Convention with respect to the sponsorship of activities in the Area in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of December 10, 1982 (“the 1994 Agreement”)?
2) What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2 (b), of the Convention?
3) What are the necessary and appropriate measures that a sponsoring State must take in order to fulfill its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement?
Broadly speaking, these three questions can be arranged into three aspects, namely, state parties’ responsibility and obligation; state parties’ liability; and appropriate measures for a sponsoring state.
1) State Parties’ Responsibility As mentioned above, the question of responsibility brings up another issue regarding the attributability of private contractors’ actions in seabed mining.
Therefore, to address the first question, the ITLOS must clarify the meaning of “responsibility to ensure” of States as contained under Articles 139(1), 153(4), and 4(4) Annex III.
44 United Nations Convention on the Law of the Sea 1982, Article 152 45 United Nations Convention on the Law of the Sea 1982, Article 153.
To start with, it is important to consider the fact that the exploration and exploitation of the seabed area requires private contractors to be sponsored by states, either under the circumstances where they are owned by states or under the condition where states effectively control them (e.g., where a state has dominant ownership over a private enterprise’s shares).44 Therefore, Articles 139(1), 153(4), and Article 4(4) Annex III of the UNCLOS task sponsoring states with the responsibility of ensuring that the conduct of the private contractors they sponsor is in line with the requirements of the ISA and UNCLOS.
Consequently, the Tribunal found that the role of sponsoring states is to support the ISA in implementing the requirements of international law (specifically the UNCLOS) with regard to seabed activities.45 This assistance is expressly provided for under Article 139 of the UNCLOS, which uses the words “responsibility to ensure” to emphasize the role of states.
However, this provision is still considered vague, especially when it comes to interpreting the meaning of “responsibility to ensure.”46 To further clarify this, the ITLOS gave an advisory opinion indicating that the meaning of “responsibility to ensure” is limited only to the obligation of sponsoring states “to ensure” and not “to achieve.”47 Moreover, the ITLOS highlighted five legal instruments that states must ensure private contractors comply with.
They include: a.
Part XI of the UNCLOS b. relevant annexes to the Convention 46 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para.
107.
47 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
110 Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [66] c. rules, regulations, and procedures of the Authority d. the terms of its exploration contract with the Authority e. any other obligations under the Convention.48 In sum, sponsoring states are required to take necessary measures to ensure that activities within the seabed area comply with the requirements of the UNCLOS and ISA.49 This may include exercising due diligence to ensure that a private contractor is qualified and has complied with all the relevant legal instruments.
In other words, states are only required to ensure that all the qualifications listed under the UNCLOS and any related instruments have been fulfilled by the said private actors.
This implies that not all the activities of private contractors can be attributed to sponsoring states.50 The ITLOS gave a clear elucidation on this matter: The sponsoring State’s obligation “to ensure” is not an obligation to achieve, in each and every case, the result that the sponsored contractor complies with the aforementioned obligations.
Rather, it is an obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result.
To utilize the terminology current in international law, this obligation may be characterized as an obligation “of conduct” and not “of result,” and as an obligation of “due diligence.”51 Moreover, in the advisory opinion, the ITLOS considers the view of the 48 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
103104 49 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
113 50 Anton, “The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: The Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case.
17),” 247. International Law Commission in its commentary on Articles on Prevention of Transboundary Harm from Hazardous Activities 2001, which states that: The obligation of the State of origin to take preventive or minimization measures is one of due diligence.
It is the conduct of the State of origin that will determine whether the State has complied with its obligation under the present articles.
The duty of due diligence involved, however, is not intended to guarantee that significant harm be totally prevented, if it is not responsibilities and obligations of states with respect to activities in the area (advisory opinion of 1 February 2011) possible to do so.
In that eventuality, the State of origin is required . . .
to exert its best possible efforts to minimize the risk.
In this sense, it does not guarantee that the harm would not occur.52 The ITLOS affirms other types of obligations under Article 153(4) of the UNCLOS, which are considered as direct obligations.
These include assisting the ISA, adopting a precautionary approach, adopting best environmental practices, providing recourse for compensation, and conducting an environmental impact assessment.53 2) State Parties’ Liability Unlike states’ obligation, the second question led to the issue of states’ liability (i.e., the consequences when states or sponsored entities fail to meet their obligations).
This question is intended to ascertain the extent to which states or sponsoring states can be held 51 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para.
110 52 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para.
116.
53 ITLOS, Responsibilities and obligations of States with respect to activities in the Area, para.
121150.
See also, Fatma Muthia Kinanti, “Responsibilities of States Sponsoring Persons and Entities Who Conduct Activities in the International Seabed Area”, Indonesian Journal of International Law vol.
18, no.
2 (2021): 203-204.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [67] liable when there is a failure to comply with the provisions of the Convention.
It refers to Article 139(2) of the UNCLOS and Annex III Article 4(4) of the UNCLOS.
In response to this question, the Tribunal explained that the liability of a sponsoring state is limited only to its primary obligations or the failure to meet its obligations to the applicable law.
As mentioned previously, this is described as the “states’ responsibility to ensure,” which takes us back to the ITLOS’s opinion on the first question.54 Therefore, the sponsoring state is not liable for a private contractor’s actions if the state did its best to ensure the private contractor’s compliance.
The ITLOS also highlights other measures that can be used to determine whether a private contractor’s actions can be attributed to the state.
The measures are whether (1) the sponsoring state failed to fulfill its obligation and (2) there is a causal link between the damage and the failure.55 The first measure―the sponsoring states’ responsibility―has been addressed by the Tribunal in the first question.
The responsibility of a sponsoring state is limited only to the “responsibility to ensure,” which requires it to exercise the necessary measures as stipulated under the relevant international legal regime.56 The second measure requires the damage to have a causal relationship 54 ITLOS, Responsibilities and obligations of States with respect to activities in the Area.
para.
113; See also, I. Plakokefalos, “Seabed disputes chamber of the International Tribunal for the Law of the Sea responsibilities and obligations of states sponsoring persons and entities with respect to activities in the Area,” Journal of Environmental Law 24, no.
1 (2011): 133–143.
55 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
176177.
56 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
176177. between the sponsoring states’ failure to meet its obligations and the damage itself.57 Therefore, not every action of a private contractor can be attributed to its sponsoring state.58 The ITLOS also reaffirms that the type of liability implied by the UNCLOS does not refer to strict liability or residual liability between the sponsoring state and a private contractor.59 Instead, every liability must be assessed by considering whether the sponsoring state has fulfilled its obligations and whether there is a causal link between the said failure and the damage.
3) Appropriate Measures for Sponsoring States To answer the third question, the ITLOS had to determine the meaning of “necessary and appropriate measures,” as used under Article 139 and Annex III of the UNCLOS.
The requirements under Article 139 and Annex III of the UNCLOS generally obligate every state to fulfill its responsibilities in sponsoring or initiating activities on the seabed area.
From these provisions, it is evident that a sponsoring state is responsible for ensuring contractors’ compliance with the applicable law.
Therefore, regarding question three, the ITLOS emphasized the importance of sponsoring states adopting laws and regulations that conform to UNCLOS and ISA regulations and procedures.60 This opinion points to the need for states to have their own domestic 57 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
181.
58 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
181184.
59 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
188.
60 ITLOS, Responsibilities and obligations of States with respect to activities in the Area.
para.
241, 218-219.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [68] measures to ensure compliance from the contractors themselves.61 Adopting domestic law: Current practices From the advisory opinion above, the ITLOS provided the much-needed guidance on sponsoring states’ responsibility, liability, and measures they should adopt before getting involved in deep seabed mining.
Therefore, for states to participate in seabed mining, they must first ensure compliance with the established international regulations.
The same applies to private contractors, where sponsoring states have the responsibility to ensure that private contractors are qualified to initiate activities in the seabed area.
It is also clear that the domestic laws of every state are an indispensable aspect that contributes to implementing international regulations at the domestic level.
Under the current international regime, the UNCLOS provides a wide range of opportunities for private actors to take part in seabed mining as long as they are sponsored by states.
Therefore, states play a crucial role by creating a national legal system that can enable the said entities obtain a certificate of sponsorship.62 Considering the crucial role that national legislation plays, states must formulate proper seabed mining laws under their domestic sovereignty.
Klaas Willaert provides a general overview of the elements that most states consider when enacting national laws on deep seabed mining.
However, this paper does not address each of these elements in depth.
Instead, it highlights the wide-ranging issues that need to be governed within the domestic laws, to 61 ITLOS, Responsibilities and obligations of States with respect to activities in the Area., para.
221222, 226. illustrate the complexities that may arise in governing the mining activities on the seabed.
Regarding this, Willaert found six common factors that states need to consider.
They include the following: a.
General Provisions It is necessary for States to have adequate definitions about every term used to describe seabed mining activities.
This includes definitions of the seabed area, mining, exploration, exploitation, and other related terms.
Moreover, considering the differences between different legal systems―for example, common law and civil law systems―states must be careful when defining legal concepts to ensure that the intended meaning of a particular provision is in accordance with applicable rules under international law.63 b.
Relevant Principles of International Law Adopting international law principles is an important aspect in enacting appropriate domestic laws.
For instance, the UNCLOS recognizes various distinct legal principles regarding seabed mining.
These include the common heritage of mankind, sustainable development, and the peaceful use principle.
According to Willaert, although international principles are not required to be explicitly stated in national legislation, it is possible if the scope or the intended interpretation is the one that is put in the national legislation itself.64 This can be seen from the following provision: 62 Klaas Willaert, “Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws,” Marine Policy 119 (2020): 1.
63 Willaert, 2.
64 Willaert, 2–3.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [69] Singapore on Deep Seabed Mining Act 2015:65 “The purpose of this Act is to regulate the exploration for and exploitation of resources in the Area by persons sponsored by Singapore under the Convention and the Agreement.” Kiribati Seabed Minerals Act 2017:66 “The objects of this Act are:… to provide that Seabed Mineral Activities under Kiribati’s sponsorship in the Area must be carried out in accordance with best international practice and in a manner that is consistent with internationally accepted rules, standards, principles and practices, including Kiribati’s responsibilities under the UN Convention on the Law of the Sea.” c. Procedural Aspects in Issuing a Certificate of Sponsorship The UNCLOS allows natural or juridical persons to conduct mining activities on the seabed area if they are sponsored by a particular state.
It requires the state to issue a legally sound procedure for private contractors who wish to obtain a certificate of sponsorship.
This illustrates the state’s obligation to ensure that private contractors meet the necessary requirements according to UNCLOS or ISA regulations.
However, only the ISA is authorized to issue a deep seabed mining license.
This signifies the important role that the ISA plays in regulating seabed mining.67 Moreover, the UNCLOS requires states to have effective control over private 65 Singapore Deep Seabed Mining Act 2015, Article 3(c).
66 Republic of Kiribati Seabed Minerals Act 2017, Article 5.
67 Willaert, “Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws,” 3.
68 Article 153 of United Nations Convention on the Law of the Sea 1982 contractors.
States can achieve this through regulatory control or economic control.68 To facilitate regulatory control, a state can decide to be a majority shareholder in a mining company.69 Procedural matters include various qualifications, such as the basic information of the applicant, activities, purposes, private contractors’ financial and technical capability, draft plan for the intended mining activities, and environmental impact assessment report.70 Besides the basic requirement to apply for sponsorship, public interest is also considered.
For instance, Cook Islands’ laws require any seabed activity undertaken under its sponsorship to be of benefit to the general public.71 d. Rights and Duties of Contractors and Sponsoring States The essence of the law is to create rights and duties, and this also applies to seabed mining legislation.
The role of private contractors must be clearly defined and governed.
The same approach is also adopted when specifying the rights and duties of sponsoring states.
Article 139 of the UNCLOS and ITLOS’s Advisory Opinion requires domestic laws to provide an adequate legal basis for sponsoring states to ensure that private contractors comply with international regulations.
In addition, the duties and responsibilities of sponsoring states must consider the required elements of “responsibility to ensure” as provided for under Article 139 of the 69 Andres Sebastian Rojas and Freedom-Kai Phillips, Effective Control and Deep Seabed Mining: Toward a Definition (Canada: Centre for International Governance Innovation, 2019), 2–3.
70 Willaert, “Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws,” 3.
71 Section 134 Cook Islands Seabed Mineral Act 2019.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [70] UNCLOS and other relevant international legal instruments.
For example, sponsoring states are required to conduct monitoring activities, collect records from the mining activities, develop a proper mechanism for applying to the ISA, and facilitate a precautionary approach in undertaking seabed activities.
Domestic laws also govern a number of obligations, such as minimum working conditions, protection to marine environment, applying the precautionary approach, and having adequate insurance.72 The rights and duties provided for under international law are also adopted by states through several domestic laws.
For example, Singapore, through the Deep Seabed Mining Act 2015, requires the licensing process to satisfy the condition stipulated under Annex III, Article 4 of the UNCLOS.73 This requirement acknowledges the collaboration between the ISA and the Government of Singapore in issuing licenses and monitoring seabed mining.74 e. Information and Transparency When enacting domestic laws, states must also consider the nature of information they can collect from seabed activities.
Arguably, seabed-related activities are costly and some information acquired in the course of these activities might be of high value.
Therefore, states should adopt strict regulations to ensure information transparency or, where necessary, create a strict confidential system 72 Willaert, “Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws,” 4.
73 Singapore Deep Seabed Mining Act 2015, Article 7(1).
74 Singapore Deep Seabed Mining Act 2015, Article 3, Article 16(4).
75 Willaert, “Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws,” 4.
76 Willaert, 5.
77 “Menko Maritim Luncurkan Data Rujukan Wilayah Kelautan Indonesia,” Coordinating Ministry for to protect information exclusively meant for private contractors.75 f. Monitoring and Enforcement Domestic laws also govern the monitoring and enforcement aspects of seabed mining.
From Willaert’s findings, several national legislations have adopted strict monitoring policies, which include vessel inspection, installation, annual document submission, and even minimum technological standards.
Several national legislations have also established institutions whose main function is to monitor contractors’ activities.
Sponsoring states impose administrative and penal sanctions, through these monitoring systems.76 Indonesian Law and Deep Seabed Mining Indonesia is popularly known as the largest archipelago state in the world.
Up to 62% of Indonesia’s territory is covered by the sea.77 Therefore, it is not surprising that the Government of Indonesia considers the sea as one of the significant aspects in its effort to develop its economy.78 The sea area in Indonesia is governed by Law 32/2014 about the Sea.
Article 6 of Law 32/2014 about the Sea allows the Government of Indonesia to explore and exploit the international seabed area.79 Further, the Law also opens the possibility for the Government of Indonesia to conclude international treaties with Maritime Affairs and Investment, Kementrian Koordinator Bidang Kemaritiman dan Investasi, accessed February 16, 2022, https://maritim.go.id/menko-maritim-luncurkandata-rujukan-wilayah-kelautan-indonesia/.
78 “Presiden Jokowi Nyatakan Komitmen Indonesia Dalam Perlindungan Laut,” Sekretariat Kabinet Republik Indonesia, accessed February 16, 2022, https://setkab.go.id/presiden-jokowi-nyatakankomitmen-indonesia-dalam-perlindungan-laut/.
79 Law No.
32 of 2014 on Sea, Article 6.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [71] relevant international organizations within the international seabed area.80 The Law also directs the government of Indonesia to formulate other laws that can govern the activities conducted in the seabed area.81 As a result, Law 3/2020 on Mineral and Coal Mining provides a wider definition of mining law territories (“Wilayah Hukum Pertambangan”), which include the seabed area.82 This acts as the legal basis to commence deep seabed mining.83 The Law 3/2020 provides several changes to the previous law.
The key highlight of the amendment is the centralization of the licensing process that confers most of the authority to the Central Government.84 Law 3/2020 on Mineral and Coal Mining also introduces six new types of mining licenses,85 whereas Law 4/2009 on Mineral and Coal Mining had only three types of mining licenses.86 According to Law 3/2020, all mining licenses can be issued only within the territories covered under mining territories (“Wilayah Pertambangan”).87 Furthermore, the territories must specify the scope of mining law territories,88 which under Law 3/2020 on Mineral and Coal Mining, not only covers the area of Indonesia’s land and sea but also the water column and seabed.89 Therefore, when 80 Law No.
32 of 2014 on Sea, Article 12.
81 Law No.
32 of 2014 on Sea, Article 12 (2).
82 Law No.
3 of 2020 on Mineral and Coal Mining, Article 1(28a); Idris and Taufik Rachmat Nugraha, “Does the International Community Have Efforts to Protect the Marine Environment from Seabed Mining?”, Sriwijaya Law Review 5, No.
2 (2021): 283; Indonesian Ministry of Maritime and Investment Affairs.
“Webinar on the Work of ISA and State Practices in Regulating Deep Seabed Mining in the Area’.
https://www.youtube.com/watch?
v=yq1MSWDCBc0&t=3452s (accessed on 16 February 2022).
83 Ibid.
issuing a territory, the mining law territory must be considered, which can be achieved through a policy-making process involving the Indonesian Government.90 The Law 3/2020 on Mineral and Coal Mining also makes it possible for any party to be involved in sea mining activities; however, such a party should seek permission from the relevant institution through the Ministry of Energy and Mineral Resources.91 From the foregoing, it is evident that both Law 32/2014 on Sea and Law 3/2020 on Mineral and Coal Mining provide the legal basis to initiate seabed mining in Indonesia.
This corroborates the provisions of UNCLOS and ISA regulations, which allow states, in this case, the government of Indonesia, to issue mining permission through policy measures, such as adopting the seabed territory as part of Indonesian’s mining territories.
Questioning Law 3/2020 on Mineral and Coal Mining to Commence Deep Seabed Mining The UNCLOS provides equal opportunities for both developed and developing states to participate in deep seabed mining.
Notably, many states are already involved in deep seabed mining because of the minerals already discovered there.
The Indonesian 84 Law No.
3 of 2020 on Mineral and Coal Mining, Article 35.
85 Law No.
3 of 2020 on Mineral and Coal Mining, Article 35 (3).
86 Law No.
4 of 2009 on Mineral and Coal Mining, Article 35.
87 Law No.
3 of 2020 on Mineral and Coal Mining, Article 10; Article 35.
88 Law No.
3 of 2020 on Mineral and Coal Mining, Article 9.
89 Law No.
3 of 2020 on Mineral and Coal Mining, Article 1(28a).
90 Law No.
3 of 2020 on Mineral and Coal Mining, Article 9.
91 Law No.
3 of 2020 on Mineral and Coal Mining, Article 17(2).
https://www.youtube.com/watch Brawijaya Law Journal: Journal of Legal Studies 9(1): 59-75 [72] Government has also expressed its interest to explore the seabed.
This is evident from Presidential Regulation No.
16 of 2017 on Indonesian Ocean Policy, which supports the effort to find alternative mineral resources in sea, specifically in the vast area of the international seabed.92 The Government of Indonesia has further actualized its interest in deep seabed mining through Law 3/2020 on Mineral and Coal Mining and expands the definition of mining law territories to include the seabed area.93 Moreover, these amendments allow the Ministry of Energy and Resources to conclude international agreements with relevant organizations to initiate mining in the sea area.94 Therefore, with the amendments effected by Law3/2020, the Government of Indonesia considers “the Area” as part of its mining law territories, which forms the basis of its mining territories.
Moreover, these amendments allow the Government of Indonesia to enter into international agreements with the ISA through the Ministry of Energy and Resources.
However, despite the amendments and possibilities they offer, this paper recommends that seabed mining be governed by a distinctive law that specifically addresses seabed activity.
As mentioned in section D, UNCLOS and ISA regulations identify many aspects that need to be adequately governed before seabed mining can be initiated.
This includes the rights and duties of sponsoring states and private 92 Presidential Regulation of the Republic of Indonesia No.
16 of 2017 concerning Indonesian Maritime Policy, Appendix 1 Chapter II 93 Law No.
3 of 2020 on Mineral and Coals Mining, Article 1(28a).
94 Law No.
3 of 2020 on Mineral and Coal Mining, Article 17 (2).
95 Willaert, “Crafting the Perfect Deep Sea Mining Legislation: A Patchwork of National Laws,” 2. contractors, the relationship between sponsoring states and the ISA, adopting rules for mining technicalities, and states’ responsibility in case of damage.
The most suitable legal instrument that can address all these issues is a Statute (“Undang-Undang”).
In contrast, under the existing legal regime, Law 3/2020 on Mineral and Coal Mining and Law 32/2014 on Sea only govern seabed activities by instructing the Government of Indonesia to enact implementing legislation.
It is important to note that several states govern the issue of seabed mining under the same law with another law and several states govern this matter separately.95 Therefore, this paper contends that seabed activities be regulated under the Statute for Indonesian law.
The same recommendation has also been put across by Putuhena, who argues that deep seabed mining is inherently classified as a subject whose content is intended to meet the legal needs of society (“pemenuhan kebutuhan hukum dalam masyarakat”).96 In this regard, he refers to Article 10 of Law No.
12 of 2011 on the Formation of Laws and Regulations (Law 12/2011 on the Formation of Laws and Regulations), which requires every matter that relates to any aspect that meets the legal needs of society to be governed by Statute.97 This paper construes Putuhena’s argument as a sound one.
This is because seabed activities cover many wide-ranging aspects that are not only limited to administrative or technical aspects but also contain the rights, duties, responsibilities, and liabilities of every 96 M. Ilham F. Putuhena, “Urgensi Pengaturan Mengenai Eksplorasi Dan Eksploitasi Pertambangan Di Area Dasar Laut Internasional (International Seabed Area),” Jurnal Rechtsvinding 8, no.
1 (2019): 178.
97 Law No.
12 of 2011 on the Formulation of Laws and Regulations, Article 10.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [73] involved party, including states, international organizations, and private actors.
Moreover, the notion of “state responsibility” is a clear indication that the Government of Indonesia must ensure that seabed mining is in accordance with requirements of the Indonesian Constitution as well as the UNCLOS itself.
Therefore, as Article 6 of Law No.
12 of 2011 on the Formation of Laws and Regulations (Law 12/2011 on the Formation of Laws and Regulations) requires the implementation of the Indonesian Constitution to be regulated by Statute, seabed activities should also be regulated in the same manner.
IV.
Conclusion Seabed mining offers humankind an alternative for finding mineral resources.
This advancement will surely provide a better opportunity to support the digital transformation that inevitably requires raw resources.
Moreover, the sea constitution, the UNCLOS, provides an equal opportunity for both developed and developing states to explore the seabed area.
With this, it is not surprising that a large number of states, ranging from developed to developing ones, have commenced explorations.
As a result, the ISA has formulated regulations to keep up with the current development.
In Indonesia, the government has enacted Law 3/2020 on Mineral and Coal Mining, which further expands the definition of mining law territories to cover the seabed area.
Therefore, the Government of Indonesia is capable of issuing seabed mining permits within its territory.
However, this paper contends that Law 3/2020 on Mineral and Coal Mining is not suitable to govern the matter of seabed mining, even if the government can enact policies that recognize the seabed area as part of mining territories.
This is because seabed mining is not only limited to administrative matters but also involves how the rights, duties, and responsibilities of states should be implemented in the international legal landscape.
Therefore, this paper recommends the use of Statute to govern seabed mining activities, as opposed to the current legal regime that depends on implementing regulations.
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Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 175 RECONCEPTUALIZATION OF INDONESIA LAW SUBSTANCES Prasetijo Riyadi 1 and Sri Priyati 2 1 Professor in Law of Law Faculty Bhayangkara University, Surabaya 2 Associate Professor in Law of Law Faculty Bhayangkara University, Surabaya Email: yullianae@gmail.com Submitted: 2017-04-12 | Accept: 2017-08-29 ABSTRACT Law is designed to bring justice to the people and to establish good public order.
The idea of rule of law construction encouraged fundamental changes to the rule of law itself in accordance with country‟s values and interests.
This article focuses on what exactly the substance of law and examines how such substance is understood by society.
Furthermore, it analyses the application of such substance of law within the society and government organization.
It further intends to enable articulating and emphasizing the law and its actual application in "the wholeness" and "helix" Re-conceptualization of conductive-correlative law substances to the understanding and meaning of the law as a norm that has social moment is necessary.
The urgency to reconsider the construction of law substances is encouraged by the real fact, which law has deceived into supporting the power abuse, corruption, collusion and nepotism.
This research argues that law is not just a normative abstraction, but also in its form as the totality of empirical phenomena that exist in social entities.
Law should be understood in the sense of a dynamic, not static, and not general from the juridical elements.
In the reformation era, only conceptual understanding that has the relevance.
Keywords: law substance, power I.
INTRODUCTION Discussion to reconsider the concept of Indonesia‟s law substances, reminiscent of the Satjipto Rahardjo‟s idea, in a paper entitled “Rekonstruksi Pemikiran Hukum di Era Reformasi”.
He has critically explained that law position which oriented to the establishment of a law system is completely capable “to bring justice, to the people”.
1 1 Satjipto Rahardjo, ‘Rekonstruksi Pemikiran Hukum Di Era Reformasi‟, (Paper presented at National Seminar Menggugat Pemikiran Hukum Positivistik Di Era Reformasi, Semarang 22 Juli 2000).
The above idea gives hopes to encourage fundamental changes to the rule of laws in accordance with country‟s values and interests.
The need to re-concept law substances: from the arrangements which inclined to authorities toward the rule of law that is in line with the society interest, it is essentially a natural demand in deconstructing formalistic towards empirical.
The separation of the two law concepts, namely the formalistic normatic DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.03 mailto:yullianae@gmail.com http://dx.doi.org/10.21776/ub.blj.2017.004.02.03 176 and empirical sociological reflects the dynamic development of law.
This development is likely to be realized and discoursed by I.S.
Susanto and Bernard L. Tanya who stated as follow: 2 “Each of us wander in law concept, we will soon feel and face a permanent crisis.
On the one hand, we feel "safe" and "definitive" to face the principles, doctrines, and rules which are clear, rigid, and systematic.
However, we will falter immediately when facing the relevance or social significance problems of all the normative arrangement.
Is “normative schemes” quite representative to describe the human reality that to be arranged.” Fundamental thought of Boaventura de Sousa Santos in his book entitled “Toward a New Command Sense: Law, Science and Politics in the Paradigmatic Transition”, discussing the arguments of realism and ethnocentrism, it is a conceptual framework that shows law modernity.
Through argument commensurate with the interpretation of community, law must be understood over a dynamic scope which needs persuasive argument by using logic scientific thought.
3 Likewise as stated by A.H. de Wild that “the law is not autonomy rule”.
4 Such rationale clearly reflects the reconceptualization of law substance.
As 2 I.S.
Susanto dan Bernard L. Tanya, Wajah Hukum Di Era Reformasi (Kumpulan karya Ilmiah Menyambut 70 Tahun Prof. Dr. Satjipto Rahardjo), (Bandung: Citra Bakti, 2000).
3 Boanventura de Sousa Santos, Toward a New Common Sence: Law Science and Politics in the Paradigmatic Transition, (New York: Routledge, 1995).
4 A.H. de Wild, „Pendidikan Hukum Antara Ilmu dan Profesi, Pro Justitia‟, (1994) XII 1 Pro Justisia.
complex rules 5 , the law is not a neutral phenomenon.
Laws are in a tangle of problems and society dynamics 6 .
Legal and social phenomena are put on the same level.
In an atmosphere of law, "Sein" and "sollen" can not be separated.
The law is the ambiance of das sein in which contain das sollen to get his form.
In law, the facts and the rules are always running coincidentally: the law is the facts and rules as well 7 .
Law have not been known and understood by highlighting the ideal rules that are considered as a reflection of the law.
8 Friedrich Karl von Savigny, figures of history sect stated: “... That law can not be understood without an appreciation of the social milieu in which it has development” 9 .
Considering “Gesert ist Gesert” ansich, regardless of practical realm and diversity dimensions, is a fragile 10 optical arrogance and denying “the relationship of law and society”.
The study of “the law is the law” is an extreme product of the normative reduction attitude towards the law, and culturally.
Law has been cleared 5 O. Notohamidjojo, Demi Keadilan dan Kemanusiaan: Beberapa bab dan Filsafat Hukum, (Jakarta: BPK Gunung Mulia, 1975).
6 Hermin Hadiati Koeswadji, Korupsi Di Indonesia Dari Delik Jabatan ke Tindak Pidana Korupsi, (Bandung: PT Citra Aditya Bakti, 1994).
7 D.H.M.
Meuwisen, ‘Pengembangan Hukum‟, (1994), XII (1), Pro-Justitia.
8 Hermin Hadiati Koeswadji, Beberapa Permasalahan Hukum dan Pembangunan Hukum, Hukum dan Pendidikan Hukum, dan Hukum dan Bantuan Hukum, (Surabaya: PT.
Bina Ilmu, Surabaya, 1980).
9 George Whitecross Paton, A Tex –Book of Jurisprudence, (Oxford: Clarendon Press, 1955).
10 N.E.
Algra, Pengantar Ilmu Hukum, (Bandung: Bina Cipta, 1991).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 177 from the non-judicial elements 11 .
The consequences are as follow: 12 "... First, strengthening the normative impression of law.
Second, narrowing the appearance of laws.
Third, the separation of the law norms from other law elements.
Fourth, breaking the relationship between the law and reality.
Fifth, narrowing the scope of jurisprudence study.
Sixth, directing jurisprudence into science professionalism.
Seventh, weakening the value of law axiology.
Eighth, weakening the anticipation of law science to practical life.
From the background above, it‟s clearly proven that perspective of reconceptualization which conducivecorrelative to the understanding of the law as a norm that has social moment is significant.
A description and holistic critical exploration for the law with all of its attributes.
13 Clearly, it‟s needed a perspective that has validity theoretical and practical.
This conceptual research is intended to enable articulating and emphasizing the law and its actual application in "the wholeness" and "helix" 14 .
Why does Indonesian Law 11 Lili Rasjidi, Filsafat Hukum, Apakah Hukum Itu, (Bandung: Remadja Karya, 1985).
12 Lili Rasjidi dan L.B.
Wyasa Putra, Hukum Sebagai Suatu Sistem, (Bandung: PT.
Remaja Rosdakarya, 1993).
13 Soerjono Soekanto, Penegakan Hukum, (Bandung: Bina Cipta, 1983).
14 Adam Podgorecki dan Cristoper J. Whelan, Pendekatan Sosiologi Terhadap Hukum, (Jogja: Bina Aksara, 1987).
Substances still needed to be reconceptualized?
II.
LEGAL MATERIALS AND METHODS This research uses a normative juridical method.
The legal materials of this paper are primary and secondary legal materials.
It uses the statute and conceptual approaches as well as case study approaches.
It begins with a brief description of Indonesian Law in reality followed by such law in place sometimes could not cope to establish a sufficient rule of law in order to reach good public order.
It further followed by a proposed legal reconceptualization approach.
Basic theory and conceptual legal norm are constantly used to sharpen the analyses of the problems of law in the application in society.
The finding of this research are sum up in the conclusion.
III.
RESULTS AND DISCUSSIONS 1.
Reality of Indonesian Law The facts show how the law was exploited to support misleading the power, corruption, collusion and nepotism during the New Order period.
This situation has brought the country to ruination.
The Old Order and New Order were equally not reflecting the sovereignty vested in the 178 people, even becoming increasingly authoritarian.
In New Order era, the state administration practices and its developments have endangered the law.
In reformation era, there has been revealed deviations of the legislation and the weakness of laws which further proves how necessary to straighten and re-arrange the law substance.
Inventory of law products ranging from constitutions, government regulations and presidential decree find ambiguity arrangements and abuse of power which affect to difficulties of implementation and enforcement of the law, as well as fostering corruption, collusion and nepotism.
In Reformation era, a portrait of law enforcement in this country has become public opinion and peaked at the end of 2009.
The cases of Bibit and Chandra 15 , Prita Mulyasari 16 and Mbah Mina are portraits of legal problems which have become public consumption and these cases were part of the judicial misguided.
In addition, public attention and opinion toward law enforcement agencies is very thoughtful on the post-reformation, particularly with regard to legal issues concerning the livelihood of society, nation and state.
Along with the news in the mass 15 Adnan Buyung Nasution, Kontroversi Kasus Bibit Candra, dalam Prasetijo Rijadi & Sri Priyati, Dinamika Perkembangan Teori Hukum Indonesia, (Surabaya: Putra Media Nusantara, 2012).
16 See Kejanggalan Kasus Prita Menyeruak, Ibid., 125 media about public support for the law enforcement, there were also disappointments and public criticisms against law enforcement, either by the police, the prosecution or by the court.
(Coins of Justice: When justices are being doit, then we also collect doit.
Society‟s disappointment was caused by unfulfillment of the expectations toward the process and decision‟s court to bring the truth, justice, peace and welfare.
Until recently, most people believed that the judiciary as the last bastion to seek justice.
However, the public trust is inversely related to the fact of court deterioration.
Deterioration of the court against the "nature" of its existence to resolve conflicts.
The court ruling only realizes the truth and the formal procedural fairness, so that substantially will never be realized.
Access to justice were supposed to be evenly distributed to all levels of society can not be achieved.
Thus, only the elite can enjoy it.
As the implications of these circumstances, the court would be a place for mafia and market of articles.
Nowadays, law has become the most devastated institution.
Its appeal as an institution for guarantor of justice is no longer visible in the realm of Indonesian‟s consciousness today.
The reality that we often encounter is chilling: criminals who were burned alive by a mob, property destruction by the masses, the notching law Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 179 enforcement pursued by mass and so forth, and many more.
It actually happened in the era of democratization.
Consider life and law enforcement as second priority will directly paved the way for the growth and the strengthening the centralization of political power into the hands that build and produce authoritarian, dictatorial, which the actions always legitimized in the name or in the interest of the people, but the reality it is free from society control and better than the interests, the real needs of the people and of the people's sense of justice.
Such actions are always packed in a written positive law suit that meets all the formal requirements of the law through the tricky engineering which subsequently upheld and enforced to be established with the support of the military personnel strength.
Hence, the independence of authority and power development of effective control can cause systemically undermined for the fundamental law which resulted to crisis in the law getting worse by the massive corruption.
The crisis of law and law life had reached its nadir.
17 This situation seems to demand the reconceptualization of law in the society administration, politics and the state.
This can only happen through a reinterpretation 17 B. Arief Sidharta, Praktisi Hukum dan Perkembangan Hukum, Dalam Wajah Hukum Di Era Reformasi, Kumpulan Karya Ilmiah Menyambut 70 Tahun Prof. Dr. Satjipto Rahardjo, SH, (Bandung: Citra Aditya Bakti, 2000).
of law in its entirety, which is the development of law simultaneously.
Francis Fukuyama, in his book The Great Disruption: Human Nature and Reconstitution of Social Order, giving his brilliant concept about the existence of a legal substance in the development of society.
Law is not sufficient just viewed from the formalistic perspective.
The law reduction only as a normative order that uprooted from social roots and its culture is naive.
The law functional role must be reinterpreted in regards with the social needs on every level.
If there is any effort to reinterpret the position and function of law in social context, then law can be confirmed for having lost its substantial meaning.
This shows the necessary of the law existence which can shape the behaviour for the realization of social order.
Every society has the momentum and the pace of development in accordance with the situation and circumstances.
Dynamic directions of the community reflect the social shift.
Presence the information society or the information age as found in the book The Great Disruption by Francis Fukuyama, have reflected the flow of social change.
In fact, the community has grown by describing the history of social order.
18 The emergence of industrial society with all its character is not something 18 Francis Fukuyama, The Great Disruption, Human Nature And The Reconstitution Of Social Order, (New York: The Free Press, 1999).
180 automatic, but through the stages of economic development, social, cultural or political.
The role of information on the social relationships pattern is a supporting factor that marks their social dynamics.
Advances in information technology are attached to the means of communication which clearly technical shows their determination acceleration of culture between communities.
Each community has and produce information in accordance with the level of its development.
It is also found as well as contained in the so-called modern democracy values which include the freedom and equality.
19 In reality the community move forward from agrarian to industrial structure which then leads to information arrangements.
Each stage of society development has specific legal arrangement.
Traditional societies have rules of traditional law and modern society is also equipped with modern rules.
Of course, the information society requires informative legal rules.
Through a set of rules in line with society dynamics, the law will be able to play the dynamic and functional role.
Therefore the existence of substantial law must be played in accordance with its era.
Law which is born from the cultural situation of traditional societies clearly can not be applied properly in modern society that certainly has been producing modern 19 Ibid.
law.
Similarly, modern law can not be applied either to the informative society, because informative society have informative laws setting.
20 2.
Re-conceptualization of the Law through Approach System Discourse of Law Study 21 shows historic rotation character of the law that “empirical” and “normative” in line with the society development which, according to Henry Maine move evolutionary from the traditional type to modern type, 22 and “the movement of the progressive societies has hitherto been a movement from status to contract.
For Max Weber, this progressivity is inevitably bringing the law rhythm that emphasizes substance to its rational and formal form.
23 Such a process commonly referred to as a process towards “autonomous” law conceptions Philippe Nonet Philip Selznick 24 or the “positivity of law” according to Niklas Luhmann, 25 to format the behavioral patterns corresponding to normative reference on a 20 Ibid.
21 P. Van Dijk, Van Apeldoorn‟s, Inleiding Tot de Studied van Het Nederlandse Rechts, (Zwolle: W.E.J, Tjeenk Willink, 1985).
22 Soetandyo Wignyosoebroto, Dari Hukum Kolonial ke Hukum Nasional, Suatu telaah Mengenai Transplantasi Hukum ke Negara-negara yang Tengah Berkembang khususnya Indonesia, (Paper presented at Pidato Pengukuhan Unair, 1989) 23 Soetandyo Wignyosoebroto, Ibid., 2.
24 Phlippe Nonet dan Philip Selznick, Law and Society in Transmition Towaed Responsive Law, (New York: Haper & Row, 1978).
25 Niklas Luhmann, A. Sosiological Theory of Law, (London: Routledge & Kagen Paul, 1985).
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 181 Laura Nader‟s view: in the same breath with “the rule sound of positive law” 26 What is meant by positive law, J.J.H.
Bruggink wrote 27 : “Onder de positiviteit van een rechtsnorm verstaat men bevoegde rechtautoriteitenvastgesteld door het zijn van de rechtsnorm in enn rechtsregel Die wordt een rechtsregel and positiefrechttelijke regal, genoemd.
Positief recht van het is de vertailing fatijnse "ius positum" gesteld recht.
Positief recht dat is dus het recht door mensen is vastgesteld, vandaar ook de ouderweste uitdrukking Stelling recht.
(Positive law is the ius positum, translation of the Latin language, which lierally means "applied law" (gesterld recht).
Thus, positive law is the law established by man, because it was in the old expression called “Stelling recht”.
It means a rule must be iustum as positive, what is the state recognized as legal.State creates law with norms, govern something, 28 code of conduct, 29 which is sociologically often utilized as control instruments: 30 Law is governmental Social Control.
26 Ibid.
27 J.J.H.
Bruggink, Rechtsreflecties, Grondbegrippen uit de rechtstheorie, (Netherlands: KluwerDeventer, 1993).
28 Karel F.M.
Bongenaar, „Aturan adalah Norma, Beberapa aspek mengenai sifat normatif dari Peraturan Perundang-undangan‟, (1993) VII 1 Yuridika.
29 Philipus M. Hadjon, Pengkajian Ilmu Hukum Dogmatik (Normatif), (1994) IX 6 Yuridika.
30 Donald Black, The Behavior of Law, (London: Academic Press, 1976).
How central existence of positive law can be seen from the diversity of law knowledge that makes the object study.
Dogmatic law science.
Includes “alle wetenschappelijke activiteiten samengevat, welke erop Gericht zijn de inhoud van een concrete positive rechtsonde te besturderen” (all scientific activities geared to learn this from a concrete positive law), which wrap ourself in five tasks: "het beshrijven, analyseren, systematiseren, interpreteren en waarderen van (eenbepaald onderdeel) het positieve recht " 31 (expose, analyze, systematize, interpret and assess (a part of) the positive law.
legal science empirical proposition: the" het positieve recht is een vorm van waarneembaar menselijk gedrag "(positive law as a social fact, viewed as other social facts other.
Law is a form of human behavior that can be enjoyed) and 32 Het is nu de taak van de (empirische) rechtswetenschap diet feit niet allen te beschrijven, maar ook met behulp van hypotheses en wetmatigheden te verklaren.
Dit verklaren kan in tweerlei zin worden verstaan.
Aan de ene kant kunnen sociale feiten (in ruime zin genomen) worden verklaard met behulp van het recht.
Bijv ledereen rijdt rechts omdat er rechtsregels gelden, iedereen betaalt belasting omdat een bepaalde wetgeving geldt.
Aan de andere kant kunnen de rechtsnormen (verschijnselen) worden verklaard met 31 Ibid., 452 32 Ibid.
182 behulp van (andere) sociale feiten.
Bijv Er geldt een maximumsnelheid omdat de verkeersveiligheid di zou eisen”.
(The task of law science (empirical) is not only exposes the fact, but also explains it through the hypotheses and constancy).
It can be understood in two meanings.
First, social facts (in the broad sense) can be explained through the rocks of law.
For example, every person driving a vehicle on the left because there is applied rule, each person paying the tax because there is applied specific legislation.
On the other hand, the rules of law (symptoms of law) can be explained through social facts (the other).
For example, apply a maximum speed for traffic safety.
It is clear that the law (positive) has been a central focus of law scientific study with different perceptions and visions.
Law is viewed as the norm by dogmaticnormative jurisprudence, as well as the fact of empirical law studies with a qualification “no recognized boundaries” 33 have also pointed out.
“....... Science of law is a branch of disputed science by a number of other disciplines.
It‟s started from doubts about the scientific status, until the intervention and the seizure of the study object.
By describing the law as a social norm, the social sciences claims law as social sciences object (sociology of law), and through the way (law anthropology), as well as through 33 I.B.
Curzon, Jurisprudence, Macdonald & Evans Ltd, 1979, V political science.
Comprehensive scientific dialog understanding is starting to clarify the context of each branch of science, but in some cases, overlapping the substance is still rather difficult to be avoided.
The dominance of the law normative reduction was more pronounced than on empirical momentum through its influence on tradition of branches knowledge in defining law.
Political science describes the law as “a rule setting forth Among men either a relationship or a relationship between the state and the which is expressed, sanctioned, and enforced by state” ... the social sciences considers law: “a set of rule or norm, written or Unwritten, about right and wrong behavior, duties and rights” 34 as well: 35 “As the ethical control applied to communication, and to language as a form of communication, especially when this normative aspect is under control of some authority Sufficiently strong to give its decision late social sanction”.
The definition only targeted laws limited to norms formulation regardless of empirical roots, thus the essence and legal capacity is not completely agonizing.
The law became isolated from other nonjuridical elements which determining the presence of law in society.
This normative reduction in the contemporary spectrum is 34 Ibid., 35 Ibid., 28.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 183 eliminated by comprehensibly deciphering law.
36 “The law in the broad sense of or whole legal system eith its institutions, rules, procedures, remedies, etc., is society attempt, through Government to control human behavior and rational, fair and workable alternatives to the indiscriminate use of force by individuals or groups in advancing or protecting Reviews their interest and resolving Reviews their controversies.
Law seek to achieve both of order and individual protection, freedom and justice”.
Hence, Anil Divan concludes that: "the law deals with the complexity of human life, and must be closely related to the needs of life".
37 Thus, recently it is not sufficient for the jurist only capable and adept to think juridically.
The jurists (bachelor of law) are demanded to be able to think scientifically in approaching and solving laws problems.
38 Manfred Rehbinder whose his opinions received by Hene van Maarseveen also anticipate the law tendency toward law inspiration.
39 Mastering the law conception as the norms and the facts, each definition must be defined integrally instead of partial.
36 Ibid., 37 Abdoel Gani, “Profesi Hukum: Suatu Orientasi”, (1992) VII 1 Yuridika.
38 Ibid., 2-3 39 Ibid.
Elementary and inadequate knowledge about the positive law (normative) is absolutely necessary.
Only through this way, jurists can obtain through the study or research, it is possible to conduct juridical arguments in the relevance analysis facts that can be controlled and verified scientifically.
40 That affirms a reflection from their suppressors for reference needs that is able to liberate the law from being merely normative and centrifugal-centripetal practical.
Intrinsic expressive verbis is important to be used for an approach that is able to ascertain and describe law as a whole, namely: System Approach.
Lili Rasjidi and I.B.
Wyasa Putra stated:”The complexity of this problem will be very difficult to sift through an autonomous approach and therefore the systems approach in order to restore law towards its essential characteristics became clear.
Along recovery, the relevant approach is important”.
Presumably the use of system approach in assessing the substance of the law can be understood as an option that will not be mistaken and have clear argument.
What is the "system approach"?
System approach frames the object of study as "the wholeness" of a system.
If the system approach is used to concept the law, logically law also accepted as a system.
As a 40 Gr.
Van der Burt & J.D.C.
Winkelmean, “Penyelesaian Kasus, Pro Justitia”, (1994) XII 1 Pro Justisia.
184 system, the law system has also characters as follow: input, output, and feedback.
41 Elegantly, Lawrence M. Friedman affirms: “Whatever character one assigns to the legal system, it will have features common to every system or process, first, three will be inputs, raw materials which enter at one end of the system.
A Court, for example, does not begin to work, unless someone makes the effort to file a complaint and set off a lawsuit.
Even earlier, some concrete act has served as a trigger: A policemen arrests a man, a landlord harasses a tenant; a man is defamed by his neighbour, injured by a speeding car, deserted by his wife.
Physically, lawsuit begins with pieces of paper, pleading filed in court; without these no trial is possible in our society.
What happens next, the court produces an out puts a verdict or decision; sometimes the court hands down a general rule as well.
The courts may dicide for the plainitiff, or for the defendant, or reach some compromise.
The result is initiative event an output, even if the court simply refuses to hear the case, moreover, the output may be ignored or not, may have a large or a small effect flows back into the system.
This process bears the name of feedback.
One can speak of feedback more generally to mean the way product or output of a system turn back on and affects the system itself”.
42 Thus, the law can not be considered merely an abstract normative rule called “de wetten papieten muur.
Laws must be understood against the society background in the proper definition.
Various rules of law 41 Ludwig von Bertalanfy, General System Theory: Foundation, Development, Application, (New York: George Braziller, 1972) ; Tatang M. Amirin, Pokok-pokok Teori Sistem, (Jakarta: Rajawali Pers, 1996), 50.
42 Lawrence M. Friedman, The Legal System, A Social Science Perspective, (New York: Russel sage Foundation, 1975), 11-12. must be considered in a logical and consistent entity relationships.
43 Given the law system is a system of social rules, 44 with component of substance, structure and culture.
IV.
CONCLUSIONS AND SUGGESTIONS What we have been gained?
Now we must be able and willing to build a common perception that the law substance is the set of rule and norm, commonly called as the legislation (algemene verbinde voorshriften).
45 In addition, the substance is composed of substantive rules about how institution should behave.
The substantive rule of law is included in and outputs of a legal system.
46 Within the structure framework of legal system.
The legal structure related to "law enforcement".
Lawrence M. Friedman stated that: The structure of a system is its skeletal framework, it is the permanent shape, the institutional body of the system, the tough, rigid bones that keep the process flowing within bounds.
47 43 D.H.M.
Meuwissen, “Teori Hukum”, (1994) XII 2 Pro Justitia, 20.
44 Saudara Ananda, H.L.A.
Hart, “Pemikir Hukum Analitis”, (1995) XIII 4 Pro Justitia, 16.
45 Laica Marzuki, “Sumber Daya Aparatur Hukum, (Legal Human Resources) dalam Konteks Komponen sistem Hukum”, (1997) XV 4 Pro Justitia, 4.
46 Ibid.
47 Ibid Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 185 The ideal law substance, if it‟s not formulated from law culture of the citizens, the law substance is merely a blueprint or a design only.
The legal culture "means attitudes, values, and opinions held in society, with regard to the law, the legal system, and its various parts", 48 so that culture is like "a working machine" of the legal system.
Moreover, with the different rhetoric, but the same substance Cees Schuyt argued that the law has three elements, namely: ideal elements, operational elements, and the actual elements that create a legal system.
Ideal element consists of rules, norms, and principles.
Operational elements are covering the entire organization and institutions, including its ambtsdrager.
The actual element is the overall verdict and concrete actions related to the meaning of the legal system.
So it is relevance if Berman explains broad legal definition: 49 “This is the law, as some influential writers have said, is essentially a body of rules related to each other by logical consistency, than an Appropriate technique for its study is that of conceptual analysis that is, comparison of word with word, concept, According to stated criteria of reasoning.
If, on the other hand, to take another definition of law is essentially an instrument of 48 Setsuo Miyazawa, “Taking Kawashima Seriously, A Review Of Japanese Research on Japanese Legal Conseiousness and Dispoting Behavior”, (1987) 21 2 Law & Society Review, 221.
49 Hadiati Koeswadji, Hukum dan Masalah Medik, (Surabaya: Airlangga University Press, Surabaya, 1984).
political control, then an appropriate technique for its study is of political control, then an appropriate technique for its study is of political analysis, that is a comparison of and the political consequences of alternative legal rule or a legal institution.” By understanding the law as a whole as well as its system components, intrinsic adequate for the law; The law is a fact or rule.
Law has a normative nature that aims to influence human behaviour, as well as to be presented as factual data.
The conceptualization of law will make the law has a dialectic nature between facts and rules, form and content.
Law assessment will not be stopped in the unilateral antinomy: the form of the content, the rules of the facts, but rather try to think in a systemic relationship.
D.H.M.
Meuwissen pointed out: "Het recht is nu niet eenmaal uitsluited norm of uitsluitend feit: het is beide.
Van striped daarbj is het gezichtspunt van het recht bescouwet waarruit men.
Maar die zijn niet gezichtspunten willekeur: er moet worden een getracht daarin bepaalde Ordering (eenhieid) te denken.
Alle denken is immers op eenheid (algemeenheid) geicht '.
(The law is not merely a fact: it is both).
What matters to law is the point where people look at that law.
However the points of view wa: in it must be cultivated to think of an arrangement (keastuan) specific.
All thoughts directed towards unity (generality), doesn‟t it?
Reflecting the systemic aspects of the law as a whole: law viewed as a rule system or as a social fact is not disputed, but it‟s synergized.
Law substance will acquire its 186 normative meaning only from rules followed in behavior that can be seen as empirical data to be presented and explained.
However, optically against and not the most extensive.
This thought will be able to centralize law is not just a normative abstraction, but also in its form as the totality of empirical phenomena that exist in social entities.
This way, law can be understood in the sense of a dynamic, not static, and not general from the juridical elements.
In the reformation era, only conceptual understanding that has the relevance.
Satjipto Rahardjo has proper statement that: The academics and practitioners should discuss together about how the transformation can be carried out carefully.
Today already afternoon to bring a legal system that is completely capable "to bring justice to the people".
REFERENCES Journal Articles ............., ‘Profesi Hukum: Suatu Orientasi‟, (1992), VII 1 Yuridika, 30-47 Arief Sidharta, B., „Implementasi Hukum Dalam Kenyataan‟, (1995) XIII 3 Pro-Justitia, 25-40 De Wild, A.H., ‘Pendidikan Hukum: Antara Ilmu dan Profesi‟, (1994) XII 1 Pro Justitia, 5-25 Hadjon, Philipus M., „Pengkajian Ilmu Hukum Dogmatik (Normatif), (1994) IX 6 Yuridika, 28-41.
Marzuki, Laica, ‘Sumber Daya Aparatur Hukum (Legal Human Resources) Dalam Konteks Komponen Sistem Hukum‟, (1997) XV 4 Pro Justitia, 6780.
Meuwissen, D.H.M., ‘Teori Hukum‟, (1994) XII 2 Pro Justitia, 56-73.
Books Algra, N.E., Pengantar Ilmu Hukum, (Bandung: Binacipta, 1991).
Amirin, Tatang M., Pokok-pokok Teori Sistem, (Jakarta: Rajawali Pers, 1996).
Bertalanffy, Ludwif Von, General System Theory, Foundation, Development, Application, (New York: George Braziller, 1973).
Black, Donald, The Behavior of Law, (New York: Academic Press, 1976).
Bruggink, J.J.H., Rechtsreflecties, Grondbegrippen uit de rechtstheorie, (Netherland: Kluwer-Deventer, 1993).
Curzon, L.B., Jurisprudence, (New York: Academic Press, 1979) Friedman, Lawrence M., The Legal System: A Social Science Perspective, (New York: Russell Sage Foundation, 1975).
Fukuyama, Francis, The Great Disruption,Human Nature and The Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 187 Reconstitution of Social Order, (New York: The Free Press, 1999) Koeswadji, Hermien Hadiati, Beberapa Permasalahan dan Pembangunan Hukum, Hukum dan Pendidikan Hukum, Hukum dan Bantuan Hukum, (Surabaya: PT.
Bina Ilmu, 1980).
Nonet, Philippe, & Philip Selznick, Law and Society in Transition: Toward Responsive Law, (New Yorl: Harper & Row, 1987).
Notohamidjojo, O., Demi Keadilan dan Kemanusiaan: Beberapa Bab dari Filsafat Hukum, (Jakarta: BPK Gunung Mulia, 1975).
Rasjidi, Lili, Filsafat Hukum Apakah Hukum Itu, (Bandung: Remadja Karya, 1985).
............, & I.B.
Wyasa Putra, Hukum Sebagai Suatu System, (Bandung: Remaja Rosdakarya, 1993).
Santos, Boanventura de Sousa, Toward New Common Sensel Law, Science and Politics in The Paradigmatic Transsition, (New York: Routledge, 1975).
Susanto, I.S., & Tanya, Bernard L., Wajah Hukum Di Era Reformasi (Kumpulan Karya Ilmiah Menyambut 70 Tahun Prof. Dr. Satjipto Rahardjo, SH), (Bandung: Citra Aditya Bakti, 2000).
Sawer, Geoffrey, Law in Society,(Oxford: Clarendon Pers, 1973).
Soekanto, Soerjono, Penegakan Hukum, BPHN, (Bandung: Binacipta, 1983).
Soemitro, Ronny Hanitijo, Masalahmasalah Sosiologi Hukum, (Bandung: Sinar Baru, 1983).
Arief Sidharta, Refleksi Tentang Hukum, (Bandung: Citra Aditya Bakti, 1996).
Van Dijk, P., et.
Al., Van Apeldoorn’s inleiding Tot de Studies van het Nederlandse Recht, W.E,J.
(Zwolle: Tjeenk Willink, 1985).
Papers (Unpublished and Published) Gani, Abdoel, Analisis Sistem; Suatu Orientasi, Kursus Dasar-dasar Analisis Mengenai Dampak Lingkungan, (Paper presented at Lemlit Uniar, Surabaya, 1986).
Rahardjo, Satjipto Rekonstruksi Pemikiran Hukum di Era Reformasi, (Paper presented at National Seminar Menggugat Pemikiran Hukum Positivistik di Era Reformasi, Semarang, 22 Juli 2000).
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188
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 145 THE EMBODIMENT OF EFFICIENCY-JUSTICE PRINCIPLE IN INDONESIAN RETAIL REGULATIONS Edwin Tulandi 1 , Prof. Dr Suhariningsih 2 , Dr. Sihabudin 3 and BambangWinarno 4 1 Doctoral Candidate, Law Faculty, Brawijaya University 2 Law Faculty, Brawijaya University 3 Law Faculty, Brawijaya University 4 Law Faculty, Brawijaya University Email: edwinstevenedwin@yahoo.com Submitted: 2017-03-27| Accepted: 2017-08-29 ABSTRACT Retail regulations is one of national sector which is impacted by globalization on the legal aspects in Indonesia.
The dynamics of the traditional retail (traditional market and mom and pop store) management in some areas tend to have an orientation on increasing local revenue which can be seen in the management of irregular traditional market management and transition of traditional market to the private sector.
On the other hand, the proliferation of modern retail which is side by side with traditional retail is a form of arrangement that is not in accordance with the retail 's designation/purpose.
This indicates that the efficiencyjustice principle that aims to create a balance turns more to the efficiency of the exclusion of justice for traditional retail.
This paper aims to analyze the embodiment of Efficiency-Justice Principle in Indonesian Retail Regulations.
The method used in this research is normativejuridical method, which analyze existing national retail regulations.
It proposes appropriate method in embodying Efficiency-Justice Principle in Indonesian Retail Regulations.
Keywords: Efficiency-Justice Principle, Retail Regulations, Modern Retail, Traditional Retail I.
INTRODUCTION One of the serious problems we face in the economic development of Indonesia is the legal framework and constitutional practice in the development of economic policies.
Suitable and updated legal framework will support economic development.
This is based on the globalization and liberalization that began entering various aspects and life of the nation.
Globalization is not a new phenomenon, but it is the result of a long process that comes from the interaction of various factors such as advances in communications technology and transportation, the spread and the propagate of capitalism, the political victory or neoliberal New Right group, and the hegemony of science.
1 Positive and negative effects also appear along with the roots of globalization and the supporting factors start 1 Budi Winarno, Melawan Gurita Neoliberalisme, (Jakarta : Erlangga, 2010), 56.
DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.01 mailto:edwinstevenedwin@yahoo.com http://dx.doi.org/10.21776/ub.blj.2017.004.02.01 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 146 sticking in in regulation and Indonesia's government policy.
One of its positive impacts of the liberalization of the economy is the increase in trade performance.
But it should be remembered that trade liberalization is not as smooth as imagined, as most countries experienced economic damage systematically.
Regionalism in trade is perhaps preferable, for instance the ASEAN‟s arrangement in economic regionalism, which later known as ASEAN Economic Community (AEC).
While such regionalism requires certain preparation for affected countries, such arrangement move states parties towards better economic development.
The impact is their exclusion or expulsion process against certain economic actors are thrown as a result of the liberal 2 .
Moreover, economic liberalization may lead to social inequality if it does not regulate correctly.
Exclusion of the economic agents as a result of liberalization can be seen from the elimination of traditional retailers in the retail industry.
Many Indonesian people are included in the retail industry, especially those belonging to the category of small and medium-sized enterprises (SME).
In its development, these small vendors dominating the number of workers in the retail industry in Indonesia.
These vendors then turned into merchant in traditional 2 http://indef.or.id/id/berita/detail/551/dampak-positifdan-negatif-liberalisasi-ekonomi-menurut-ekonomindef.
diakses tanggal 15 maret 2016. markets.
Grocery store's merchant even get into the retail informal industry, they become one kind of vendors called street vendors (Ind: pedagang kaki lima).
The emergence of these vendors is a matter that can not be avoided due to the rapid population growth each year, but it does not offset the growth of employment.
3 The placement of modern retail market that competes with traditional markets is not appropriate way to be done.
The competition that happens supposed to be a competition between modern retail versus modern retail industry, or traditional retail industry versus traditional retail industry.
The problem arises when there is a modern retailer who takes part in the traditional market life so the customers from traditional market are also being targeted by modern retail market.
Almost all traditional market turnovers have decreased to 75%.
4 The phenomenon of modern retailers which take part in the life of traditional markets is a global phenomenon that triggered by the liberalization of foreign capital investment and occured in almost every country.
According to Readon, the market share of modern retail in food commodities in South Korea, Thailand, Mexico, Poland, and Hungary, has reached more than 50%.
Meanwhile, it has reached around 70-85% 3 Positioning Paper Ritel, 2010, Jakarta, 4.
4 Dedie S. Martadisastra, Persaingan Usaha Ritel Modern dan Dampaknya Terhadap Pedagang Kecil Tradisional, Jurnal Persaingan Usaha, (Komisi Pengawas Persaingan Usaha, Edisi 4, 2010), 68.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 147 Brazil and Argentina, and it has reached around 70-85% in West Europe.
Readon warned that the market share of one-third to one-half by the modern retail is very prone to incur the potential costs of economic, social and cultural.
5 Efficiency-Justice Principle is a part of the principles in the administration of the economy based on economic democracy.
The Efficiency-Equity Principle is included in the Constitution of the Republic of Indonesia Year 1945.
So then as a consequence the Efficiency-Equity Principle should be the basis of efficiency in the implementation of the economy of Indonesia.
Retail regulations regulate traditional retail and modern retail which contains the relationship to the central and local government.
It also addresses the problems of retail as well as the rights and obligations of traditional retail and modern retail.
Retail Regulation is referred to the Law No.
7 of 2014 about Commerce, Law No.
20 Year 2008 on Micro, Small and Medium Enterprises and the Presidential Decree No.
112 Year 2007 on Management and Development of Traditional Markets, Shopping Centers and Modern Stores.
Minister of Trade Regulation No.
70 Year 2013 on the Management and Development 5 Ninuk Rahayuningrum dan Tjahya Widayanti, Kajian Dampak Ekonomi Terhadap Keberadaan Hypermarket Terhadap Ritel/Pasar Tradisional, (Jakarta: Pusat Litbang Perdagangan Dalam Negeri dengan PT IDEF Iramadani, ), 2014. of Traditional Markets, Shopping Centers and Modern Stores.
The presence of this retail regulations did not dispel concerns about the exclusion of traditional retail.
The imbalance between efficiency and equity in the application of the Efficiency-Equity Principle in the various regions are often felt by traditional retailers.
This happens due to the orientation of retail regulations in more areas leads to efficiency simply by ignoring the values of justice.
The effect of globalization encourages most local government to further increase own-source reveneu (OSR) by allowing modern retailers are flourishing in the region without explicit permission (retail bulging) and it doesn't compensate with the increase of empowerment of the traditional retail, both the local markets and/or traditional markets.
Based on the background described above, this paper aims to analyze the embodiment of Efficiency-Justice Principle in Indonesian Retail Regulations II.
LEGAL MATERIALS AND METHODS This type of research is classified into normative research or legal research literature.
The emphasis of this research is using a legal substance, not the data so that the primary data used is merely to strengthen, equip and support.
Secondary Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 148 data sources is accessed through a data source library (library research), which consists of primary legal materials and secondary law.
The approach used in the study problem is of course adjusted to the subject matter which is the focus of research.
This study used three approaches: philosophycal approach, statute approach, and conceptual approach.
III.
RESULT AND DISCUSSION 1.
Efficiency-Justice Principle as a Part of the Economy Enforcement Based on Economic Democracy.
Economic Democracy can be found in Article 33 Paragraph (4) of the Constitution of Republic Indonesia which states: "National economy organized based on economic democracy with the principles of togetherness, efficiency-equity, sustainability and environmental insight, independence and by keeping a balance between progress and unity national economy ".
According to Mohammad Hatta, economic democracy is the sovereignty of the people which is seen as an ideal of "genuine democracy" of Indonesia.
He explained further that Indonesia's democracy was supposed to be a continuation of a genuine democracy in Indonesia.
"Genuine democracy" of Indonesia itself contains: i) the ideals that live in the hearts of the Indonesian people from ancient times to the present and did not escape because of the oppression of the various form; ii) the ideals of past protests, which is the right to argue with the general way of all state regulations that are deemed unfair (the basis of the demands in order to get the freedom of movement and assembly of the people); iii) ideals of helping.
The genuine democracy of Indonesia contains two characters: i) the first character is to take decisions by consensus is the foundation of political democracy, ii) the second character is mutual help and mutual cooperation is a good principle to enforce economic democracy.
6 The dynamics of the international economic and national push the changes to the enforcement of economy of Indonesia.. As a reaction in overcoming the economic developments without leaving the noble values of "Genuine Democracy" of Indonesia, the Economic Democracy juxtaposed with principles which based on the noble values of "Genuine Democracy" of Indonesia.
Those principles are referred to in Article 33 Section (4) of the Constitution of the Republic of Indonesia Year 1945 which are: i) the principles of togetherness; ii) the efficiency-equity; iii) sustainable; iv) environmental; v) independence, vi); 6 Mohammad Hatta, Demokrasi Kita (pikiran-pikiran tentang demokrasi dan kedaulatan rakyat), (Jakarta: Sega Arsy, 2014), 39.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 149 balanced progress; vii) the unity of the national economy.One of the principles of economy democratic is the EfficiencyEquity Principle.
Efficiency is closely related to competition, because it can be said that the rivalry or competition can drive or be able to embody the efficiencies.
A competition is a condition where the businessmen are trying to be as effective as possible to allocate resources.
Competition aims to ensure the efficient use of resources and motivating a number of potential available.
Competition can be both positive and negative implications.. From the positive side, competition may encourage businesses to use resources optimally.
While the negative implication is to run a competition for free (free fight liberalism) and negative behavior in Law No.
5 of 1999 on Monopoly and Unfair Competition as prohibited behavior that includes activities that are prohibited and banned agreement.
Regarding to the efficiency itself, Mubyarto stated that the pursuit of efficiency has its limits in the form of moral restraints, not a technical limitation.. How do we put the limit of moral boundary?
Moral boundaries can be held if we could be sincere.
This prompted economic justice.
Economic justice appear to be a problem in the community if people start to worry (concern) that the atmosphere of competition in the economy and the business community to walk in a way that justice is disturbed or it gets harder to embody it in their lives.
The realization of social justice depends on the implementation of the principle of economic justice.
Economic justice is the rule, while social justice is the consequent feeling of security and peace in the community because the rules adhered to by all members of society without exception.
Advanced and modern society as an ideal society is a society that can maintain a balance between continuous progress through the efforts of efficiency and peace for the realization of justice.
For the sake of progress and peace of society, both economic justice and efficiency elements have the similar important position.
7 Mubyarto's opinion represents the reason why the word efficiency paired with the word equity into the efficiency-equity.
Be aware that the movement of the economy of Indonesia will not grow if it does not carry out the efficiency as well as possible, but as a result, the values of justice in society will be eliminated as a result of the limited efficiency.
Therefore, to achieve the objective of the Constitution of the Economy of Indonesia in the form of general welfare, the efficiency of which emphasize competition must be balanced with social justice, the balance between competitors (businesses) and cooperation, 7 Mubyarto, Sistem dan Moral Ekonomi Indoensia, (Jakarta: LP3ES, 1994), 114.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 150 which on the one hand as a competition and on the other side as a justice.
a.
Efficiency Principle of Justice Application in Retail Management Retail development in counties is facing with management and arrangement that is not suitable and parallel with efficiency principle of justice, public market management as a part of national retail should managed by micro, small, and middling agency, but in reality it were managed by Local Revenue Offices, public market that should have become one of the national economic backbone is helpless because it just have been seeing as source of income without existence of reciprocal.
As a result, it public market was always be ignored.
One of the alternative which have practiced in several counties is by switch to private management, but with considering private management profit orientation, this is not a correct decision by seeing how expensive the stall rental price.Beside the problem of public market management, retail management in counties is also have related problem.
Based on President‟s Rule number 112 year 1007 about Traditional Market, Shopping Centre and Modern Store article 3 clause 1 state‟ “establishment of Shopping Centre and Modern Store must refer to the spatial planning of the district/city and detailed plan of district/city spatial planning, that also include zoning plan” The existence of Rencana Tata Ruang Wilayah ((Spatial Plan) RTRW) or Rencana Detail Tata Ruang Wilayah ((Detailed Spatial Plan) RTDRW) and Zoning Regulation is requirement from central government to regional government to give permit to retail businessman so they can do their business.
However, seeing facts in the field that until now not all of the regions have RTRW or RTDTW and zoning plan.
But in condition of many modern retail that even stand next to the traditional retail, shows lack of government intervention dealing with retail problem.
Retail management and arrangement just as described above, shows the imbalance of efficiency principle of justice in retail management where the term efficient in this case is shown by disregard the value of justice to traditional retail.
If this will be applied in retail arrangement, then what kind of efficiency and justice that should exist to create balance as the purpose of efficiency principle of justice.
b.
Efficiency in Perspective of Business Competition Efficiency relates with use of resources, which mean human, machine, raw material, and other materials was used to produce biggest possible output.
Thus there no input that useless or in vain.
Efficiency today also means that products and services that being produced is judged highly by consumer so where their choice Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 151 were not distorted.
Efficiency in future will obtained and from incentive for innovation that increase product quality and service even in improvement in production process.
Increase of production with low cost, as innovation that will produce new, better products and services.
Productive use of resources will give consequence in bigger output, then will give bigger economic growth and wealth to the nation.
Lower price will give consumer higher income then will spend it in other transaction, investment, or for savings.
Total of surplus or wealth from consumer and producer get bigger.
Thus policy to control competition will help business reach their beneficial goal to the society that will increase total surplus in the future 8 Business competition scene will not materialize with acts of anti-business competition.
Business scene that grow playing field level is a healthy competition.
In level playing field there are three equalities: (1) Equal opportunity, means equal business chance to where there is no discrimination.
(2) Equal accessibility, where there are no businessmen who are being banned to enter the market.
For example: there is no businessmen who banned to get bank credit.
The important point here is every of them who got the opportunity was through the healthy business competition process.
(3) Equal 8 Andi Fahmi Idris dkk, Hukum Persaingan Usaha Antara Teks dan Konteks, (Jakarta: GTZ, 2009), 17. treatment, that is government treat every businessman equally.
In level playing field retail context there must be no wrong understanding, with giving equal chance between modern retail and traditional retail that is by give modern retail variety of facilities, equal treatment is necessarily apply to give equal chance to fellow modern retail.
If it was given to both of the retails equally it will result in traditional retail collapse.
Retail modern with their market power should not get equal treatment with traditional one, but level playing field related with equal treatment in competition perspective were reserved for traditional retail and traditional retail, modern retail and modern retail.
c. Empowerment Traditional Retail and Retail Equitable Arrangement Empowerment Traditional Retail Law empowerment is a concept and purpose.
As a process, law empowerment covers the use of law to increase life standard for group of people who are unlucky through combination of education and action.
As one purpose, law empowerment is a real achievement by the group in increasing their life standard through law.
9 9 Bank Pembangunan Asia, 2000, Pemberdayaan Hukum Untuk Meningkatkan Tata Pemerintahan Yang Baik Dan Mengurangi Kemiskinan, (Jakarta: The Asia Foundation Sembrani Aksara Nusantara, 2000), 10.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 152 Law empowerment is highly related with justice, because it makes the unlucky group as centre of their attentions.
Thus, the hindrance that make they can‟t develop can be get rid by build a law system that can be allow them to develop and independent.Discussion related with this, about people to get partisanship has delivered many times by John Rawls in his book Theory of Justice, he had an argumentation on human who have been rational in their “original position” that they will have two principle of justice.
According to him, the first principal state that every people have right on the most extensive system of basic freedom that have fair proportion with similar system for other people.
Second principal state; (a) evenly spread in terms of social and economic is fair if it is benefiting the most unfortunate people in society and ;(b) attached to open positions and offices for everyone.
10 Empowerment always refers to unfortunate group in society that frequently becomes a victim of economic development especially in this globalization era.
This was experienced by traditional retail whether it using public market facility or using traditional stall.
Therefore, ideal empowerment model to traditional retail is to rest on them 10 Pan Mohamad Faiz, „Teori Keadilan‟, (2009) v. 6, n 1, Jurnal Konstitusi, 135.
Empowerment process gradually can be done by three phase; 1) Initial phase; 2) Participatory process; 3) Emancipatory process.
11 These three phases is highly relevant if applied to traditional retail empowerment.
Initial phase is empowerment phase by government to the people, participatory phase is empowerment phase by government with the people, and for emancipatory phase is empowerment phase for the people by the people.
These phases were because in harmony with family value that become a basic of Indonesian economy, where that joint ventures done not just by people, in this case traditional retail, but it also need togetherness of every nation element from government, businessmen and the people itself.
Initial phase, empowerment in this phase put crucial role to the government because in this phase the people is passive, that what has been planned will be implemented by the people.
Therefore, government planning should make the economic constitution as the foundation in every policy that will be taken.
It also relevant with how to maximize each provincial potential without abandoning the values that have outlined in Indonesian Economic Constitution.
Empowerment in 11 Masykuri Bakri, Dekonstruksi Jalan Terjal Pembangunan Negara Dunia Ketiga Perspektif Pendidikan, Pemberdayaan, dan Pelayanan Publik, (Surabaya: Visi Press Media), 2011, 47.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 153 this phase is to emphasize to how build conducive business climate to retail industry, business climate can grow by; a.
Traditional retail funding, funding for them can be one of the problem that have made traditional retail have difficulty to progress and develop, in order to make them still exist funding access is needed.
Government in this case become funding facilitator to traditional retail through their funding institution with make ease of the credit requirement.
b. Revitalization, all this time image of slump and dirty from traditional retail have become problems to traditional retail that use public market.
Thus, development or rejuvenation (revitalization) of unfeasible public market is needed.
Public market revitalization that empowering is emphasize interest of businessmen of public market, not interest of political elite or other interest in the name of nation or efficiency mask.
In empowering revitalization, public market displacement must be based on result of discussion with related businessmen, not based on unilateral regional government decision.
This also applied public market construction which needs dialogue to be in tune with family value based on joint ventures of related side (government, businessmen, and the people) that use the facility.
c. Partnership, empowering traditional retail besides it needs government‟s help, it also needs help of the third party, and the solution is partnership.
d. Trade promotion, in some regions, it is found out that one of the reasons why the public market is difficult to improve is because the citizen do not have the right to promote the trade, while the promotion is a form of government‟s concern and acknowledgement towards the existence of public market, it is realized that not all of public market can show their uniqueness which exhibit its regional specialties, so it is slipped form government‟s concern, this is the thing which makes public market is difficult to improve.
Participatory phase, a process of empowerment that comes from the Government together with the society, and reserved for people.
In the context of retail, empowerment is carried out by the government, which in this case the local government together with the traditional retail businessmen.
The empowerment in this phase is related with the traditional retail management and the forming of associations to attract the businessmen, with various government policies on the first phase then continued to this phase which is how the local government becomes the Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 154 manager (for public market) also the manager supervisor (for public market managed by private) or even becomes the management supervisor facilitator (for traditional food stall) traditional retail.
Emancipatory phase, this is the last phase where the empowerment process comes from people to people featured with government and society supports.
In the context of retail, this phase is about how traditional retail builds trust for society thus they can shop in traditional retail.
Retail Arrangement Arrangement Retail is one instrument in realizing the protection of justice for Retail Traditionally, if viewed with the theory of legal protection according to Satjipto Rahardjo, that in traffic in the interests of no interests colliding therefore by to safeguard the interests of the one done by limiting interest another, and if it is associated with John Rawls's theory of justice related to the second priority of justice, which is the first principle of equality (the same freedom) applies in advance of the second principle the principle of distinction.
Based on the second theory was that if it is associated with the retail that restrictions interests by modern retail should not be done by prohibiting modern retail to strive or standing in an area, as opposed to the first priority in a theory of justice of John Rawls, thus restrictions to modern retail is done in the perspective of spatial planning is not restricted in meaning in decline but the restrictions in the sense in governance.
Dynamics of policies by local governments, which until now will be full of injustice is felt by traditional retailers.
Structuring often justifying the exclusion of the traditional retailers either by means of public market trading and those that use traditional means of trading stalls.
Injustice for traditional retailers can clearly be seen from the presence of modern retail side by side (with a very close distance) with traditional retail.
This can lead to a decrease in profit resulted traditional retailers out of business.
The problem of distance, which for most areas did not even set the ideal distance between traditional retail and modern retail, it is also coupled with the emergence of modern retail bulging as if in spite of surveillance by local authorities.
In the context of the retail arrangement does not mean denial or restriction for modern retailers to be able to get into areas, because rather than rejected or restricted it is not appropriate and in line with the principles of efficiency, as well as justice for modern retail, and therefore the arrangement of a solution in developing traditional retail and modern retail together.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 155 Fair arrangement is directed on the definition of Democracy Economic System, which are Pro Poor, Pro Job, and Pro Growth.
Its implementation will be applied on the arrangement planning.
Pro poor in retail context is the alignment on traditional retail, retail arrangement which takes side on traditional retail is meant to make the traditional retail as the center of concern.
It means when organizing retails then the traditional retail is not the one which should adapt with the invation of modern retail, but it supposed that the modern one which has to fit the traditional retail instead.
But, modern retail development in districts instead shows evictions and displacement of public market under the name of revitalisation which often occured.
The same thing also dirasakan by the traditional shops (warung) which are helpless due to the development of modern retail.
Pro Job in retail means to buld retail as seen from the capacity of retail in a certain industry called Retail Industry.
By looking through the industrial context, the existences of traditional dan modern retail become a unity.
Retail industry existence can emerge job vacancies, this is because estimatedly the retail industry do not need special skills as the requirements.
Retail industry can also present the diverse patterns of service toward consument (society) for social and cultural traditional retail, and for modern retail featured with its efficiency and effectiviness presents a service pattern that developed in accordance with times.
Pro Growth, the clarification of spatial planning known by the appearance of urban spatial planning, and commonly, the urban spatial planning is always identified as the physical planning alone, namely an overview of city, parks, residential buildings, office buildings and other planning.
However, by the rapid time development, a physical planning may not be appropriate anymore because there are more than just a physical plannning in forming urban planning.
There should be a control following the retail planning and utilization.
Thus, based on Article 1 Point 15 of The Law of Republic of Indonesia Number 26 Year 2007 regarding Spatial Management, Spatial Management Control is an effort to realize an order of the spatial use.
There are five instruments or devices in implementing spatial utilizaiton control namely; the determination of zoning regulations, permits, incentives & disincentives and the imposition of sanctions.
All those instruments will be organized by the local government as the authority.
1.
Zoning Regulations, Zone is an area or a region which has specific environment characteristics and functions.
Therefore, it can be ascertained that a zone is having a certain identity or characteristic Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 156 that is different from other area.
While Zoning is a regional division into several zones in accordance with the original function and characteristics or directed for other functions development.
Zoning regulation can be defined as a regulation which organize clarification, notation and codification of basic zones, terms of use, construction rules and procedures of development implementation.
Zoning regulation is one of device in plannning spatial of a certain area, in which the spatial plan of the area has macro to micro plans level.
Zoning regulation can also be functionalized as the controller of an area and city development implementation there it can be done precisely; a) Operational device of spatial utilization control; b) Reference in giving permission for traditional dan modern retail c) .Reference in giving incentives and isincentives; d) Reference in the imposition of sanctions toward retailer who violates the regulations; e) As the reference in developing and using an area in purpose of retail.
2.
Licensing, according to Ateng Syafrudin, licensing is distinguished into 4 types, which are; a) Permission, for the purpose of eliminating obstacles, allowing the prohibited one, rejection toward permission that needs limited formulation; b) Dispensation, to break through the obstacles that formally prohibited.
Therefore dispensation is a special case.
; c) Licence, is a permission given to a company in order to organize some activities; d) Concenssion, is a permission connected with a serious work related to public interest that supposed to be the government‟s duty, but the work is granted by the government to the concessioner who is not from government official.
It could take a form of contractual or combination or license featured with some status awarding with its rights and obligations and also some certain requirements.
Based on the explanation of Article 37 Subsection 1 The Law of Republic of Indonesia Number 26 Year 2007 regarding Spatial Management, Licensing is about the one related with spatial utilization permission in which according to the Law regulations, it has to be owned before implementing the spatial utilization.
The permission referred here is the location permission/spatial function, space envelope and spatial quality.
In the context of spatial management, lisencing is the form of spatial management control in district and municipality area.
The licensing mechanism naturally aims to; a) Controlling some certain activities; b)Preventing harmful impact on enviroment; c)The motivation of protecting certain objects; d)Distributing limited objects.
Licensing in retail Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 157 arrangement begins from point C in the aims of licensing, which is the motivation of protecting certain objects.
Certain objects referred here is the traditional retail, while the motivation of protecting certain objects is based on retail spatial management plan which is pro poor, pro job and pro growth as it becomes the description of Economic Democracy.
3.
Incentives and Disincentives.
The devices of spatial management control is needed to embody the proper spatial planning.
As referred in Article 38 Spatial Management Law Number 20 Year 1999 regarding Spatial Management, the instruments used here are Incentives and Disincentives.
Incentive is a device or an effort of giving rewards toward an implementation of activity that is parallel with spatial management namely; a) tax relief, compensation, cross subsidization, rewarding, spatial rent, and stock participating; b) infrastructure procurement and development; d) easiness of licensing procedures; and/or; d) presenting reward to society, private and/or local government.
Disincentive as mentioned in Article 35, is a device to prevent, limit the growth, or reduce the activity that is not in line with the spatial management plan, namely: a) a high tax imposition which is adapted with the cost required to overcome the impact cause by the spatial utilization; b) and/or infrastructure provision restrictions, compensation imposititon, and penalty.
The direction of incentive imposition for traditional retail is in the form of; a) Tax relief; b) Infrastructure procurement and development on public market trading facility; c) Easiness in licensing process.
The direction of incentive imposition for modern retail is in the form of award for obedient modern retail.
The direction of disincentive imposition for traditional retail in the form of penalties for traditional retail that ignore its surrounding in business.
The directions of disincetive for modern retail are in the form of; a) higher tax; b) restriction for infrastructure provision; c) compensation; d) applying incentive.
Incentive and disincentive are the directions referred by local government in retail management.
Disincentive is not only applied on modern retail but also for traditional retail.
Therefore, the spatial used by the traditional retail will be protected too.
Disintecsive for modern retail is a form of prevention toward the diminished traditional retail as the impact of competition among modern retail.
4.
Sanctions Imposition, which is one of the spatial control effort.
It is intended to be an enforcement action over the spatial usage that is not in accordance with the Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 158 spatial plan and zoning.
The imposition of sanctions is not only given for unsuitable spatial utilization, but also for the government authorities who do not publish the permission in accordance with the spatial plannning.
These sanction directions are the reference in impositioning sanction toward; a) unsuitable spatial use as referred from spatial structure plan and national spatial pattern; b) violation of the provision of national system zoning regulation direction; c) spatial utilization without its permission as issued from National Spatial Plan; d) unfitness spatial utilization as referred on the permission issued from National Spatial Plan; e) violation of provision stipulated in spatial utilization permission requirements issued from National Spatial Plan; f) spatial utilization that impedes the access toward the area in which as stated by the legislation, belongs to public; and/or; g) spatial utilization permission that deviates from procedure.
In retail management, sanctions imposition are intended for; a) spatial utilization that unsuits the spatial pattern plan; b) the violation toward ideal distance between traditional retail and modern retail; c) the violation in stipulating the analysis of socioeconomic condition; d) Spatial utilization without any permission; e) Spatial utilization permission deviates from licensing procedures.
IV.
CONCLUSIONS AND SUGGESTIONS An ideal Retail arrangement is a systematically structured arrangement from the central regulations to the local one and applying EquityEfficient Principle as the highest law.
1.
Efficiency principle can be seen from the perspective of business competition.
The atmosphere of business competition will not appear if there are anticompetitive actions.
This healthy competition takes a form of business atmosphere that stimulates level playing field.
Inside level playing field, there are several equalities namely; (1) Equal opportunity, the same business opportunity for businessmen without any discrimination.
(2) Equal accessibility, where all the businessmen are fairly not prohibited to enter the market.
The important thing is, for every businessmen who already have the opportunity, they have been through the healthy business competition process.
(3) Equal treatment, means that government should treat every businessmen in the same way.
2.
Empowerrment and Arrangement are applied as referred in the Equity Principle.
The empowerment is held Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 159 through 3 phases which are initial phase, participatory phase, and emancipatory phase.
Those phases are chosen because they suit with family value that becomes the fundamental of the economy of Indonesia, in which the togetherness in business is not only held by the society, in this case the traditional retail, but also needed the from all nations‟ elements such as governments, businessmen, and society.
Furthermore, related to arrangements as referred here, spatial arrangement for retail will be based on Pro Poor, Pro Job and Pro Growth which in the context of retail is a form of alignments toward traditional retail.
A Pro Poor arrangement will make the traditional retail as the center of concern which means the modern retail should be the one that adapts with the traditional retail existence.
Pro Job in the context of retail is to build retail based on the capacity in certain industry namely Retail Industry.
Pro Growth, a retail arrangement planning which underlines the accomodation of each elements both socioeconomic politics and law to develop retail in the context of local and national development.
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[33] Un Security Council Resolutions in the Legal System: Lesson Learned from Singapore Rika Kurniaty1*, Setyo Widagdo2, Patricia Audrey Ruslijanto3, Herman Suryokumoro4 1,2,3,4 Faculty of Law, Universitas Brawijaya 1*Email: rika_kurniaty@ub.ac.id DOI: http://doi.org/10.21776/ub.blj.2022.009.01.03 Submitted: 2022-01-03 | Reviewed: 2022-03-14 | Accepted: 2022-04-19 | Published: 2022-04-30 How to Cite : Kurniaty, Rika, Setyo Widagdo, Patricia Audrey Ruslijanto, and Herman Suryokumoro.
2022.
“Un Security Council Resolutions in the Legal System: Lesson Learned from Singapore”.
Brawijaya Law Journal 9 (1):33-46. https://doi.org/10.21776/ub.blj.2022.009.01.03 Abstract: United Nations (UN) Security Council (UNSC) resolutions (UNSCRs) are adopted by a vote of the five permanent members and ten non-permanent members of the UNSC.
Each UNSCR is understood to be part of the “primary responsibility for the maintenance of international peace and security” of the UN.
The Indonesian government has been encouraged by various parties to make a legal instrument that would enforce the UNSCRs.
Such an instrument would serve to bridge and reduce gaps in the rule of law regarding the enforcement of UNSCRs for nations.
However, the government of Indonesia faces several challenges in implementing legal instruments for the UNSCRs.
This article maintains that it is crucial to study accommodative policies regarding the national enforcement of UNSCRs by considering the example of Singapore.
Singapore has special laws that respond to UNSCRs (The UN Act Chapter 339-UN Act).
UN Act 339 is the legal umbrella in Singapore for the government’s implementation of UNSCRs.
The UN Act is also an attempt by the Singaporean government to carry out its international obligations to the United Nations.
Keywords: democratic legitimacy, national law un, security council resolutions, un act chapter 339 of singapore.
I.
Introduction The United Nations (UN) Security Council (UNSC) is the most powerful international organization in the world, as it can make decisions that bind all member countries in terms of compliance and implementation.
1 1 Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (New Jersey, USA: Princeton University Press, 2007).
For instance, the council can impose sanctions or require military action against a country through the passage of UNSC Resolutions (UNSCRs), a different form of decision from those issued by other major UN agencies.
However, a UNSCR, which is legally binding on its members,2 is often the 2 Marko Divac Öberg, “The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudance of the ICJ,” http://doi.org/10.21776/ub.blj.2022.009.01.03 https://doi.org/10.21776/ub.blj.2022.009.01.03 Brawijaya Law Journal: Journal of Legal Studies 9(1): 33-46 [34] subject of debate.
UNSCRs are considered contrary to the legal principle nec nocent nec prosunt tertiis in international agreements.
This principle is violated in that UNSCRs are binding even on countries that are not members of the UN (countries that have not ratified the Charter or its statutes), as stated in Article 2 paragraph (6) and Article 49 of the UN Charter.
The practice by which the UNSCRs are applied varies from country to country.
Some countries consider UNSCRs to be self-executing treaties, such that resolutions can be directly enforced in national law.
However, other countries consider UNSCRs to non-self-executing.
The active role that the Indonesian government takes in UN shows that Indonesia is committed to strengthening the sustainable global peace and stability.
The Indonesian government has played an active role on the UNSC four times as a nonpermanent member (1974–1975, 1995–1996, 2007–2008, and 2019–2020).
Recently, many parties have encouraged the Indonesian government to create a legal umbrella that would provide enforcement for UNSCRs in domestic.
This is considered important for supporting Indonesia’s role in the international community.
The proposed legal instrument that would function to mediate the enforcement of the UNSCR.
It is widely held that the Indonesian government cannot leave a vacuum in the national law to circumvent its international obligations entailed by the mandate of UNSCR.
The European Journal of International Law 16, no.
5 (2006): 885; Anna Spain, “The U.N Security Council’s Duty Decide,” Harvard National Security Journal 4 (2013): 325–26.
3 Setyo Widagdo and Et.al, Hukum Internasional Dalam Dinamika Hubungan Internasional (Malang: Universitas Brawijaya Press, 2019).
4 Rika Kurniaty, “The Right to Democracy Arrangement Under International Law,” RechtIdee 14, no.
2 (2019): 288–300.
Several challenges must be surmounted by the Indonesian government in implementing UNSCRs in national law.
The first is related to the implementation of Chapter VII of the UN Charter, which impacts individuals’ rights and obligations, as well as those of non-state/corporate legal subjects.
Recently, a legal state of affairs has emerged, in which international law regulates the state as its legal subject and then regulates the rights and obligations of individuals in a country.
3 There has been a paradigm shift in the conception of the binding nature of the UNSCR, marked by the emergence of implementations that could involve individuals’ and corporations’ rights and obligations.4 According to this new paradigm, UNSCR enforcement may conflict with the principle of a national legal system, which requires strict regulation of coercive measures against individuals or cooperatives.
History records that the UN Charter was first drawn up to solve the problem of interstate conflict.
It was not intended to regulate the conditions that occur in countries that originate from the behavior of non-state actors, mostly individuals or corporations.
The articles in the UN Charter, which initially contained states’ rights and obligations, have been interpreted by the UNSCR to support the application of force against individuals and corporations5 (for examples, see UNSCR No.
1267 and UNSCR No.
1373 on countering terrorism).
The adoption of UNSCRs and the 5 Several coercive attempts against individuals or corporations in the UN Security Council resolution are generally related to arms embargoes, travel bans, asset freezing, commodity bans, transportation bans, diplomatic restriction, bans on the proliferation of sensitive goods, and financial restriction.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [35] coercive measures contained in them have led to a clash in terms of legality, to be enforced at the national level.
The ability of UNSCRs to administer the use of force6 have raised conflicts between the globalization of international security and the democratic legitimacy of the use of UNSCRs to impinge on the rights and obligations of individuals or corporations operating within the boundaries of national jurisdictions.
This conflict indicates differences in approach between international and constitutional law.
International law requires that the entire international community (with the exception of national legal sovereignty over citizens and their corporations) be willing to prioritize the application of force to maintain international security.
For the perspective of constitutional law, UNSCRs do not have more weight than a moral norm that cannot be applied directly without going through democratically legitimate processes such as those followed in developing national legislation.
Thus, the UNSCRs are a form of soft law that cannot bind third parties, as the involvement of the subject in the decisionmaking process is limited to representation by the five permanent members of the UNSC.
In practice, many UN member countries only selectively enforce UNSCRs, in line with their national interests at the national level.
One example of a country that has adopted legal instruments to accommodate the implementation of UNSCRs is Singapore.
Singapore created rules to minimize the legal gap between UNSCRs and the problems that have arisen when the government must 6 Jessica Priscilla Suri, “The United Nations Security Council Resolution on Sanctions Towards Individual from the Prespective of International Law,” Padjajaran Journal of International Law 3, no.
2 (2019): 203. enforce UNSCR at the national level.
Singapore’s government enforces specific laws that govern the national implementation of UNSCRs, known as The UN Act Chapter 339 (UN Act).
7 The UN Act is a legal umbrella for implementing UNSCRs by the Singaporean government.
The UN Act represents the Singaporean government’s attempt to carry out its international obligations to the UN.
This article examines and discusses several significant issues related to the need for national rules to implement UNSCRs in Indonesia.
The remainder of the article is structured as follows.
The following section presents the ways in which the binding power of UNSCRs function as international instruments; the regulation allowed by the 1945 Indonesian Constitution for the enforcement of international treaties; the establishment of a national legal umbrella for UNSCRs in Indonesia; and the approach taken by the Singaporean government (through the UN Act Chapter 339) to implement the UNSCRs to balance international and national security interests.
This is followed by the conclusion of the study.
II.
Legal Materials and Methods This article analyzes the arrangement of legal instruments for applying UNSCRs in national law.8 The statute approach and the case approach are used to investigate the practice of implementing UNSCRs carried out by the Indonesian government and the 7 Li-Ann Thio, “International Law in the Courts of Singapore: No Longer a Little Island?,” Asian Yearbook of International Law 19 (2013): 1–62.
8 Ian Hurd, “Choice and Methods in the Study of International Organizations,” Journal of International Organizations Studies 2, no.
2 (2011).
Brawijaya Law Journal: Journal of Legal Studies 9(1): 33-46 [36] Singaporean government through the UN Act Chapter 339.
Secondary data, namely legal materials obtained from library materials, are used.
The materials include the following: a.
Primary legal materials: The Charter of the UN 1945; the UN Act (Chapter 339) of Singapore; Indonesian Joint Regulation of the Minister No.
231/2015 Concerning Inclusion of the Identity of Persons and Corporations in the List of Suspected Terrorists and Terrorist Organizations; and Immediate Blocking of Funds Owned by Persons or Corporations Listed in the List of Suspected Terrorists and Terrorist Organizations; and the Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law 1945. b.
Secondary legal materials that provide an explanation of the primary legal materials.
c. Tertiary legal materials that provide instructions and explanations for primary and secondary legal materials.
III.
Results and Discussion The Binding Power of UNSCRs International law has long been considered a quasi-legal instrument and has been the object of much criticism from some legal experts.
Criticism of international legal instruments has also been aimed at the legitimacy of international organizations (such as the UN, which is one of the institutions that can issue and establish 9 W. F. Donaher and R. B DeBLOIS, “Is the Current UN and US Policy Toward Iraq Effective?,” The US Army War College Quarterly: Parameters 31, no.
4 (2001): 4. binding international legal products).
One example of the criticism of this international organization’s legitimacy can be found in the UNSC’s response to the request of the US for authorization to attack Iraq and depose Saddam Hussein, made on October 25, 2002.
The UNSC rejected the request, but the US attacked anyway.
9 Even though it was not following a UNSCR, this action led to debate among scholars.
The decisions made by international organizations are still a critical element in discussion.
In this era of globalization in particular, the world is colored by the growing power of international institutions and legitimate or legitimate organizations.
Such international institutions include the World Bank, the International Monetary Fund, the Multilateral Investment Guarantee Agency, NATO, the Organization of African Unity, the Inter-American Development Bank, the European Council, the European Union, ASEAN, and the World Trade Organization.
The UN Charter itself even recommends the creation of more specific regional organizations and intergovernmental organizations, such as the Asia-Pacific Economic Cooperation.
These international organizations are legitimate, and decisions made by them are considered valid.
Thus, it is not an exaggeration to say that these international organizations have legitimacy in the eyes of the international community.10 The UNSC has the authority to make decisions and take action on behalf of the 10 Sumaryo Suryokusumo, Hukum Organisasi Internasional (Jakarta: Penerbit Tatanusa, 2015).
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [37] global community.
11 The positions of its members have more influence, therefore, than those of the individual members of the UNSC.
The UNSC has strong legitimacy, as its position and role represent the international community’s collective views.
The strength of collective legitimization is a potential source for the acknowledgment of the legitimacy of the UNSC’s attitudes sand actions by the international community.12 The idea of collective legitimization has existed since 1966, but it is still relevant to current conditions.
The non-permanent members of the UNSC show that the character of collective legitimization is more robust than it has been in previous periods.
The increase in the number of members of the UNSC can be interpreted as an effort to provide greater space for countries beyond the UNSC’s permanent members to be involved in the decision-making process produced by the institution.
Over the following 30 years from its first presentation, Claude’s idea of collective legitimization was strengthened by David D. Caron’s article “Governance and Collective Legitimation in the New World Order,” in which he stated that collective legitimation is a soft feature and is sometimes significant for international organizations and governments.13 However, there collective legitimation can be misused, with the consequence that the relevant international organization and community will pay for it.
It should be noted that the basis for the formation of the UN Charter is as a guide for the international community.
When it was founded, the PBB was drafted to resolve 11 Gadi Ezra, “The Saga of ‘Global Legislation,’” International Law Studies 99, no.
2922 (n.d.): 98– 100.
12 A. Ahrnens, “A Quest for Legitimacy: Debating UN Security Council Rules on Terrorism and NonProliferation” (Swedia University, 2007).
issues between countries or to clarify interstate issues.
The articles in the UN Charter have been interpreted broadly in various UNSCRs to support the use of force against individuals/corporations.
The use of UNSCRs on non-state actors is carried out concerning countering terrorism.
Counterterrorism is carried out through UNSCR No.
1267 and UNSCR 1373.
The stipulation of UNSCR No.
1267 and UNSCR 1373 and the coercion called for therein against non-state actors have resulted in a clash of legal principles in terms of national enforcement.
This resolution is related to the coercive measures available to a government and its organs, which can only be carried out in the case of a prior arrangement.
Thus, countries must formulate national legislation that can minimize the legal gaps and problems that have arisen so far.
It is to be expected that the national legal framework can regulate the state’s ties to the UNSCR by prioritizing national interests.
Amid the various considerations related to the need for domestic rules in implementing the UNSCR, we should note to Article 25 of the UN Charter.
Article 25 states that: “The Members of the United Nations agree to accept carry out the decisions of the Security Council in accordance with the present Charter,” which means that the members of the UN agree to accept and implement the decisions of the USNC.
It can be concluded from Article 25 that all member states of the UN agree to accept and implement UNSC decisions and in that article.
The UNSC also makes decisions that have binding force, including the UNSCRs.
Such decisions have 13 Erik Voeten, “The Political Origins of the UN Security Council’s Ability to Legitimize the Use of Force,” International Organization, 59(3), 527557 59, no.
3 (2005): 527–57, https://doi.org/https://doi.org/10.1017/S00208183 05050198.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 33-46 [38] the consequence that, consciously or not, whatever the UNSC decides concerning its function in resolving disputes, the parties concerned must carry it out.
This commitment entails that UNSCRs that are produced in accordance with Chapter VII of the UN Charter, must immediately be implemented and enforced at the national level, without passing through any initial analysis and consideration before ratification, as is the usual course of an international treaty produced by the state.
This commitment is independent of the extent to which a country has monist or dualist in its approach to implementing an international treaty in its domestic law.
A UNSCR is not a self-executing treaty because its formation falls outside of the generally accepted negotiation process.
Thus, in general, the location of the binding power of the UNSCR is in the UN Charter, in particular, Article 25.
Furthermore, to be valid and have legally binding power, the resolution decisionmaking process must meet the requirements of Article 27 of the UN Charter, which, in paragraph 3, states that all UNSCRs for international dispute resolution require a vote.
A vote requires that nine members of the UNSC must vote in favor, including the five permanent members of the UNSC, to pass decisions on non-procedural matters.
For decisions on issues that are not procedural, any permanent member state of the UNSC can veto.
Thus, a veto or no vote from the permanent members can prevent the adoption or approval of a proposal, even if it has otherwise received the necessary number of votes in favor (as many as nine votes of its members).
If one of the UNSC’s permanent members issues a veto, then the resolution 14 Marthinus Omba, “Tanggung Jawab Dan Peranan Dewan Keamanan Perserikatan Bangsa-Bangsa Dalam Memelihara Perdamaian Dan Keamanan does not apply and has no legally binding power.
The UNSC resolution is binding not only to member states of the UN but to countries that are not members of the UN, as stated in Article 2 paragraph (6): “The Organization shall ensure that states which are not Members of the United Nations (UN) act in accordance with these.
Principles so far as may be necessary for the maintenance of international peace and security.” Thus, a country that is neither a member of the UN nor of the UNSC can be subject to an obligation to implement and be bound by a UNSCR.
This also applies where the country is a party to the dispute.
According to the understanding of the UNSC, a country in such a position threatens to jeopardize international peace and security.14 The critical question arises: are sanctions to be imposed on countries that ignore the UNSCR?
When a country does not comply with a UNSCR, the UNSC can impose both non-military and military sanctions.
This is regulated under Articles 41 and 42 of the UN Charter.
Article 41 of the UN Charter states: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the UN to apply such measures.
These may include complete or partial interruption of economic relations and of “rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” This article provides for acts of violence that do not include the use of military force.
These would include the complete or partial termination of economic relations (including by land, sea, air, post and Internasional,” Indonesian Journal of International Law 5, no.
4 (2008): 766–88.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [39] telegraph, radio, and other means of communication), as well as the termination of diplomatic relations.
If efforts rooted in Article 41 of the UN Charter are not successful, action can be taken based on Article 42 of the UN Charter, which states: “Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such.
action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.
Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” Article 42 stipulates that if efforts based on Article 41 are not practicable, the UNSC can take action, using the army, sea, and air forces that may be needed to maintain international peace and security.
The actions regulated in Article 42 are intended to show the power of enforcement of the UNSC against countries involved in international disputes to enforce compliance with the UNSCR for the sake of maintaining international security and peace.
How Does 1945 Indonesian Constitution Regulate the Enforcement of International Agreements?
In its Article 11, the 1945 Constitution of Indonesia deals with arrangements regarding international law together with the presidential power to declare war and make peace.
However, its discussion of international treaties is so short as to be ambiguous.
Article 11 of the 1945 Constitution falls under the chapter on the Powers of the State Government.
Article 11, therefore, only regulates the authority of the 15 H. Nasution and F. Nurangga, “Mekanisme Penerapan Intervensi Kemanusiaan Dalam Hukum President to make international agreements.
The mechanism for making international agreements and their relationship to the Indonesian national legal system is not regulated in Article 11 of the 1945 Constitution.15 When a state must determine when an international treaty is considered to be law in the national order, it can follow the incorporation doctrine or the transformation approach.
The choice between the doctrines is an internal procedure followed in ratifying an international treaty.
As a rule, which is further regulated under Article 11 of the 1945 Constitution, the internal procedure for ratifying international treaties in Indonesia is regulated in Article 9 Paragraph (2) of Law No.
24 of 2000 Concerning International Treaties.
Here, an international agreement that has been ratified, both internally and externally, is not ratified by a law or a presidential decree but through the delivery of an international agreement instrument of ratification.
Therefore, the law or presidential decree is only an internal procedure for ratification.
Article 9 of Law No.
24 of 2000 Concerning International Treaties also does not entirely and clearly discuss the substance of the internal procedures for ratifying international treaties.
This is indicated through several debates related to the laws and presidential regulations that ratify an international agreement to transform the international agreement into national law.
Another opinion states that presidential laws and regulations are subject to the approval of the DPR or the president, who incorporates international treaties into national law.
International treaties apply in Indonesia in their original Nasional Indonesia,” Jurnal Penelitian Hukum De Jure 20, no.
2 (2020): 189–204.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 33-46 [40] form per international legal norms.
According to this last view, the law or presidential stipulation is a form of approval by the DPR that binds them to international agreements in the international order.
Thus, Law No.
24 of 2000 Concerning International Treaties does not separate internal procedures from external procedures for ratifying international treaties in Indonesia.
Internal ratification, as understood in the science of legislation, is very different from external procedures of ratification.
Ratification in the form of an act ratifying international treaties in general does not constitute binding itself to a particular international agreement as referred to in Article 2 (1) b of the Vienna Convention on The Law of Treaties 1969.
The position of international treaties within the Indonesian national legal system that stipulates laws or statutory regulations under the law does not apply if its application is contrary to the provisions of international agreements that do apply in Indonesia.
Changes in the position of international treaties in the Indonesian national legal system accord with the primacy of national law monism.
International agreements do not transform; that is, international agreements retain their original form.
International treaties are recognized as a source of national law.
The interaction between national law and international law is more clearly visible than that separating the national legal system from the international one.
International treaties do not lose their international character, namely their rights and obligations, as such treaties are laws that transform the contents of international agreements to have force in national law.16 Thus, to resolve this, 16 Setyo Widagdo and Rika Kurniaty, “Prinsip Responsibility to Protect (R2P) Dalam Konflik IsraelPalestina: Bagaimana Sikap Indonesia?,” the hierarchy of laws and regulations under Law No.
12 of 2011 concerning the Establishment of Legislations must be revised to give national agreements a place as a source of Indonesian national law that is not regulated in Article 11 or in other articles of the 1945 Constitution.
National Legal Umbrella for the UNSCR in Indonesia The decision-making process in the UNSC cannot be carried out by one country alone.
It requires joint effort to create world peace and security.
This joint effort produces norms that need to be obeyed by all UN members following the mandate of Article 25 of the UN Charter.
Countries are required to have a legal framework to implement the UNSC’s decisions.
In Indonesia, the establishment of a national legal mechanism as a legal umbrella (umbrella rule) for implementing international organizations’ decisions, such as UNSCRs, is considered essential for implementing foreign policy.
As with other UN member states, Indonesia is bound by Articles 25 and 49 of the UN Charter regarding various UNSCRs.
The existence of a legal umbrella is expected to provide a clear mechanism for the implementation of UNSCRs that relate to national interests and do not conflict with national provisions.
The national legal mechanism should reduce the gap between national law and international law to implement the UNSCR, following applicable legal principles.
One challenge in the Indonesian government’s implementation of UNSCRs is related to the legality principle of the Arena Hukum 14, no.
2 (2021): 314–27, https://doi.org/http://dx.doi.org/10.21776/ub.aren ahukum.2021.01402.6.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [41] UNSCR, which leads to a forced attempt in the form of punishment with a national scope.
No punishments can be imposed on all legal subjects, except by means of Indonesia’s existing laws and regulations.
To implement a UNSCR that contains an element of enforcement, Indonesia’s government depends on its judicial power.
In this case, the UNSCR can be interpreted as a formal source of law in the form of a treaty.
Thus, the resolution acquires a position similar to that of other formal sources of law worth the judge’s consideration, such as statutory regulations, customs, and jurisprudence.
The UNSC does not provide a model for implementing sanctions in the domestic realm.
A main difficulty for domestic courts in implementing a UNSCR is when the aggrieved party objections to an action.
Sanctions imposed on individuals or entities do not result from legal proceedings that are carried out at the domestic level, imposing difficulty on the court in carrying out the judicial process.
Generally, the aggrieved party then files a lawsuit at the constitutional court.
Because the role of the domestic judiciary role is very important in implementing the UNSCRs, this should also be regulated in provisions dictating the manner of imposing UNSC sanctions at the level of national law.
The government, therefore, needs to determine steps to minimize obstacles to implementing decisions generated at the international level at the national legal system to develop legal procedures that can have legal certainty.
Furthermore, the decisions of the UNSC are not always specific regarding the limits on the implementation of sanctions imposed, such as UNSCR 1373.
UNSCR 1373 emphasizes that each member state must freeze assets suspected of being linked to acts of terrorism.
This resolution does not provide a specific explanation of who the sanctioned subjects are, so the interpretation is submitted to each country’s own governance.
The absence of a subject explanation regarding the target of sanctions produces uniformity in its implementation.
On the other hand, the UNSCR 1822 precisely determines the subject to be sanctioned by asset freezing to make it easier for certain countries to implement the sanctions.
In the implementation of UNSC sanctions at the national level, interpretation is concentrated on the content of the resolution content.
To clarify the application of the UNSCR decisions, we need to analyze the principles of monism and dualism in international law.
An examination of the literature and the opinions of jurists indicate that Indonesia does not hold a rigid position with respect to monism or dualism.
Indonesia’s dynamic relationship to these two perspectives creates the dilemma whether to subordinate national law to international law or prioritize national law over international law.
Here we should look at Law No.
24 of 2000 Concerning International Treaties, whose Article 10 states that the ratification of international treaties is carried out according to law when it relates to matters of politics, peace, defense, and state security; changes in territory or determination of territorial borders of the Republic of Indonesia; sovereignty or sovereign rights of the state; human rights and the environment; the establishment of new legal norms; or foreign loans and/or grants.
Article 10 of Law No.
24 of 2000 regulates that these agreements must be established or outlined in law, as it is related to political issues, peace, and state security for implementing the UNSCR in Indonesian national law.
In taking steps to create a legal umbrella for implementing the UNSCR, the government Brawijaya Law Journal: Journal of Legal Studies 9(1): 33-46 [42] must incorporate the Law of the Republic of Indonesia No.
12 of 2011 concerning the Formation of Legislation.
Articles 5 and 6 of the law stipulate that legislation must meet several criteria relating to clarity of formulation and import; appropriate forming of institutions or officials; suitability of types, hierarchies, and contents; ability to be implemented; usability; and openness.
Furthermore, Article 6 states that the content of the legislation must reflect principles of protection, humanity; nationality; kinship; archipelago; unity in diversity, justice; equal position in law and government; legal order and certainty; and balance and harmony.
17 Article 6 of Law No.
12 of 2011 indicates that the government of Indonesia should pay attention to the principles of order and legal certainty when making laws to implement UNSCRs.
In determining the right legal framework to implement the UNSCRs and decisions of other international organizations, the Indonesian government must first meet several challenges, including: a.
Whether Indonesia will bind itself to all decisions of the international organizations to which Indonesia is a member or only follow decisions aligned with Indonesia’s national interests.
b.
Which authorities/institutions are given the mandate to determine whether an international organization’s decisions are in line with or not with Indonesia’s own national interests and which authorities/institutions are given the role of forming a national legal framework to implement the international organization’s decisions.
17 Eric Hendra, “Sekuritisasi Dalam Kerangka ‘R2P’ Dan Intervensi Kemanusiaan: Dilema Antara These challenges must be studied and resolved by the drafters of the legal framework for implementing international organizations’ decisions in Indonesia.
The intent must be to provide legal certainty for the implementation of decisions by international organizations while strengthening Indonesia’s role as an actor regarding national peace and security.
Indonesia may be able to learn from Singapore’s experience and its UN Act.
At the very least, Singapore has shown that its UN Act can play the role of a bridge for Singapore as international legal norms are transformed, including the regulation of the rights of individuals in the realm of national jurisdiction UNSCR regulating, into national law.
The UN Act has supported Singapore’s commitment to the UNSC without requiring consultation with agencies/ministries on the dynamics of specific UNSCRs, of the sort that will always emerge.
When there is a need from the Singaporean government to adopt a UNSCR, the UN Act becomes the legal basis for Singaporean ministries and agencies to implement this at the national level by establishing technical provisions.
These technical provisions do not require further consultation with parliament.
The Singaporean UN Act Chapter 339: Article 25 of the Implementation of the UN Charter The Singaporean government has considered national regulations that would have a legal effect on the UNSCRs.
Such effects are carried out through a special law that regulates the national implementation of UNSCRs, otherwise known as the UN Act Chapter 339.
With the UN Act, Singapore Legalitas Dan Legitimasi,” Jurnal Hubungan Internasional 3, no.
2 (2015): 131–41.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [43] intended to establish a legal umbrella for the national implementation of UNSCRs to carry out its international obligations to the UN and fill the legal void (legal lacuna) that occurred on this point.
The UN Act was developed amid a debate on the increasingly prescriptive obligations mandated by the UNSCR with enforcement against individuals and corporations (non-state actors).
The UN Act was formed from a consideration of the national implementation of the UNSCR, which arose as a form of implementation of Article 41 of the UN Charter regarding measures not involving armed forces, especially apprehension and trial, and financial measures against individuals or groups.
The drafting of the UN Act was begun and completed in 2001 in response to the development of UNSCR 1373 regarding the national obligation to compile a national listing of individuals linked to terrorists or terrorist groups.
18 Before 2001, implementation of UNSCRs in Singapore was carried out on a case-by-case basis.
Before 2011, several national provisions were deemed insufficient to bridge the gap between the mandate and obligations of the UNSCR and its implementation at a national level.
There are at least two gaps that Singapore sought to fill regarding the national implementation of the UNSCR, namely, the speed of implementation of the UNSCRs and the implementation of the mew legal rules.
Regarding of the speed of implementation of the UNSCR, before 2011, the Singaporean government applied a piecemeal approach.
However, the approach previously adopted by Singapore cannot fulfill the need to implement UNSCR.
The piecemeal approach, 18 C. H. Tham, “Terrorist Property Rights in Singapore: What’s Left after the United Nations in particular, cannot cope with the spread of acts of terrorism in some areas.
In addition it cannot support novel legal principles that need to be established or introduced at the national level, as mandated by the UNSCR.
For example, Singapore’s national legislation prior to 2001 does not address asset freezing without delay under the UNSCR for Singaporean citizens who are known to be involved in terrorist financing abroad.
The available national legislation is only capable of freezing the assets of Singaporean citizens who are involved in funding terrorism domestically.
Apart from helping transform the rule of law contained in the UNSCR as an international legal instrument and implementing it in national law, the UN Act is considered to have a positive influence in several ways, as follows: a.
The UN Act provides an intensive cross-ministerial forum for coordination that promotes it in the form of a national committee.
With the UN Act, cross-moral concerted efforts among related institutions can be carried out.
Each implementing agency can recognize the tasks that must be carried out in response to the emergence of UNSCRs.
It should be noted that the sectoral imbalances that generally arise in Singapore are due to the existence of the main functions of the relevant ministries or institutions, which are structurally separated.
b.
In particular, to encourage coordination across ministries and related institutions, Singapore formed a committee related to the implementation of UNSCRs under the Act 2001?,” Singapore Journal of Legal Studies July (2002): 176–213.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 33-46 [44] Coordination of the Ministry of Foreign Affairs.
The Ministry of Foreign Affairs’ role in the committee is to get the full support of the relevant Ministries/Agencies (such as the Ministry of Law, which assists in preparing national technical provisions).
The entire mechanism for drafting national technical provisions is supported by the Singapore Attorney General’s Office in reviewing the relevant aspects of the available national law.
This structure is intended to support the effectiveness of implementation of the UNSCR without colliding with national interests.
c. As the legal basis for implementing the UNSCR, the Singapore UN Act is the umbrella law as the primary reference for the ministries or related institutions to form technical provisions for implementing the UNSCR.
The technical provisions related to the UN Act include: 1.
United Nations Anti-Terrorism Regulation Measures 2.
United Nations Freezing of Assets of Persons Related to Sudan 3.
United Nations Sanctions Related to the Democratic People Republic of Korea 4.
United Nations Sanction Related to Iran 5.
United Nations Sanctions Related to Yemen None of these technical provisions now require a political process in parliament.
Thus every obligation that arises under the UNSCR is allowed to be implemented immediately at the national level.
The UN Act only requires Singapore’s government to inform the parliament of the promulgation of technical provisions, without requiring further consultation.
d. As noted in points a and b above, intensive coordination is required by the UN Act to enhance awarenessraising actions.
The growth in awareness can also be carried out in a positive manner, considering that each ministry or institution can carry out dissemination according to its own function.
e. The UN Act is meant to be the legal basis for the enforcement of UNSCRs selectively under national interests arising from previously available national provisions.
These national provisions are primarily related to national monetary and financial regulations.
Due to the existence of the UN Act existence, Singapore’s financial authority has the ability to postpone the implementation of the UNSCR in the event of conflicting financial and monetary regulations.
Furthermore, the implementation of the UN Act has enabled the implementation of other national legislation.
Singapore has enacted laws related to strategic trade control that apply to countries subject to UNSC sanctions through the Singapore Regulation of Import and Exports Act (RIEA).
Through the RIEA, some contraband materials, especially those related to the development of weapons of mass destruction, can be controlled by traffic.
However, the RIEA does not reach further for items that are not explicitly related to nuclear and radioactive materials.
For example, the RIEA cannot be used to prohibit luxury goods, in that this category is not affirmed in the harmonized system by the relevant UNSCR.
This luxury goods category has created ambiguity in the restriction of luxury E-ISSN: 2503-0841, P-ISSN: 2356-4512 [45] goods through Singapore.
The said UNSCR cannot touch goods categorized as contraband material that only cross Singapore in transit without transshipment or dropping off goods at ports in Singapore.
The UN Act is thus a catch-all mechanism that helps implement strategic trade control by Singapore according to the mandate given by the UNSCR.
IV.
Conclusion and Suggestions In summary, the legally binding power of UNSCRs in resolving international disputes is regulated in Articles 25 and 27 of the UN Charter.
From these articles, all parties must accept and implement the decisions of the UNSC, both UN member countries and nonmember countries.
Following Article 2 paragraph (6) of the UN Charter, The UNSC may sanction violations of UNSCRs.
The sanctions are regulated under Articles 41 and 42 of the UN Charter.
Such coercive actions create rights and obligations that must be carried out by all parties concerned in complying with a UNSCR, including Indonesia.
The Indonesian government is still facing several challenges in implementing UNSCRs, especially regarding the implementation of Chapter VII of the UN Charter, which contains impacts that may involve rights and obligations toward individuals and legal subjects.
Indonesia does not yet have the appropriate instruments and modalities at the national level to serve as an umbrella for the Indonesian government to implement the provisions contained in UNSCRs.
The legal umbrella in question would be a law taking into account that UNSCRs will impact the rights and obligations of the state.
However, the implementation of UNSCRs in the form of law will limit the sovereignty and territorial integrity of the Republic of Indonesia.
Therefore, this study suggests that Indonesia may learn from Singapore, specifically its UN Act Chapter 339.
The UN Act is an effort by the Singaporean government to carry out its international obligations to the UN.
This act provides a concrete example of the need for crossministerial/institutional coordination in supporting the implementation of the UNSCRs, either through the preparation of technical provisions or through joint legal efforts to increase stakeholder awareness.
V. Acknowledgments This research article was supported by the Faculty of Law-Universitas Brawijaya through DIPA 2021.
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DOI: http://doi.org/10.21776/ub.blj.2021.008.02.06 | 253 Covid 19 in the face of Contemporary International Law Nima Norouzi1*, Elham Ataei2 1 School of Law, Department of Human Sciences, Islamic Azad University, Tehran, Iran *Email: n.nima1376@gmail.com 2 School of political science and international relationships, Payam Noor University, Tehran, Iran.
Submitted: 2021-08-10 | Accepted: 2021-09-26 Abstract: The outbreak of Covid-19 is an international crisis that has been unprecedented for the past hundred years.
The virus was first reported in Wuhan, China, in late 2019 and gradually spread worldwide.
In such circumstances, the effectiveness of international law in protecting human lives and promoting the right to health has been severely tested.
More importantly, in the words of Michel Bachelet (A UN official), the Covid-19 has become a benchmark for the international community.
This article will analyze how international law deals with the Covid-19 crisis in several areas: first, the World Health Organization’s role as the main body responsible for protecting human healthcare in the face of the Covid-19 outbreak will be analyzed.
Second, the international responsibility of States in guaranteeing the right to health will be assessed to determine the effectiveness of international law.
Third, the suspension of human rights abuses due to the Covid-19 outbreak emergency will be tested in the international human rights system.
Finally, the performance of the UN Security Council in dealing with this pandemic is examined.
In each area, the question is to what extent the current structure of international law effectively deals with international crises and preserves human dignity.
Keywords: covid-19, international law, world health organization, united nations security council, international responsibility of governments, state of emergency I.
INTRODUCTION The outbreak of Covid-19 is an international crisis that has been unprecedented in the last hundred years.
The first outbreak of Covid-19 in Wuhan, China, in early December 2019 gradually spread to the rest of the world.
1 According to global statistics, as of early July 2020, more than 15 million people worldwide have contracted 1 Montel, Lisa, et al.
"The Right to Health in Times of Pandemic: What Can We Learn from the UK’s this dangerous disease, from which a significant number of them have lost their lives.
In such circumstances, the effectiveness of international law in protecting human lives and promoting the right to health has been rigorously tested.
More importantly, according to the UN High Commissioner for Human Rights (Michel Bachelet), the Covid-19 has become a Response to the COVID-19 Outbreak?."
Health and Human Rights 22.2 (2020): 227. http://doi.org/10.21776/ub.blj.2021.008.02.06 mailto:n.nima1376@gmail.com Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 254 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law benchmark for the international community.2 The crisis caused by the Covid-19 outbreak has attracted the attention of many philosophers and thinkers.
Covid-19 is a crisis whose scope is in a state of ambiguity.
Experts are skeptical about the dangerous extent of the virus, to the point where some leading experts believe that governments and even the World Health Organization, despite some claims, have not yet found a definitive cure for the disease.
Furthermore, it is unclear how long this dangerous virus will affect human life.
Philosophers have analyzed the inability of human society to deal with this deadly virus of philosophical theories, analyzing each from its perspective.
Sociologists have also made the Covid-19 the subject of sociological debate, particularly the phenomenon of “correlation” more than ever.
The truth is that human beings in the current situation need “international solidarity” to overcome this global crisis.3 Lawyers have also analyzed this international crisis from various angles.
A group of international jurists, looking at this international crisis from the government’s international responsibility perspective, has addressed China’s international responsibility.
Some jurists claim that the Chinese government, aware of the spread of this deadly virus, has refrained from providing sufficient information to the international community.
Of course, the veracity of any claim requires the presentation of conclusive evidence, and Ali 2 For current statistics on coronavirus infections and victims, see https://www.worldometers.info/coronavirus/ 3 coronawhistleblower.org/wp-content/ uploads / 2020/05 / VentegodtMerrickAtributetotheCoronavirusCOVID19SARS-CoV2whistle-blowers-JAMR-2020-12-2_02.pdf.
4 For a discussion of Chinese government liability for coronary heart disease, see https://www.amnesty.org/en/latest/news/2020 al-Qaeda’s research papers cannot prove the international responsibility of a state; The point is, the Covid-19 has caused such controversy in the scientific community.4 In addition, according to UN experts, the outbreak of the Covid-19 has led to racist attacks and attacks on Asians in some cases.5 Similarly, UN experts have stated that racist comments related to the Covid-19 should be stopped.
However, the prevalence of that crisis over racial discrimination has also become more pronounced.
6 The Covid-19 has also hampered the implementation of international economic law and international trade law.
Governments have closed their borders under the pretext of countering the spread of the Covid-19, and traders, business people, and owners of industries and transportation companies have almost stopped working.
For this reason, the virus has re-raised the issue of possible conflict of trade with human rights.
The principle of freedom of trade requires the free movement of traders and goods, but freedom of movement and goods can kill people in the current crisis.
Also, in the current situation, many traders have failed to fulfill their contractual obligations due to the prevalence of Covid-19.7 In addition, the Covid-19 will have profound and far-reaching implications for the immigration policies of some governments.
For example, the president of the United States has spoken of his country’s highly contractionary policy to address the Covid-19 problem and the plight of refugees 5 Sam Zarifi, Covid-19 symposium: Human rights in the time of Covid-19-front and center , in: Covid-19 and international law, opinion juris symposium, p. 127.
6 Villarreal, Pedro A.
"Pandemic: Building a Legal Concept for the Future."
Wash. U.
Global Stud.
L. Rev.
20 (2021): 611.
7 For the UN Expert Report, see https://www.ohchr.org/EN/NewsEvents/Pages/Di splayNews.aspx?NewsID=25739&LangID=E.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 255 in deep crisis.8 Many governments now close their borders to asylum seekers and even deport them under the pretext of fighting the Covid-19.
Although sovereignty and territorial jurisdiction are inherent elements of international law, the Covid-19 does not recognize borders; This uninvited guest easily crosses national borders and ironically ridicules international law.
The other is whether those countries are not in crisis.
Right now, all governments and all human beings are battling a deadly disease called Covid-19.9 Covid-19 has revealed the hidden contradictions of human society.
Until the 2010s, racism was a problem of the international community, and today the Covid-19 has highlighted such a problem, and a group of people allows themselves to insult a certain race instead of treating and combating the virus (and not disease) as the cause of death.
Until recently, the issue of helpless asylum seekers was among the contradictions of the international community, and the Covid-19 has doubled the homeless problems.
Until recently, poverty and helplessness revealed the contradiction between the rich and the poor today, and the Covid-19 shows this contradiction more than ever so that some people use the best and most equipped medical equipment to save and revive their lives.
On the other hand, another group is deprived of medical equipment due to poverty and is forced to die silently.10 The bottom line is that the Covid-19 has made it so much more, and as a shining light, it has exposed the contradictions of the forty8 https://www.theguardian.com/world/2020/apr/21/tru mp-says-he-willimpose-immigration-ban-in-bidto-tackle-coronavirus 9 Sam Zarifi, Covid-19 symposium: Human rights in the time of Covid-19-front and center , in: Covidsomething and more or less dark society of the international community.
The question now is to what extent the crisis caused by Covid-19 has revealed the efficiency or inefficiency of the legal system governing the (international) society.
It seems that this crisis has not only posed a very serious challenge to the inefficiency of this system in the field of public health but has also been able to have a significant impact on the future of this legal system.
The article first refers to the “efforts” of governments and their institutions to combat the Covid-19, and then the impact of this crisis, which has posed a deadly challenge to human life, on the international legal system.
II.
LEGAL MATERIALS AND METHOD The method applied in this study is juridical normative.
This research uses data collection techniques based on documentation and library research by collecting data and information from various sources of documents and literature, including: a.
International Health Regulations (1969).
b.
International Health Regulations (2005).
c. The 1948 Universal Declaration of Human Rights.
d. The Charter of the United Nations in 1945. e. Law no.
39 of 1999 concerning Human Rights.
f. Vienna Convention on the Law of Treaties.
III.
RESULTS AND DISCUSSIONS Global Health Regulations Framework of Government Obligations in the Face of Covid-19 a.
Position of the World Health Organization (WHO) 19 and international law, opinion juris symposium, p. 127.
10 Odom, Jonathan G. "COVID-19 and the Law: A Compilation of Legal Resources."
Available at SSRN 3588225 (2021).
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 256 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law Since the founding of the World Health Organization in 1948, it has been primarily responsible for maintaining international health.
In 2005, the General Assembly of this international body published the second version of the Universal Declaration of Health; The document has been in force since 2007.
The 1969 version inspires the 2005 revised version.
Global health regulations are not a treaty but a binding document.
This binding document is based on Article 21 of the Statute of the World Health Organization.
Article 21 of the organization’s charter allows its general assembly to adopt binding regulations to combat the spread of epidemics.
If the General Assembly of the World Health Organization adopts a charter to combat the spread of communicable diseases, that charter is binding on the organization’s member states without the need for subsequent ratification.
It has been used following Article 21 of its Articles of Association global health regulations will be ignored.11 Article 2 of the 2005 World Health Regulations states that this regulation aims to prevent and control the spread of international diseases.
The purpose of prevention is to take measures to prevent the spread of infectious diseases.
However, if infectious diseases spread internationally due to an outbreak, measures will be taken to control the outbreak of the disease, i.e., to limit it.
Article 2 of the World Health Regulations adds that preventing and controlling infectious diseases should not harm trade.
Infectious diseases such as Covid-19 are rapidly transmitted from country to 11 Of course, according to Article 22 of the Statute of this organization, approved bylaws are mandatory, with the exception of states that have been notified of their acceptance or conditional actions within the deadlines set for the Director General.
country.
The phenomenon of globalization can also accelerate the spread of infectious diseases.
Every day, passengers are transported from one country to another by ship, plane, and train; International travelers, can transmit infectious diseases to other countries from their country of residence.
Therefore, tackling the spread of infectious diseases requires extensive international cooperation.
As the world’s leading health authority, the World Health Organization must be aware of the risks of communicable diseases to make the right decisions promptly.
For this reason, following Article 6 of the Universal Declaration of Health, States must notify the organization of a public health hazard within 24 hours.12 According to paragraph 3 of Article 13 of the World Health Regulations, after receiving information from the country where the disease has spread, the World Health Organization is obliged to cooperate with the country infected with the contagious disease to deal with the spread of the disease.
This cooperation can take the form of providing technical assistance.
In addition, if necessary, the organization can assist by sending international experts to the country where the outbreak occurs.
Timely awareness of the prevalence of infectious diseases can control the risk of their spread.
As a result, countries can respond more quickly and appropriately as soon as they become aware of the spread of such diseases.
For this reason, Article 11 paragraph 1 of the World Health Regulations obliges the World Health Organization to receive regular information on the prevalence of the disease from all countries and to make 12 Villarreal, Pedro A.
"Pandemic: Building a Legal Concept for the Future."
Wash. U.
Global Stud.
L. Rev.
20 (2021): 611.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 257 such information available to other States.
At the time of an infectious disease outbreak, the spread of that disease will likely be limited within a country's borders.
On the other hand, there is another possibility that the disease is so strong and rapidly spreading that its spread will spread quickly to other countries.
For this reason, determining the importance, severity, and severity of this type of disease, especially the possibility of its international transmission, is of great importance.
Article 12 of the World Health Organization entrusts determining the severity and severity of infectious diseases to the World Health Organization Director.
b.
Global health regulations against Covid-19 Dealing with infectious diseases requires reactive and excretory measures against the sudden outbreak of these diseases.
The outbreak of these diseases could put thousands of citizens at risk of death.
In such a situation, the country’s medical and health infrastructure must be ready to treat patients in advance.
The number of hospital beds in the country should host a sufficient number of patients.
Patients are at risk of death if medical and hospital equipment is not adequate.
However, building hospitals and treatment centers and equipping them takes time.
States have a long-term plan to build and equip hospitals; For this reason, some of the governments’ commitments to tackling epidemics are so-called “long-term commitments.” For example, according to Articles 5, 6, and 13 of the Global Health Regulations, governments must build capacity to combat communicable diseases.
Paragraph 1 of Article 3 of these regulations states: “The implementation of 13 Villarreal, Pedro A.
"Pandemic: Building a Legal Concept for the Future."
Wash. U.
Global Stud.
L. Rev.
20 (2021): 611. these regulations must be carried out with full respect for human dignity, human rights, and fundamental freedoms.” In this regard, Article 32 of the Universal Declaration of Health provides: “In implementing health measures following these regulations, States Parties shall treat all travelers following the standards of human dignity, human rights, and fundamental freedoms.” Articles 31, 32, 40, and 42 of the Universal Declaration provide for standard health concerning the entry and exit of passengers into borders during the outbreak of infectious diseases.
During the outbreak of communicable diseases, the rights of travelers and the right to travel are overshadowed.
Can governments restrict the entry and exit of passengers due to the spread of epidemics?
In this case, Article 31 of the Universal Health Regulations stipulates that, in principle, governments cannot restrict the entry and exit of passengers; Unless there are serious hazards that threaten public health.
In addition, governments cannot, in principle, compel travelers to undergo medical examinations and vaccinations unless there are serious public health hazards.13 Also, when outbreaks occur, the rights of travelers will likely conflict with health regulations.
For example, if a traveler wants to enter a country at risk of contracting a contagious disease, the government can ask that traveler to undergo a medical examination.
In such an assumption, if the passenger refuses to undergo a medical examination, the question arises as to whether the government can not allow the passenger to enter the country.
In the legal explanation of such a situation, paragraph 2 of Article 31 of the World Health Regulations states that the traveler’s first Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 258 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law consent to a medical examination or vaccine injection is required.
Second, if the passenger refuses to undergo a medical examination or vaccination, the government can prevent passengers from entering its territory under certain conditions.
However, if the risk of an outbreak and the disease is high, the government can compel the traveler to undergo a medical examination, vaccination, or precautionary measures such as quarantine as necessary.
According to Article 32 of the World Health Regulations, if states establish public health towards passengers, they must treat passengers with the utmost respect and courtesy.
In addition, governments should consider gender, social and cultural status, and the religious and ethnic status of the traveler when adopting health measures.
Any of these situations can put the passenger in a fragile and vulnerable position.
For this reason, governments must treat more vulnerable travelers with more respect and courtesy.
For example, due to the fragility and vulnerability of women and children, it is necessary to be more polite and respectful towards them.
If dealing with the outbreak of diseases requires quarantine or vaccination of travelers, the issue of paying for their accommodation in special quarantine accommodation or vaccination costs is of great importance; In general, these costs can be borne by passengers or the government, but due to the observance of passengers’ rights, Article 40 of the Universal Health Regulations obliges governments to cover the costs associated with public health measures.
For example, if passengers on a foreign flight enter another country and it is necessary to vaccinate them, the government cannot impose the cost of vaccinating the passengers on them.
In other words, governments are, in principle, primarily responsible for paying the general costs of health care.
Of course, the government's principle of payment of health costs also has exceptions; If States wish to charge passengers health expenses following the provisions of Article 40 of the International Regulations, the charges shall not exceed the cost price.
In other words, health expenses will only be received as much as necessary, and governments have no right to make a profit under the pretext of providing health services.
Also, the receipt of health expenses must have a fixed and fixed tariff.
Governments are also required to adhere to the principle of non-discrimination when receiving health care costs.
This means that governments do not have the right to impose discrimination based on travelers’ accommodation and even their nationality when receiving health care costs.
Article 40 of the World Health Regulations provides another form of health insurance; If the government wants to change the tariff to provide health services, it must inform the public of the new tariff ten days in advance.
Article 43 of the Global Health Regulations allows governments to take additional measures to establish public health and combat communicable diseases.
Article 42 of these regulations sets out three general principles for applying health regulations: First, sanitary measures must be adopted immediately and without delay.
Adherence to this principle is necessary because the fight against pervasive diseases requires urgency, not delay.
Delays in government action on public health can have disastrous and catastrophic consequences.
Second, hygienic measures must be taken following the principle of transparency; Observance of transparency requires that the government refrain from concealment and that the general public observe the government’s actions in establishing public health.
Third, the government must adhere to nonBrawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 259 discrimination in establishing public health and combating communicable diseases.
This means that governments should not discriminate or refrain from providing health services to individuals based on their gender, race, religion, or ethnicity.
As noted, global health regulations are a binding document; Violating the provisions of this binding document will result in the international responsibility of the offending government.
For example, as mentioned earlier, the government is obliged to inform the prevalence of infectious diseases within 24 hours; Now, if the government does not fulfill its duty to inform about the contagious disease, it will have international responsibility.
The International Law Commission has also defined the concept of “disaster” so broadly in its draft articles on the protection of persons in the event of disasters that it also includes pervasive diseases (paragraph A of Article 3 of the draft).14 According to Article 11 of the said draft, if the government cannot control disasters and catastrophes, it must ask for help from the international community.
Although assistance to a country affected by a catastrophe requires its consent, such consent should not be arbitrarily waived (paragraph 2 of Article 13 of the draft law of the International Law Commission).
The World Health Organization’s oversight of governments’ commitments to global health regulations is important.
If the organization's member states violate their obligations as contained in the health regulations, the World Health Organization can not invoke the responsibility of the offending state.
In other words, the World Health Organization has no 14 Bartolini, Giulio.
"A universal treaty for disasters?
Remarks on the International Law Commission's Draft Articles on the Protection of Persons in the Event of Disasters."
International Review of the Red Cross 99.906 (2017): 1103-1137. authority to pursue the state’s responsibility for violating the regulations.
The only existing executive mechanism is that a report on non-compliance with global health is submitted to the General Assembly of the World Health Organization.15 The Director-General of the World Health Organization may also issue recommendations to address the prevalence of infectious diseases.
For example, on 30 January 2020, he issued a letter of recommendation banning travel to the People’s Republic of China, particularly Wuhan Province.
However, if the Director General’s recommendations are violated, there is no guarantee of enforcement against the violation.
The World Health Organization does not act as a global police force.
Instead, the organization acts only as a technical institution and, in its duties, issues recommendations to deal with the spread of infectious diseases.
International Healthcare Responsibility of Governments The international health law has received more attention with the outbreak of Covid-19.
Undoubtedly, the activities of the World Health Organization in the field of disease control, including infectious diseases such as SARS, AIDS, and Ebola, have been noteworthy; However, since the outbreak of Covid-19 disease, the organization has not received as much attention; It is as if it has become a small Security Council to which all eyes are on.
Governments, individuals, and national and international institutions await the day-to-day findings of this organization.
Perhaps the necessities of the international 15 Covid-19 symposium: "can they really do that?
", state obligations under the International Health Regulations in light of Covid-19, Pedro A. in: Covid-19 and international law, opinion juris symposium, p. 23.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 260 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law community require that, after all, human beings have coexisted peacefully with this disease at best.
It is not unreasonable to expect that the role of this organization in the future will go beyond a regulatory organization and become the inevitable arm of the international community in determining what the preservation of international peace and security is.
This disease targets the human person.
However, the fundamental question from a legal point of view is whether the state of the oldfashioned nations can become ill. As of this writing, the answer is yes; Incidentally, this disease is one of the few examples that has been proven that governments, regardless of the degree of progress and development, may not be able to effectively control the outbreak of the disease and deal with it and therefore be considered incapable.
Therefore, the concept of disability is no longer limited to governments such as Somalia, Afghanistan, etc., and now all governments have somehow lacked a standard of effective control.
With this description, another fundamental question is whether governments can be held internationally responsible for the prevalence of the disease.
First of all, it should be made clear that in this regard, the issue should be following the International Government Responsibility Plan adopted in 2001, which contains the secondary rules of international law, as a handbook of government responsibility, as well as the International Health Organization and the World Health Organization.
International human rights instruments should be considered as basic rules.
From the 2001 Liability Plan perspective, states have specific international responsibility for the conduct of international offenses (including acts and omissions).
For international responsibility to be realized, two elements must coexist: it can be attributed to government action, and the other is that it is internationally offensive.
It is also clear that several governments may have committed that offense; Second, the 2001 liability plan clarifies that the element of fault does not play a role in that action, although it may affect the effects of international liability, including the issue of compensation.
With this explanation, it can be assumed that a government may have international responsibility not only because of its stewardship in the spread of Covid-19 but also because of its lack of timely prevention and information and its failure to provide the necessary measures to prevent it, regardless of the element of fault in this regard.
It should be noted that sometimes in the second paragraph, negligence in prevention, both primary and secondary rules, can be decisive.
Now, concerning the above points, it is necessary to address the basic rules governing the international issue of health.
It is necessary to address this issue to determine the content of the international obligations of States in this regard and secondly to determine whether the alleged violations are attributable to States and that the international obligation in principle has been violated.
International law applicable in international health should be considered in the statute of the World Health Organization and its resolutions.
The forty-fifth edition of this statute was approved in 2006.
The preamble to the charter contains points on states’ international obligations, including the principle of international cooperation.
It is also stated in the introduction that health is a human right and is linked to the issue of international peace and security.
Therefore, the general atmosphere of the preamble to the statute is a reflection of Saadi Shirazi’s poem: “When a member hurts the times, there are no other members left.” An important point in this regard is the part Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 261 of the preamble which states: “Governments have a responsibility for the health of their people, which can only be achieved by providing the standards of the Legal Research Quarterly Special Issue of Law and Covid-19 in the Mirror of Contemporary International Health and Social Law”.
It should be noted that the Statute of the World Health Organization is a treaty.
According to the Vienna Convention on the Law of Treaties of 1969, the preamble to the treaty is a context of the treaty and effectively interprets the treaty's provisions.
In addition, the commitments of member states and other relevant members are set out in the Statute of the World Health Organization.
Perhaps what attracts the most attention can be seen in Articles 61 to 68 of the Articles of Association.
In this set of materials, governments have made commitments; These include: submitting an annual report on public health, an annual report on how the organization’s decisions regarding agreements, conventions, and regulations are implemented, as well as a commitment to promptly submit important laws and regulations and reports and statistics on health.
The government has published, providing statistical and epidemiological reports in the manner determined by the Health Assembly, and the transmission of additional health-related information at the council’s request and, as far as practicable.
According to Article 56 of the World Health Regulations, governments can negotiate and mediate to resolve their disputes.
This means that any member state of the organization can enter into resolving disputes by invoking the responsibility of the offending state.
If the negotiation and mediation process is not successful and the parties to the dispute cannot reach a peaceful settlement, Article 56 of the Universal Health Regulations allows the parties to the dispute to refer their dispute to the arbitral tribunal, particularly the Permanent Court.
Thus, in the event of a dispute, the World Health Organization member states may refer to the arbitral tribunal and ask the arbitral tribunal to assume the liability of the offending state and order compensation for damages.
In this regard, Article 75 of the Statute of the World Health Organization can also be mentioned.
According to this article, “Any issue or dispute regarding the interpretation or application of this statute that is not resolved through negotiations or the Health Assembly shall be referred to the International Court of Justice following the Statute of the Court; Unless the parties agree otherwise.
In addition, following Article 76 of this instrument, the organization may, following its authorization from the General Assembly, following its agreement with the United Nations, consult the International Court of Justice on any matter relating to its competence.
At present, almost all governments are struggling with the disease.
The World Health Organization declared a state of emergency and declared the disease epidemic on 11 March 2020.
Many governments have taken many steps to prevent the disease further.
It is also clear that the disease originated in China.
Now, because of the above points, it is necessary to address whether there has been a fundamental violation of the international obligation in this regard.
The solution to this problem is noteworthy given the heavy blows this disease has dealt with the economies of governments.
In particular, the arrow’s tip is towards the Chinese government, and there have even been discussions about filing a lawsuit against China in the International Court of Justice.
As events show, all governments, including China, have taken immediate steps to control the disease and live up to their long-term commitments.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 262 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law These measures include quarantine, social distancing, travel restrictions, etc., and demonstrate the commitment of states to maintain health.
The obligations contained in the Statute of the World Health Organization are so general that it may not be possible to specify which government has exactly violated those obligations.
In addition to the treaty and customary sources, reference should be made to the general principles of international law, including the principle of due diligence and the principle of precaution.
Do not forget that the two elements of attributing and committing international wrongdoing are necessary to achieve international responsibility.
Even with due diligence and precaution principles, the facts do not show that governments have not taken due care.
In addition, there are cases in the liability plan in which a state can be exempted from international liability.
Among these factors, including consent, legitimate defense, reciprocal action, necessity, urgency, and force majeure, the last three factors are the most relevant factors that remove the description of the offense of an international offense.
Therefore, even in international wrongdoing, it is possible to absolve oneself of responsibility in this particular case.
Finally, because the lack of effective control over the territory in the plan of responsibility can lead to the irresponsibility of a state, for example, against the illegal actions of insurgent groups, and assuming the lack of effective control of states against this disease, the international responsibility of these governments.
It makes the field difficult.
Therefore, the placement of general and general legal obligations, at least within the framework of the World Health 16 UN General Assembly, Universal Declaration of Human Rights, 1948.
Organization, in the field of health in the face of developments that indicate the actions of all governments to combat this disease, presupposes a violation of international obligations following international law.
The International Government Responsibility Plan, adopted in 2001, is in question.
There have been many efforts to formulate and explain “shared responsibility” over the past few years at the academic level.
Achieving such a framework means modifying the current system of international responsibility, which is based on the individual responsibility of governments.
However, these efforts do not reflect existing international law.
So what to do?
Perhaps not all problems should be attributed to secondary rules.
The fact is that the fundamental flaws in the system of basic rules governing global health.
First, these problems are due to the lack of specific obligations and explanation of the details of the right to health.
More detailed rules can probably be found in human rights documents.
However, the World Health Organization relationship, the main center of world health management, is not clear with these commitments.
The second problem is that the powers of the World Health Organization are limited, and its charter places the organization only at the level of a regulatory organization.
The international community needs to require that the organization's statute be amended as soon as possible and given wider powers.16 The Covid-19 and the obligations of governments towards the right to health a.
What right and what obligation?
Conceptual analysis Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 263 Article 25 of the Universal Declaration of Human Rights speaks of the right to health.
Article 12 of the Covenant on Economic, Social, and Cultural Rights also classifies the right to health as a human right.
General Theory No.
14 of the Committee on Economic, Social, and Cultural Rights has described and interpreted the right to health.
Protecting public health is not only a task; it takes precedence over other tasks.
Governments are obliged to guarantee the right to public health without any discrimination.
The right to health is the most important human right because the fulfillment of any human right depends on people's physical and mental health.
The right to health belongs to all human beings, and all individuals, regardless of their nationality, can claim the right to health from the government.
This means that everyone, whether a citizen of the country of residence or an immigrant or refugee, can claim the right to health.
In other words, the right to health does not belong only to the citizens of one country, and everyone can claim such a right.17 The right to health requires that facilities, goods, and health services be provided to individuals of appropriate quality.
Regarding the prevalence of Covid19, it can be said that all governments are obliged to take all necessary measures to deal with, track and treat this disease.
Due to the limited number of hospital beds, the Italian government has recently adopted a policy to allow hospitals to admit patients with Covid19.
18 Given that the right to health and treatment belongs to all human beings, it 17 UN General Assembly, international covenant on Economic, Social and cultural rights, 16 December 1966, Treaty Series, vol.
993, p.3.
18 Gostin, Lawrence O.
"The human right to health: a right to the" highest attainable standard of health"."
The hastings center report 31.2 (2001): 29-29. seems that this decision of the Italian government is a violation of the right to health because no government can deprive any individual of the right to treatment.
Governments, both individually and collectively, are primarily responsible for ensuring the right to health.
Governments have to respect and enforce the right to health promptly.
Concerning Covid-19 disease, governments are required to fully equip hospitals and health care facilities and provide hospitals and treatment facilities with the necessary facilities and services to treat the disease.
On the other hand, if the equipment of medical centers and hospitals is not sufficient for screening and treatment of Covid-19 disease, the right to health is violated.
Also, if hospitals and treatment centers are overcrowded, such a situation can lead to Covid-19.
In South Africa, for example, it has been observed that medical centers and hospitals are overcrowded.
Such a situation in South Africa could lead to a violation of the right to healthcare.19 b. Covid-19 Test of accountability of modern governments Many governments have been criticized for not being serious enough to deal with the Covid-19.
For example, the United States president (Donald Trump) has been widely criticized for his statements in handing over governments for early social restrictions.
In quarantine, the fight against Covid-19 is required to implement measures related to the public health of social distances and travel bans.20 19 Montel, Lisa, et al.
"The Right to Health in Times of Pandemic: What Can We Learn from the UK’s Response to the COVID-19 Outbreak?."
Health and Human Rights 22.2 (2020): 227.
20 Ibid.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 264 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law In many countries, hospitals and private treatment centers are in charge of health and wellness.
In these countries, private companies, pharmaceuticals, and private insurance companies are in charge and are considered at the helm of the health sector.
In such countries, the government of health and treatment is obliged to fulfill its duty to guarantee the right to health.
The United Nations Guide to Trade and Human Rights principles also reaffirm the government’s role in ensuring the right to health.
Accordingly, the government must ensure that private institutions and pharmaceutical companies do not rightly harm people’s health.
This state’s task is of great importance because private companies are in charge of public health in many countries.
Governments have taken different approaches to the Covid-19.
Spain, for example, nationalized private hospitals to expand its medical and treatment capacity.21 In the United Kingdom, the government has entered into several agreements with private hospitals that require private hospitals to treat and provide nonprofit Covid-19 health care.22 In addition, governments have taken measures to counter the profiteering and opportunism of private companies.
For example, the Bangladeshi government has banned private laboratories from conducting Covid-19 diagnostic tests.23 The reason for this decision was that private laboratories might not be able to 21 OHCHR.
"COVID-19: States should not abuse emergency measures to suppress human rights– UN experts."
(2020).
22 Ibid.
23 Karim, Mohammad Rezaul, Mohammad Tarikul Islam, and Bymokesh Talukder.
"COVID-19′ s impacts on migrant workers from Bangladesh: In search of policy intervention."
World Development 136 (2020): 105123.
24 United Nations.
(2011).
Guiding principles on business and human rights: Implementing the United Nations "Protect, Respect and Remedy" framework.
perform such tests properly.
24 In addition, private hospitals and pharmaceutical companies are responsible for respecting the right to health.
In other words, the primary responsibility of governments to protect the right to health does not negate the direct responsibility of private companies.
The principles of the United Nations Guide also emphasize the direct responsibility of private companies in safeguarding the right to health to support public health care at a reasonable price.25 It is also obligated to provide medical items and goods to governments to ensure the right to health to make the most of its resources.
For this reason, governments should ensure that, first, they admit private hospitals for patients with Covid-19.
Second, private hospitals do not impose exorbitant costs on patients with covid-19.26 Nevertheless, governments in practice have faced such a dilemma.
In India, for example, a private hospital refused to accept Covid-19, which was in dire need of treatment.27 There is a misconception among some that governments are committed to protecting the right to health (related to soft rights).
The result of such a perception is that governments’ soft commitment to guaranteeing the right to health depends on the resources and capacity of the state, and states can claim that they have not yet reached the capacity to guarantee the right to health.
28 The reason for such a misconception is that, firstly, according to the 25 Montel, Lisa, et al.
"The Right to Health in Times of Pandemic: What Can We Learn from the UK’s Response to the COVID-19 Outbreak?."
Health and Human Rights 22.2 (2020): 227.
26 Ibid 27 Gauttam, Priya, et al.
"Public health policy of India and COVID-19: Diagnosis and prognosis of the combating response."
Sustainability 13.6 (2021): 3415.
28 Meier, Benjamin Mason.
"The highest attainable standard: advancing a collective human right to public health."
Colum.
Hum.
Rts.
L. Rev.
37 (2005): 101.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 265 Covenant on Economic, Social and Cultural Rights, governments have recognized the highest standard of physical and mental health, second, the Contracting States to the covenant are expressly obliged in Article 2, paragraph 1, to make use of the maximum resources available to them.
29 Thus, governments are obliged to make the most of the available resources and have the duty to expand their existing resources to fight infectious diseases through international cooperation.30 For this reason, governments are obliged to use all available resources to combat the Covid-19.
The resources available to governments are varied.
These resources include financial, natural, human resources (physicians and nurses), technology resources (control and testing devices), and information resources (information on covid-19 outbreak).31 Thus, states are obliged to use all available resources to combat the Covid-19.
Following Article 2, paragraph 1 of the Covenant on Economic, Social, and Cultural Rights, states must exercise the rights outlined in the covenant individually.
The Committee on Economic, Social, and Cultural Law has considered the task of governments on international cooperation.
In the case of Covid-19, governments are required to work together to combat the deadly virus and coordinate their efforts to combat Covid-19, in particular through the World Health Organization, and take the necessary measures to protect health.
In general, physicians and nurses are more vulnerable than other social groups, because they are 29 Sepúlveda, M. Magdalena, and María Magdalena Sepúlveda Carmona.
The nature of the obligations under the International Covenant on Economic, Social and Cultural Rights.
Vol.
18.
Intersentia nv, 2003.
30 Brodeur, Abel, et al.
"A literature review of the economics of COVID‐19."
Journal of Economic Surveys 35.4 (2021): 1007-1044. seriously exposed to the Covid-19.
They are more likely to become infected with the deadly disease.
Thus, governments are obliged to inform the medical staff about the dangers of the virus before starting work in a hospital setting.
Also, the necessary equipment, including masks, should be provided to the medical and treatment staff.
Finally, in the field of human rights, the right to information is also of great importance.
Article 19 of the Universal Declaration of Human Rights and Article 19 of the Covenant on Civil and Political Rights imply the existence of such a right.
Governments must provide complete and comprehensive information on the prevalence of the disease to the public and provide the public with all necessary information, such as health precautions, to combat the Covid-19.
Therefore, the public media, especially the national radio and television, have a duty to provide the public with the necessary information to combat the Covid-19.32 c. Restrictions and suspensions of some human rights due to the Covid-19 emergency 1) Hermeneutic self-sufficiency of human rights: suspension of rights At the time of the outbreak of epidemics, government action to protect people’s health can lead to human rights violations.
For example, creating quarantine and social isolation may conflict with the right to free movement.
In such a situation, Article 12 paragraph 3 of the Covenant on 31 Montel, Lisa, et al.
"The Right to Health in Times of Pandemic: What Can We Learn from the UK’s Response to the COVID-19 Outbreak?."
Health and Human Rights 22.2 (2020): 227.
32 Ibid.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 266 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law Civil and Political Rights allows the exercise of certain rights to be restricted.
Of course, experts in international law have issued a joint statement stating that the response to the spread of epidemics must be proportionate, necessary, and non-discriminatory.33 After the outbreak of covid-19, many governments have imposed restrictions on some human tricks and suspended some of them.
There has been much debate about the legitimacy of the suspension of human rights during a state of emergency.
In our time, many have suspended some human rights by declaring a state of emergency due to the outbreak of the Covid-19.
States, in particular, have suspended or restricted freedom of movement and assembly to prevent the spread of the virus.
For example, according to Article 12, paragraph 3 of the Covenant on Civil and Political Rights, States are permitted to impose restrictions on freedom of movement, subject to conditions, particularly the principle of necessity and proportionality, to maintain order security and public health.
Article 4 of the Covenant on Civil and Political Rights defines the suspension of human rights in the event of a life-threatening emergency.
Following paragraph 1 of this article, in the event of a general national emergency, the States Parties to the covenant may take steps to circumvent the covenant’s provisions and suspend certain human rights by formally declaring such a situation.34 General Theory 29 of the Human Rights Committee, by explaining Article 4 of the Covenant on Civil and Political Rights, discusses the suspension of human rights during a state of emergency.
According to 33 UN General Assembly, international covenant on civil and political rights, 16 December 1966.
34 OHCHR.
"COVID-19: States should not abuse emergency measures to suppress human rights– UN experts."
(2020).
paragraph 2 of General Theory No.
29 of the Human Rights Committee, there must be measures related to the suspension of human rights.
Second, the state of emergency must be so important that it endangers national life and an exceptional moment.
Third, states must act within the framework of the constitution in times of emergency, and their actions can in no way go beyond the law.35 According to paragraph 3 of General Theory No.
29 of the Human Rights Committee, any riot or calamity cannot be described as a general state of emergency.
Chaos and natural or manufactured disasters must have reached such an important level that they affect national life.
According to paragraph 4 of the above general theory, exceptional and temporary measures must be commensurate with the state of emergency.
This means that the duration and geographical scope of the state of emergency must be limited and adhered to by states.
When declaring a state of emergency, the principle of proportionality, following paragraph 5 of General Theory No.
29, states must have sufficient justification for declaring a state of emergency.
Declaring a state of emergency is a completely exceptional situation, and governments can only declare such a situation if necessary.
Thus, in times of emergency, the suspension of human rights must be interpreted so that they can only suspend the legal group whose suspension is necessary to overcome the crisis.
In addition, according to Article 4 paragraph 1 of General Theory 29 of the Human Rights Committee, States must adhere to the principle of non-discrimination when suspending their rights; This means 35 Ramcharan, Bertrand, and Bertrand G. Ramcharan.
Contemporary Human Rights Ideas: Rethinking theory and practice.
Routledge, 2008.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 267 that when human rights are suspended, they cannot impose restrictions based on race, color, gender, language, religion, and social status.
Paragraph 2 of Article 4 of the same theory explicitly states that certain rights, such as the right to life, the prohibition of torture, and the prohibition of slavery, cannot be suspended.
It should be noted that some economic, social, and cultural rights, like some civil and political rights, are nonsuspended; Legal doctrine calls these inalienable rights “minimum inherent rights.” “Minimum inherent rights” are those classes of economic, social, and cultural rights that cannot be suspended and that restrictions cannot be imposed on them.
36 “Minimum inherent rights” are also obligated, not gradually, to the immediate realization of “minimal inherent rights.” For example, access to health care, the right to healthy food, shelter, and finally, the right to drinking water.
Legal rights are irrevocable, and governments cannot suspend such rights, even in a state of emergency.
In the final analysis, the authors believe that the inability of some economic, social, and cultural rights to be suspended is because they are righthanded over to life.
In simpler terms, some rights, such as the right to shelter, food, and safe drinking water, are so important that the right to life depends entirely on their observance.
In addition to the Covenant on Civil and Political Rights, some regional human rights treaties also provide a state of emergency.
For example, Article 27 of the 36 UN Human Rights committee, CCPR General comment No.29: Article 4: Derogations during a state of emergency, 31 August 2001.
37 Gorski, Philip.
American covenant.
Princeton University Press, 2019.
38 Mitchell, Rob D., et al.
"Impact of COVID‐19 State of Emergency restrictions on presentations to two Victorian emergency departments."
American Covenant on Human Rights and Article 15 of the European Covenant on Human Rights explicitly state that states may suspend the exercise of certain human rights by declaring a state of emergency.37 The constitutions of the world countries have also considered the state of emergency and explained its legal status.
In general, a state of emergency is when a country goes out of its normal and current state and gets into a deep crisis.
38 For example, in the event of armed conflict, natural disasters such as floods, earthquakes, droughts, and widespread terrorist attacks, countries become out of their current state and fall into crisis and state of emergency.39 In the current situation, some governments have suspended some human rights and freedoms by declaring a state of emergency because the Covid-19 has taken countries out of their normal state.
Throughout history, legal thinking in the field of emergency has evolved.
In the nineteenth century, the idea of the absolute sovereignty of states had many supporters among thinkers.40 For this reason, the philosophy of declaring a state of emergency in maintaining absolute sovereignty and political power was abandoned.
In nineteenth-century history, when the existence of a government was in jeopardy, governments declared a state of emergency to maintain it.
Of course, in that century, the idea of absolute sovereignty was also critical, and some states, including the United States, had delegated power to the president in the twentieth century to declare Emergency Medicine Australasia 32.6 (2020): 1027-1033.
39 Kuniya, Toshikazu.
"Evaluation of the effect of the state of emergency for the first wave of COVID-19 in Japan."
Infectious Disease Modelling 5 (2020): 580-587.
40 Goodhart, Arthur.
"The rule of law and absolute sovereignty."
Annales de la Faculté de Droit d’Istanbul.
Vol.
9.
No.
12.
1958.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 268 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law a state of emergency under congressional oversight.
41 Karl Schmidt also strongly defended the theory of absolute sovereignty.
In the view of Karl Schmidt Reich, President of Germany Weimar’s, he had broad powers in declaring a state of emergency because such powers were necessary to maintain German and Weimar rule.
In practice, following the German Weimar’s constitution, the president had broad powers to declare a state of emergency and determine its provisions, and in an emergency could even suspend individual and social rights and freedoms.
In the twentieth century, the theory of broad sovereignty in declaring a state of emergency was gradually challenged.
The new idea was based on the premise that the philosophy of declaring a state of emergency is not to maintain political sovereignty and power.
Instead, the philosophy of declaring a state of emergency is to protect the republic, the rule of law, and democracy.
42 For this reason, in the twentieth century, the powers of governments to declare a state of emergency were limited and monitored.
There is now a belief that the state of emergency should be subject to the rule of law and cannot be considered as such.
For example, in many European countries, two exceptional law cases can be sued against the government, and its decision to suspend the law overturned in court.43 In the following, some examples of constitutions of countries in the face of an emergency are discussed.
In the United States, the state of emergency has long been based on the separation of powers, with the legislature (Congress) and the judiciary (US Supreme Court) overseeing the 41 Fisher, Louis.
"Delegating Power to the President."
J. Pub.
L. 19 (1970): 251.
42 Schweitzer, Carl C. "Emergency Powers in the Federal Republic of Germany."
Western Political Quarterly 22.1 (1969): 112-121.
43 Ibid president’s powers to run the country during a state of emergency.
Under the US Constitution of 1787, the extension of the powers of the United States president in an emergency was possible only with the permission of the US Congress, and the president could not arbitrarily extend his powers under the state of emergency.44 In 1861, just in time for the crisis of the American Civil War, the Supreme Court ruled that ordinary citizens could not be tried in military courts unless there was a general court.
In France, Article 16 of the French Constitution legally defines a state of emergency.
According to this article, “When the institutions of the republic, the independence of the country, the territorial integrity of the fulfillment of international obligations are seriously and immediately threatened, and the current functioning of the public forces arising from the constitution is disrupted, the president may be consulted.45“Formally adopt with the Prime Minister, the Speakers of the Houses, and the Constitutional Council.
[In the event of a state of emergency], the president is obliged to inform the nation of such a decision; The adoption of such measures must be inspired by the guarantee of the public forces emanating from the constitution, [also], be set in the shortest possible time and indicate the means of implementing its mission.46 The Constitutional Council will be the consulting party [in making such a decision]; Parliament will form a council by exercising its full rights; The National Assembly cannot be dissolved during the exercise of exceptional powers; Thirty days after the exercise of the 44 European convention for the protection of Human Rights and Fundamental Freedoms, 4 November 1950.
45 Giacomo, Delledonne," History and concepts of emergency", oxford constitutional law, August 2016, p. 4.
46 Ibid Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 269 special powers, the Constitutional Council may, at the request of the Speaker of the National Assembly, the Speaker of the Senate, sixty deputies or sixty senators, consider the need for a state of emergency.
That council is obliged to express its public opinion on the state of emergency as soon as possible.
“The Constitutional Council has full authority to review and comment, and to comment under the same conditions within sixty days after the exercise of the exceptional powers or at any time after this period.” As stated in Article 16 of the French Constitution, the declaration of a state of emergency by the president of this country is completely temporary and exceptional.
The president is obliged to observe substantive and formal conditions in declaring a state of emergency.
In essence, the declaration of a state of emergency is possible only if the institutions of the French Republic or the territorial integrity of France are under threat.47 In addition, the President of France can declare a state of emergency if it poses a serious and immediate threat to the national destiny of that country.
48 For this reason, even if there is a threat to the national destiny of France, but the threat is not serious and urgent, the president cannot declare a state of emergency.
Formally, the President of France is obliged to comply with certain conditions in a state of emergency.
Therefore, the President of France can declare an emergency only after consulting the Prime Minister, the Speakers of the Houses (Senate and National Assembly), and the Constitutional Council.
In addition, the powers of the President of France in declaring a state of emergency have been monitored; So that the Constitutional Council 47 Ex parte Merryman (1861), in: Ibid., p. 4.
48 Ibid of that country can review and review the state of emergency and even if the declaration of a state of emergency is not following the constitution, can lift the state of emergency.
Therefore, as can be seen, the powers of the President of France in declaring a state of emergency are not limited and are subject to the rule of law.49 The Constitution of the Islamic Republic of Iran also addresses the issue of declaring a state of emergency in Article 79.
The principle reads: “The establishment of military government is prohibited.
In case of war and emergencies such as this, the government has the right to temporarily impose the necessary restrictions with the approval of the Islamic Consultative Assembly, but its duration may not exceed thirty days, and if the need persists, the government is obliged to retake it from the assembly.
As used in Article 79 of the Constitution, if there is a state of emergency in the country, the restrictions are imposed only as necessary, and the government has no right to impose excessive restrictions based on the state of emergency.
Also, according to Article 79 of the Constitution, the declaration of a state of emergency is temporary, and the government cannot extend the state of emergency indefinitely.
Therefore, the Iranian constitution has accepted the principle of the exceptional and temporary nature of the state of emergency following international standards.50 Currently, 20 countries worldwide have officially declared a state of emergency due to the outbreak of Covid-19 citing the suspension of some human rights.
Due to the endangerment of national life, this group of countries officially declared the state of 49 La constitution de la république française, constitution du 4 octobre 1958, version mise à jour en janvier 2015.
50 Ibid.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 270 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law emergency caused by the outbreak of the Covid-19 to the United Nations, the Council of Europe, and the Organization of American States.
They have declared a state of emergency concerning the suspension of some human rights.51 In addition, ten member states of the Organization of American States have so far declared a state of emergency, including the number of states that have suspended some human rights.
The outbreak of the Covid19 52 , which has declared a state of emergency, and some human rights have been suspended, has been unprecedented throughout history.
A declaration of a state of emergency can be dangerous and a threat to human rights.
When a state of emergency is declared, those in power will threaten legitimate political power under the pretext of spreading infectious diseases.53 In such a situation, those in power can use their power to suppress their opponents, dissolve parliament, delay elections, and pave the way for establishing dictatorship and tyranny.
Therefore, a state of emergency must be provided immediately and immediately.
Bring.
Not be allowed to extend the state of emergency indefinitely; The rule of law must fully govern the state of emergency, and government officials must act within that framework within the law.54 4.3.2 Suspension of Rights 51 Martin Scheinin, Covid-19 Symposium: To derogate or Not to derogate, in: Covid-19 and international law, opinion juris symposium, p. 122.
52 The names of the countries that have declared a state of emergency in relation to the European Convention on Human Rights are: Albania, Armenia, Estonia, Georgia, Latvia, Moldova, Northern Macedonia and Romania.
53 Recent list of countries are: Argentina, Bolivia, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Panama and Peru.
Six of the ten countries have announced to the United The question also arises as to whether, in a crisis caused by the outbreak of covid19, governments are obliged to declare a state of emergency and consequently suspend certain human rights, such as the right to travel.
In this case, the tricks' suspension does not seem relevant.
This means that if the protection of citizens’ right to health requires a declaration of a state of emergency, governments are obliged to suspend certain human rights, such as free movement and assembly, by declaring a state of emergency.
Otherwise, if governments can effectively deal with the spread of infectious diseases without declaring a state of emergency, declaring a state of emergency does not seem necessary.55 As detailed in the previous article, Article 4, paragraph 1 of the International Covenant on Civil and Political Rights provides the suspension of human rights under certain conditions within States’ competence.
Nevertheless, declaring a state of emergency and consequently suspending some rights (albeit only in situations where national life is at stake) is justifiable.
56 Therefore, the necessity of suspending some tricks in such circumstances (with due regard) and not voluntary jurisdiction is itself a necessity of human rights.
The necessity of human rights obliges states to declare such a situation and consequently take appropriate measures within the framework of the restrictions provided for in Article 4.
Nations that they are suspending some of the human rights under the Covenant on Civil and Political Rights.
The list of these countries includes: Armenia, Ecuador, Estonia, Guatemala, Latvia and Romania.
54 Ibid.
55 Ibid.
56 Joseph, Sarah, and Melissa Castan.
The international covenant on civil and political rights: cases, materials, and commentary.
Oxford University Press, 2013.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 271 Accordingly, the appearance of Article 4 should not be construed as meaning the voluntary competence of States, which means their exclusive authority and, of course, their human rights obligations.
Such an interpretation represents the hermeneutic self-sufficiency of the human rights system within the interpretive system of rights conflict.57 4.3.3 Security Council in the face of the Covid-19 Following the outbreak of the Covid19, public opinion turned to the World Health Organization; What is more, this organization has the main responsibility to maintain global health.
For this reason, the World Health Organization (WHO) announced on 30 January 2020 that the outbreak of the Covid-19 is an international crisis and could pose a serious threat to public health.
However, the potential capabilities of the UN Security Council in dealing with the outbreak of the Covid-19 should not be overlooked.
Although the Security Council is primarily responsible for maintaining international peace and security and often engages in armed conflict situations, the Security Council has resources that can be used to combat the spread of communicable diseases.
Although the main task of the Security Council is to safeguard international peace and security, the council has interpreted its competence broadly, sometimes concerning the prevalence of infectious diseases, in the name of international security.
In the West58, the story of the Security Council entering the field of the fight against communicable diseases goes 57 Ibid.
58 Kondoch, Boris.
"covid-19 and the Role of the Security Council as Global Health Peacekeeper."
Journal of International Peacekeeping 23.1-2 (2019): 105-116. back to the outbreak of Ebola in Africa in 2014; In that year, the Security Council, for the first time, adopted a resolution declaring the Ebola outbreak in West Africa a threat to peace and national security.
Introduction to the resolution to justify that the outbreak in West Africa is primarily considered a threat to international peace and security, the following points are made: The outbreak of Ebola in West Africa endangers the stability of vulnerable countries; The prevalence of this disease has contributed to social unrest; The prevalence of Ebola in West Africa has harmed the situation of women; Countries infected with the Ebola virus do not have the capacity and capacity to fight the virus; The prevalence of Ebola has had several negative effects on food security, business security, and travel security.
The final section of Resolution 2177 includes the following measures to address the Ebola outbreak:59  Governments affected by the Ebola virus are encouraged to address the outbreak of the disease, such as diagnosis, quarantine, treatment of patients, protection of hospital staff, and staff training.
 Governments infected with the Ebola virus are encouraged to reduce the spread of the Ebola virus to political, security, social, economic, and humanitarian dimensions;  All Members of the United Nations are called upon to lift the border restrictions imposed as a result of the Ebola outbreak;  All Members of the United Nations are requested to provide the necessary medical equipment and facilities to 59 UN Security Council, Resolution 2177, 18 September 2014, on the outbreak of the Ebola Virus in , and its impact on west Africa.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 272 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law the Governments affected by the Ebola virus;  All Members of the United Nations are requested to implement the recommendations of the World Health Organization following the 2005 World Health Regulations on Tackling the Ebola Outbreak in West Africa.
In addition, Resolution 2177 established a special body called the United Nations Mission against Ebola.
The question now is, is the Covid-19 essentially comparable to the Ebola virus?
The fact is that Covid-19 and Ebola have considerable differences: First, the Ebola-related mortality rate is higher than that of covid-19.
Second, the Ebola virus only spread to a specific geographical area of the world (West Africa).
However, the prevalence of the Covid-19 is international and has spread to almost all world countries.
Also, the efforts of West African countries against Ebola have been relatively successful.
Instead, government measures against the Covid-19 have not yet been successful, and countries worldwide are engaged in various dimensions to combat this dangerous disease.
Although the death rate from covid-19 is lower than from Ebola, the death rate from covid-19 is higher than all deaths from Ebola and is also increasing.
This is because the prevalence and rate of Covid-19 spread are higher than that of Ebola.
In addition, the Covid-19 can cause serious disruptions to a country’s health system.
Hospitals in the Covid-19 countries are full of patients infected with the virus.
In such circumstances, on the one hand, the 60 The United Nations Missions for Ebola Emergency response (UNMEER).
61 Kaufman, Kenneth R., et al.
"A global needs assessment in times of a global crisis: world psychiatry response to the COVID-19 pandemic."
BJPsych open 6.3 (2020).
medical staff of the hospitals is always faced with difficult decisions in the correct allocation of the hospital staff; Because hospital beds are limited.
However, the number of patients infected with covid-19 is high, and physicians and treatment staff often wander to which patient to assign limited hospital admissions.
On the other hand, the decision to allocate hospital beds has negative psychological consequences; For example, a doctor who decides to give a bed to a young person instead of a middle-aged person may suffer a guilty conscience and eventually lose their job.60 Hospital overcrowding and hasty decisions may make the medical staff miserable in the meantime and reduce the quality of the work of therapists and physicians.
61 Governments inevitably take steps to counter the rapid spread of the Covid-19, such as blocking borders, restricting public gatherings, and sometimes restricting trade in goods.
Such measures may have several negative consequences on countries’ economies and lead them to a crisis of recession and unemployment, which can already be seen these negative consequences in many countries.
The fact is that the Security Council can play an important role in combating the spread of the Covid-19.
62 On the one hand, the Security Council has experience dealing with the Ebola virus and can prioritize its fight against the Covid-19.
On the other hand, given the international dimension of the covid-19 crisis, the Security Council can describe the outbreak of covid-19 as a threat to international security and, in Chapter VII of 62 Haque, Mainul.
"Combating COVID-19: a coordinated efforts of healthcare providers and policy makers with global participation are needed to achieve the desired goals."
Bangladesh Journal of Medical Science (2020): 01-05.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 273 the UN Charter, call on UN member states to take binding measures.
Adopt this field.
In other words, in the form of Chapter VII of the Charter of the United Nations, the Security Council can establish binding legal obligations for members of the United Nations.
To date, governments’ efforts to combat covid-19 have often been individual, and governments have engaged less in international cooperation to combat covid19.
The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” It can also strengthen the position of the World Health Organization against Covid-19 and, by adopting a resolution, call on all member states of the United Nations to consider and implement the recommendations of that organization.63 Under Article 25 and 48 of the Charter of the United Nations, States Parties undertake to implement the decisions of the Security Council.
In addition, under Article 103 of the Charter of the United Nations, the obligations of States under the charter take precedence over other obligations of States.
For this reason, any decision taken by the Security Council to address the further spread of the Covid-19 (Article 103 of the Charter) will take precedence over other obligations of States.
In particular, prioritizing the obligations of governments under the charter 63 Kondoch, Boris.
"covid-19 and the Role of the Security Council as Global Health Peacekeeper."
Journal of International Peacekeeping 23.1-2 (2019): 105-116.
64 United Nations, Charter of the United Nations, 24 October 1945, Article 103. in the fields of investment, trade, and aviation is of particular importance.
64 Explain that governments’ decisions to combat the outbreak of covid-19 may conflict with their trade, investment, and aviation commitments.
For this reason, the Security Council, following Article 103 of the Charter, can facilitate the fight against the spread of the Covid-19.
However, any action by the Security Council to combat the increased prevalence of the Covid-19 requires the consent of all five permanent Security Council members.
For a long time, not only was there no spirit of cooperation among the permanent members of the Security Council, but the members of the Security Council accused each other of making biological weapons against human society.
Some Chinese officials have accused US military agencies of building a biological weapon called the Covid-19.
In contrast, the current US President (Donald Trump) also named the Covid-19 a Chinese virus and blamed the Chinese authorities for its spread.65 After a long debate and the veto of a draft resolution by the United States on Friday, 9 May 2020, urging governments to combat the effects of the Covid-19, the Security Council was finally forced to adopt a resolution under pressure from the pressure the international public opinion.
66 UN Security Council inefficiencies The first question that comes to mind is whether the UN Security Council must deal with global health crises.
In the age of globalization, the rapid movement of people has increased the prevalence of epidemics 65 https://www.cnn.com/2020/05/09/politics/usrejects-un-coronavirus-resolutionchina-who / index.html.
66 see the Resolution (S / RES / 2532) from July 1, 2020.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 274 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law and even turned them into pandemics.
A phenomenon that endangers everyone’s health has become one of the concerns of the international community.
For example, in the first two decades of the third millennium, SARS (2003), avian influenza (2009), cholera in Haiti (2010), and in Yemen (2018 and beyond), Ebola in Africa and Latin America (2019).
Finally, covid-19 (2020), Zika (2014)67 posed a serious threat to human health; AIDS should not be overlooked either.68 The Charter of the United Nations (Article 55) shows that this organization needs the principle of equal rights of the people in determining their destiny to create conditions of stability and prosperity to ensure peaceful and friendly relations based on respect.69 It does not appear in Chapters 6 and 7 of the charter, which is specific to the powers of the Security Council but requires the United Nations to take action to address public health problems.
Obviously, as one of the main pillars of this organization, the Security Council, The procedure of this pillar also confirms such an attitude towards Article 55.
The Security Council’s broader interpretation of “international peace and security” has made it possible for the pillar to operate in many areas, including poverty, the fight against international crime, terrorism, human rights and humanitarian violations, environmental degradation, and so on.
Enter.
In addition to the Security Council, the World Health Organization (WHO), as one of the specialized agencies of the United Nations, 67 Zika is a disease that begins with the bite of an insect and kills an infected person in a short time.
Thousands of people in Latin America have died from the disease.
68 AIDS first died in 1981 in California (USA).
Nevertheless, the Security Council draws attention to the danger of its spread with the adoption of Resolution 1308 of 17 July 2000.
The Council also reiterated in 2011 the danger of the spread of also recognizes the link between health protection and peacekeeping.
It should also be noted that the World Health Organization (WHO) Regulations, which make such a relationship well known, apply to the prevalence of all pandemics, regardless of their source.
Despite such a solid foundation and existing procedure for Security Council intervention, this pillar has long been reluctant to declare that it is safe from a dangerous pandemic called covid-19, which has indiscriminately targeted and killed humanity without any distinction.
Finally, on 1 July 2020, with the adoption of Resolution 2532 70 , while declaring that the council has the primary responsibility for maintaining international peace and security, he emphasized the need to strengthen national, regional, and global cooperation and solidarity that threatens international peace and security.
The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” Of course, the council declares that military operations (s) against ISIL, al-Qaeda, and Jabhat al-Nusra and other individuals, groups, agencies, and institutions related to al-Qaeda or ISIL, and other terrorist groups, has been carried out by the council.
Furthermore, these operations can continue against them.
Finally, the council calls on the Secretary-General to instruct the peacekeepers to support their local authorities and governments to combat AIDS, both because of the hostilities and not as a threat to peace.
69 Klabbers, Jan. An introduction to international organizations law.
Cambridge University Press, 2015.
70 Daugirdas, Kristina.
"How and Why International Law Binds International Organizations."
Harv.
Int'l LJ 57 (2016): 325.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 275 the Covid-19 pandemic.
With the passage of such a resolution, which appears to have been issued under Chapter VII of the Charter (because the Security Council stated in the preamble that its long-running expansion into the Covid-19 Pandemic threatens international peace and security), there are still no tangible effects.
Not visible against the covid-19 pandemic.
A look at the performance of governments and the Security Council shows that their willingness to take action is more like a mirage, which ultimately leads the thirsty to death.
Governments have shown that they always maintain a margin of maneuver to respond to health-related threats, and that is to impose rules that are not necessarily in line with international obligations in the field of intellectual property rights in their relations.
The conclusion of the TRIPS Plus trade agreement, which has made it much more difficult to break the rules of ordinary TRIPS, shows that what matters to them is not man but power and the economy.
Now, among the states, those who have access to important financial instruments and scientific and research facilities to combat the covid-19 pandemic, and who are also permanent members of the Security Council with a privileged veto, decide instead of “based on,” Do not even agree on the title of the resolution.
The United States has even gone so far as to threaten to cut the World Health Organization (WHO) budget altogether under the pretext of supporting China.
However, the Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” The council can adopt two categories of measures: The first category includes economic decisions and restrictions, including economic measures, mandatory quarantine, travel bans, etc., to ensure public health and, of course, without creating fear and panic.
It is unnecessary to isolate and even enforce civilian coercive measures (as enshrined in Article 41 of the Charter) and to use the pressure of world public opinion on governments that refuse to implement those decisions.
If the council itself does not have the power of expert discretion, it can impose at least the recommendations of the World Health Organization on governments in the form of binding resolutions.
The second category is the use of new measures.
The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” For example, it was possible to withdraw from its adopted resolution from the “TRIPS” and “TRIPS Plus” treaties.
Since, following Article 103 of the Charter, the obligations of States under the charter take precedence over their other agreements, as long as there is a covid-19 pandemic, it is possible to derogate from these treaties.
In addition, the Security Council could ask the International Monetary Fund (IMF) to provide free or interest-free financial assistance to needy governments or at least to repay their arrears.
Finally, he asked them not only not to make their demands, but also to take action (including litigation) against those governments so that they could fight the covid-19 pandemic, regardless of such concerns.
This is not a new proposal, of course.
The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iraq, that it monitor Iraq’s compliance with “the steps required by the IAEA Board.” However, the practice of the Security Council and Resolution 2532 show that it is reluctant to take such action in these cases.
One of the Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 276 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law Security Council’s most important measures to combat the epidemic is Ebola, which shows that it has not gone beyond a few recommendations.
The council first expressed concern about the onset of the Ebola epidemic in 2013, without entering Section 7 of the Charter.
This pillar finally unanimously adopted Resolution 2177 on 18 September 2014, acknowledging the urgency of the Ebola situation and considering it a threat to peace.
Despite this, the Security Council also emphasized this point in its statement; Security did not take any comprehensive and effective action on the dimensions and issues raised by the disease and merely raised a security debate without focusing on public health concerns.
In other words, the council did not want to play the role of a “good ruler” and fight all aspects and effects of the disease, including security and public health.
In the adopted resolution, the security aspects have been considered by the Security Council.
The council justifies its entry by establishing a relationship between Ebola and the resurgence of armed conflict.
However, it seems that the council begins its movement based on a health crisis and eventually ties it to a socio-economic and, in fact, security threat.
The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” The council does not do so in Resolution 2177, tying its entry into the Ebola epidemic into a state of conflict and the possibility of a return to armed conflict in the countries involved, namely Guinea, Sierra Leone, and Liberia.
The Security Council 71 NU.S/PRST/2014/24,21Nov 2014.
72 Quintana, Francisco-José, and Justina Uriburu.
"Modest International Law: COVID-19, International Legal Responses, and merely makes several recommendations with no legal obligation in its resolutions, and it does not take any coercive action.
The council urges the governments involved in Ebola to take the necessary measures and urges other governments to assist them and coordinate UN action.
In other words, the council does not solve the Ebola epidemic problem.71 The Security Council requested that in addition to the International Atomic Energy Agency’s ongoing inspections in Iran, it monitors Iran’s compliance with “the steps required by the IAEA Board.” This does not seem to be an excuse.
The Security Council has no competence in the field of health72; That is why Article 12 of the “World Health Regulations” considers the declaration of an urgent state of public health on an “international” scale under the auspices of the World Health Organization.
The task that the director-general of this organization has done well has declared covid-19 as a pandemic.
Thus, with the announcement of this situation, the earlier entry of the Security Council based on “severity,” “urgency,” and “extraterrestrial effects” of covid-19 was well justified.
Of course, restricting the Security Council from entering the realm of counter-pandemics in a “state of emergency” actually reduces the council’s role to a practical one, which is often unrelated to these crises.
It seems that the main factor in the entry of the Security Council into the realm of public health is not the extent of the crisis but its nature and danger to human life.
73 Although the Security Council has finally been able to pass a resolution directly on the covid-19 pandemic, it must be said Depoliticization."
American Journal of International Law 114.4 (2020): 687-697.
73 Spector, Hannah.
"The significance of sense in the time of plagues: Curricular responsiveness to the Covid-19 crisis."
Prospects (2021): 1-17.
Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 277 that this pillar is ultimately a central body whose actions are the main criterion for government action.
In the current intergovernmental society, the state is still the main thinker and decision-maker.
Can one hope for effective action from this idiot and Stephanie, who is almost 400 years old?
Is it not time for individuals to save themselves by covid-19 by realizing their organized solidarity (for example, in the form of civil society) and ignoring the wishes and policies of governments?
It seems that the hope for these 400-year-old Leviathans and their institutions is to be pounded.
Covid-19 was the perfect means to unveil the ugly and dreadful face of this monster (government) ostensibly hidden behind institutional multilateralism (the Security Council) and to show the United Nations that this usurper (government) will never lead them to the goal of having the same health, real and lasting peace, material and spiritual well-being, and in a word, happiness.74 5.
Conclusion The future of contemporary international law in the face of the covid-19 dilemma is uncertain.
However, the postcovid-19 era may be very similar to the precovid-19 era, both legally and in terms of the survival of international institutions.
Nevertheless, other old-fashioned institutions will no longer have so much credibility with the world’s public opinion.
Public distrust will certainly not allow any authority to survive.
Authorities lacking public trust must sooner or later disintegrate and join the history of history.
The future of “international law” is clear.
It is a right in which institutions from Westphalia and their ramifications will not have much room to 74 https://www.cnn.com/2020/05/09/politics/usrejects-un-coronavirus-resolutionchinawho/index.html.
thrive, even if they seem to continue to live a shameful life.
Relevant, like the United Nations Security Council, have serious doubts.
A group of countries has explicitly or implicitly stated that the World Health Organization and other institutions have not done their job properly dealing with covid-19 and have not effectively prevented its spread.
For this reason, many suggestions have been made to modify their optimal structure and function, especially in the case of the World Health Organization.
In the future, it seems that the World Health Organization will be the focus of international law developments, and reforms will be made to strengthen the structure and improve its efficiency.
This prediction is further reinforced by the fact that there is a risk of making microbial weapons.
In the current situation, terrorist groups can endanger international peace and security by building laboratory viruses.
Therefore, the World Health Organization structure must be strong and efficient enough to withstand the threats posed by the spread of these viruses.
The World Health Organization (WHO) is expected to move from a passive and subsidiary state to play a more effective and important role in tackling the threat posed by the spread of epidemics.
Legal Research Quarterly Special Issue of Law and Covid19 The Covid-19 Problem in the Mirror of Contemporary International Law, In addition, the covid-19 phenomenon could transform the concept of international peace and security in the future.
In the classical sense, armed conflict posed a serious threat to international peace and security.
Gradually, however, the concept of international peace and security has become broader; So that some human problems such Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation 278 | Norouzi, Ataei Covid 19 in the face of Contemporary International Law as the spread of epidemic diseases can threaten the international community's security.
Covid-19 has stopped the normal and current cycle of human life for several months.
In the current situation, international law can consider the outbreak of covid-19 as a threat to international peace and security and, in the future, take measures to combat the spread of such pandemics.
Achieving this requires a more efficient and effective World Health Organization.
Of course, the future is unknown to man, and it is impossible to predict the future except in rare cases.
What is said about the future is based only on suspicion; Suspicion also does not indicate certainty and, in the end, does not lead to much.
In addition, the future of international law in the face of the Covid-19 depends partly on scientific and medical advances and its success in the manufacture and production of vaccines and therapeutic drugs.
Regardless of the future, the Covid-19 has exposed the shortcomings of the past and the present; The effects of this deadly virus on the future of humankind will be revealed gradually and over time.
The Covid-19 reminded humans that it is weak; What is more, in a short time, an extremely small virus could transform and defeat society with all its splendor and sophistication, and sophisticated technologies.
The Covid-19 reminded the man that the destinies of all human beings are interdependent; Because the outbreak of covid-19 in one part of the world can affect the whole world and defeat and sadden.
For this reason, overcoming humanitarian crises requires genuine international solidarity and cooperation.
Today, no state can overcome the humanitarian crisis alone, especially as the experience of right-wing governments has exposed the weakness of national selfishness and brought more scandal.
If, until yesterday, the claimants of the revival of national interests at the cost of neglecting international institutions were seeking their national glory, the Covid-19 showed that the revival of national interests by disregarding the rights of the 19 The contemporary international is not compatible with international institutions.
Conversely, for national peace and security, you must first think of international peace and security.
Human encounters with human suffering throughout history have not been subject to a single pattern.
Man has sometimes tried to improve his work by learning from the misery, defects, and crises.
Sometimes this same man has not only not learned from the misery, shortcomings, and crises but has also insisted on the selfishness and shortcomings of his work.
Will humans learn from the misery caused by the outbreak of the Covid19?
Will governments wake up to widespread “international solidarity” to resolve the crisis after widespread deaths from the virus?
This question is never simple; Throughout history, the human movement has been sometimes wise and sometimes irrational.
In the future of international law, three possibilities are predictable and likely to occur: first, the possibility of strengthening policies based on national isolation; Second, strengthening policies based on international solidarity; Third, the transformation of the United Nations into a world parliament composed of representatives of the states and the true representatives of the peoples of the world.
The first possibility is that the Covid-19 will make the hard walls of national selfishness harder and taller.
The consequences of such a possibility are not far off; Right-wing governments will blame the spread of covid19 on overly open national borders, tightening borders, and tightening immigration policies.
Far-right governments have long blamed the problems of their Brawijaya Law Journal Vol.8 No.2 (2021) State Administration Role in Establishing Constitutional Obligation Norouzi, Ataei Covid 19 in the face of Contemporary International Law | 279 internal societies on the over-openness of national borders and over-compliance with the cumbersome provisions of international law.
Likely, such states will further tap into the contractionary policies after the Covid-19 crisis subsides and further restrict the entry of migrants and refugees.
As the US experience in cutting World Health Organization funding has shown, right-wing governments are likely to cut ties with the organization under the pretext of the Covid-19 outbreak or to undermine international institutions.
During the illness, irrational reactions to the covid-19 crisis even went so far as to veto a Security Council resolution calling for a temporary ceasefire to combat the Covid19.
The second possibility is that the worldwide outbreak of the Covid-19 will realize and strengthen “true international solidarity” and strengthen global institutions.
This possibility is reinforced by the fact that covid-19 is an international crisis that requires the participation and solidarity of the international community of states.
If governments pursue solidarity rather than conflict politics, the World Health Organization will find its rightful place.
Selfishness arising from national utilitarianism fails to overcome international crises.
In such a situation, rationality emanating from human society can curb international crises.
However, the outbreak of the Covid-19 has shown that existing international institutions are not efficient enough, at least in need of further reform and strengthening; However, one should not have much hope for them.
The third possibility is that, until the world is liberated from the hands of governments, it will transform the United Nations into a kind of world parliament composed of their representatives and the representatives of the people of the world (in the form of real civil societies).
Adopt.
This phenomenon can accelerate the process of “human rights-oriented international law.” Paying attention to the health of all the world peoples as a factor in accelerating the humanization of international law will certainly be a decisive phenomenon in maintaining international peace and security.
Here, the words of the famous German poet Goethe inevitably come to mind in his valuable work “Faust,” which says: “Finally tell me who you are?” Furthermore, he answers: “I am a part of that force that always wants bad and always creates good.” In other words, it is a force that thinks evil and creates good.
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Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.02 29 STATE LIABILITY FOR VIOLATION OF CONSTITUTIONAL RIGHTS AGAINST INDIGENOUS PEOPLE IN FREEDOM OF RELIGION AND BELIEF Zaka Firma Aditya, S.H.
and Sholahuddin Al-Fatih, S.H.
1 1 Magister of Law, University of Airlangga, Email: zaka.aditya@gmail.com Sholahuddin.alfath@gmail.com Submitted : 04-01-2017 | Accepted: 20-2-2017 ABSTRACT The government is perceived as the main perpetrator on violations of freedom of religion and belief in Indonesia.
As the state organizer, the government frequently issues discriminatory regulations and policies and tend to cause intolerance to minority religions and beliefs, particularly to indigenous peoples.
While freedom of religion or belief is a constitutional rights that cannot be reduced and is guaranteed universally in constitution and laws, the law provides limitation that causes ambiguity in the fulfillment of the rights of religion and belief.
In addition, the government mindset still adheres to the term of "official religion" and "non-official religion" in any policy-making, causing adherents of minority religions and beliefs to be considered as cultural heritage to be preserved.
This creates injustice, discrimination, intimidation and intolerance in rights fulfillment in state and society life.
This paper discusses the existence of the guarantee of freedom of religion and belief for indigenous people and state liability for violations of freedom of religion and belief.
This research used normative juridical method with statute approach and conceptual approach.
Keywords: guarantee, religion, belief, indigenous peoples, human rights, liability I.
INTRODUCTION Protection of the constitutional rights of Indonesian citizens to religious freedom is far from expectations.
National Commission on Human Rights (Komnas HAM) reported increase on violations of religious freedom cases by 74 reports in 2014 to 87 reports in 2015 with 93 violations of freedom of religion and 1 Cited from http://www.voaindonesia.com/a/pelanggaran-kebebasan-beragama-meningkat-/3203566.html accessed on 20 August 2016 at 20.10 2 Ibid.
See also The Wahid Institue, Laporan Tahunan Kebebasan Beragama/Berkeyakinan dan Intoleransi Tahun 2014, Jakarta, 2014, 21 belief1.
The similar report was received by The Wahid Institute during 2015 reaching 190 cases and 249 actions.
This number was 23 percent higher than that of 2014 by 158 cases reported and 187 violations of freedom of religion and belief2.
The highest case of violation was prohibition and destruction of places of worship and the prohibition of obstructionism and harassment of religious activity as well as Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 30 the omission of violence.
More ironically, local government as obligation stakeholder in protecting the rights of the community was the actor frequently issued discriminatory policies which sometimes lead to violence in the community.
In fact, freedom of religion and belief has been fully guaranteed in the Constitution and the various laws and regulations and other legal instruments.
In Section 28E of paragraph (1) and (2) the Constitution specifically reflects the basic values of the Deity of the Almighty in a more detailed form of freedom of religion and to worship according to religion and belief respectively3.
This article is then reinforced in the provision of Article 29 paragraph (1) of the 1945 Constitution stating that " The State shall be based upon the belief in the One and Only God", while paragraph (2) mentioned; " The State guarantees all persons the freedom of worship, each according to his/her own religion or belief.” The consequence is the guarantee in the constitution, making the right of every citizen to perform the teachings of religion, belief and ritual worship has become a constitutional right.
As a constitutional right, the state has an 3 Ria Asmi Carsi, ‘Inkonsistensi Perlindungan Hukum Bagi Penghayat Kepercayaan Terhadap Tuhan Yang Maha Esa’, n.3 2013, Jurnal Keadilan Sosial, 39-40.
4 Lukman Hakim Saefuddin, ‘Indonesia adalah Negara Agamis: Merumuskan Relasi Agama dan obligation to guarantee, protect and fulfill the rights, to promote harmony, peace, and harmony within the frame of the life of society, nation and State.4 As a pluralistic country, religion and beliefs held by the people of Indonesia should be able to prove that a plural society has coexisted in difference.
The society should get along in social mobility, economy, and religion in everyday life.
In some areas, the religious differences occur in one family, bound by customs.
In addition, religions in Indonesia reflect the plurality of faith and belief in God.
Islam, Protestant, Catholic, Hindu, Buddhist, and Confucian frequently referred to as the state religion as they receive many facilities particularly by the state.
While the six religions are gaining the attention of the state, the adherents of other religions such as Baha'i, Sinto, Jewish, kejawen, Kahuringan and indigenous religious beliefs inherited by the ancestors are free to be embraced and believed by the society.
In other words, religious values, customs, and culture are manifestation of view of life and society spiritual ethos as the crystallization of learning from interaction and internalization of the values of human Negara dalam Perspektif Pancasila’, (Paper presented at the “Kongres Pancasila” held by Gadjah Mada University, Yogyakarta and The Constitutional Court of the Republic of Indonesia, in Yogyakarta, 30 May-1 June 2009), 4.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 31 beings on the environment from generation to generation.
In its development, however, the government no longer recognizes beliefs as a stand-alone entity beyond religion, yet as merely culture.
Furthermore, the government invited, even urged beliefs adherents to return to the main religions5.
The government's call leads to newly more crucial problems.
The adherents of beliefs rejected to return to the six main religions recognized by the government, namely Islam, Catholic, Christian, Buddhist, Hindu and Confucian.
They believed that tit is their religion that deserves to be called as the major religion in Indonesia.
The six major religions recognized by the government, according to them, is nothing but imported religion, not the original religion of the archipelago, their religion has long existed in the country even before Indonesia was established6.
The series of intolerance and discrimination acts indicate that diversity portrait has suffered deprivation from plurality roots.
Despite the progress 5 Siti Musdah Mulia, ‘Menuju Kebebasan Beragama’, (Paper presented in a Seminar and Workshop of Komnas HAM on the theme of Freedom of Religion and Belief in Indonesia, Palu, 11-12 September 2006), 51 6 ibid 7 Siti Musdah Mulia, ‘Potret Kebebasan dan Berkeyakinan di Era Reformasi’, (Paper presented at the National Workshop on the theme Human Rights Commission of Human Rights Indonesia has made after reformation era on religion issues particularly in term of setting, there are still problems to be solved from regulatory issues to increasing violence.
It indicates that issue of religious freedom is not only a state problem and it is certain that there is no single solution to solve the complex problem7.
Mahfud MD8 confirmed that the shift of authoritarian regime to democracy is obviously good news for freedom of religion, belief, expression and association.
However, its implementation has been problematic.
As the government was formed through democratic mechanisms, it is powerless to reduce the intensity of religious freedom issue.
In fact, Indonesia is accused as perpetrator of religious discrimination, particularly against religious minorities, groups, and marginalized indigenous people.
Comparing the state diversity and the reality, there are three tendencies frequently faced by plural society including; (1) develop potential chronic conflicts in relations between groups, (2) Actors of conflict perceive it as an all-out war (3) the Enforcement in the 10 Years of Reform, in Borobudur Hotel, Jakarta, 8-11 Juli 2008), 32.
8 Mahfud MD, ‘Kebebasan Beragama Dalam Perspektif Konstitusi’, (Paper presented at the Conference of Religious Leaders of ICCPR: Affirming Religious Freedom in Indonesia, Demanding Commitment of President and Vice President-elect, held by Indonesian Conference on Religion and Peace (ICRP) Monday, 5 October 2009 Jakarta), 1.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 32 process of social integration occurs through domination of one group by another group.
Potential of conflicts in plural society cannot be denied.
In the past, religious harmony should be paid very expensively with the explosion of sectarian violence in a number of areas.
Therefore, the greatest challenge for a plural society is the fragility of the common bonds as a result of differences in religion (faith and trust) that easily trigger inter-religious conflict if not properly managed.
Religious conflict has always been a very serious challenge for the pluralistic Indonesia.
Plus, the absence of official recognition of the minority religions and beliefs cause believers to experience social exclusion from community stigmatization.
This is evidence from the number of Government and Parliament/DPRD member who consider believers groups and indigenous peoples as underdeveloped community group and as an improperly godless community group, even heretical or have deviant beliefs.
Various groups of people also consider that members of minority religious groups need to be encouraged to adopt official religions.
II.
LEGAL MATERIALS AND METHOD This paper uses juridical-normative method.
The approach used in this Paper are statute approach and conceptual approach.
Statue approach was carried out by examining all acts and regulations related to religious freedom both national laws and international ratification.
Conceptual approach was formed moved from views, doctrines and concepts of law developed in the science of law.
The legal materials used in this research were primary and secondary laws.
Primary legal materials are in the form of laws and court decisions.
Secondary legal materials are in the form of legal books, law papers and journals.
III.
RESULT AND DISCUSSION The Existence Of Freedom Of Religion And Belief Of Indigenous People A.
Constitutional Guarantees of Freedom of Religion and Belief in Indonesia and International Covenants Constitutional protections of citizens in running various activities in religion and beliefs are contained in various acts and regulations both in national and international levels.
In Indonesia's constitution, the philosophy of religions and beliefs recognition had first existed before the UDHR 1948, ie on the basis of Pancasila (philosophical foundation of the Indonesian state) in the first principle "Belief in the one Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 33 and only God".
The opening of the 1945 Constitution also stated “By the grace of God Almighty...” implying the recognition of the Indonesian to the power of God, that Indonesia recognizes the establishment of the nation is due to the grace of God.
This, addition to embracing the rule of law, indicate that Indonesian also embrace the sovereignty of God.
The implication is that the state, as a representative of God, should be able to protect, respect and fulfill its citizens to worship God.
Pancasila, the philosophical basis of the state has also guided its people to religion (the 1st principle), by upholding humanitarianism (2nd principle), and unity (3rd principle).
The problems faced the nation are settled by deliberation (4th principle) and not by the logic of the majority.
There is no extreme social inequality between rich and poor without (5th principle).
Indonesian dream rooted in collectivism and individualism, Pancasila idealism is not individual welfare yet prosperous society.
Social justice is the estuary of the four other9 precepts.
As the 9 M. Amin Abdullah, ‘Kebebasan Beragama Atau Berkeyakinan Dalam Perspektif Kemanusiaan Universal, Agama-Agama Dan Keindonesiaan’ (Papers Presented in forum Advanced Human Rights Training for Lecturers of Law and Human Rights by the Centre for Human Rights Studies, Islamic University of Indonesia (PUSHAM UII) in Yogyakarta in cooperation with Norwegian Centre for Human Rights (NCHR) University of Oslo Norway, Djogjakarta Plaza Hotel, 10 June 2011), 14-15 juridical consequences of this recognition, the state has duty to respect, protect and fulfill the rights of its citizens in performing religion or belief.
A series of state guarantees on freedom of religion and belief are mentioned in Article 28E paragraph (1) and (2), Article 28 paragraph (1), Article 28J paragraph (2) and Article 29 paragraph (1) and (2) of the 1945 Constitution.
Article 28E (1) and (2) generally reflects the basic values of Belief in the one and only God in a more detailed form of freedom of religion and to worship according to religion or belief respectively.
While Article 29 paragraph (2) sets up a specific thing with the word " The State guarantees all persons the freedom of worship, each according to his/her own religion or belief"10.
This means that the state has an obligation to guarantee and meet its citizens in religious worship and belief.
In addition, with the presence of state guarantees on religion and beliefs of citizens, the freedom of religion and belief is automatically a constitutional 10 Our constitution recognizes and specifies two words, which appears to overlap each other: “kemerdekaan (independence)” and “kebebasan (freedom)”.
For example, in Article 28, first paragraph 1 or Article 29 paragraph (2).
The word "free" or "freedom" can be found in Article 28E (1) and (2).
With nearly similar editorial, the word "independence" in section 28 I of the 1945 Constitution was changed to "freedom" in article 4 of the Human Rights Law No.
39 of 1999 on Human Rights.
See The Wahid Institute (2014), above n.3, 5.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 34 right of citizens that should not be reduced in any form.
The state’s guarantees to citizens' religious beliefs also exist in various acts including Law No.
39 of 1999 on Human Rights, Article 22 paragraph (1) mentioned; "Everyone is free to embrace their religion and to worship according to his religion and belief".
Article 22 paragraph (2) mentioned; "The state guarantees freedom of every person to embrace their religion and to worship according to his religion and belief".
In 2005, the Government of Indonesia ratified ICCPR (1966) which is then adopted in Act No.
12 Year 2005 and the ICESCR (1966) adopted in Act No.
11 Year 2005.
In each of the ratification of the Covenant, Indonesian government did not do anything except making a declaration regarding the right to self-determination (Article 1).
With the second ratification of the Covenant, Indonesia is bound as a State Party to the Treaty of human rights and must adhere to implement the contents of both the Covenant and to submit periodic reports to the UN Human Rights Treaty Body 11.
Act No.
12 Year 2005 concerning the Ratification of the International Covenant on Civil and Political Rights 11 Komnas HAM, Upaya Negara Menjamin HakHak Kelompok Minoritas di Indonesia : Sebuah Laporan Awal, Komisi Nasional dan Hak Asasi Manusia, Jakarta, 2016, 18.
(ICCPR) Article 18 paragraph (1), stated: "Everyone has the right to freedom of thought, conscience and religion.
This right includes freedom to adopt or accept a religion or belief of his choice, and freedom, either individually or jointly with others, and in public place or enclosed, to practice a religion or belief in worship activities, observance, practice and teaching."
Article 18 paragraph (2) mentioned; "No one should be forced to interfere with his freedom to adopt or accept a religion or belief of his choice".
The ratification of this convention means that Indonesian government has insisted that the conception of human rights in Indonesia has been universal, and the ratification has legally binding12.
Act No.
7 year 2012 on Social Conflict Management also gives attention to the possible emergence of issues related to religion.
This acts sees religion issues as one of the potential conflicts through enmity between religious communities and/or the Inter-religions.
However, this acts confirms that the handling of the conflict coming from religious matters 12 Shanti Rachmadsyah in M. Syafi’ie, ‘Ambiguitas Hak Kebebasan Beragama di Indonesia dan Posisinya Pasca Putusan Mahkamah Konstitusi’, V.8 n.5 October 2011, constitution journal,.
683.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 35 should reflect the principle of human rights13.
Freedom of religion and belief is also regulated in the UDHR adopted in 1948 as one of the forms of human rights, in Article 18 stating; "Everyone has the right to freedom of thought, conscience and religion; in this case, including change religion or belief ..." It also covers series of articles of the 1981 Universal Declaration on the Elimination of Intolerance and Discrimination Based on Religion.
Article 1 (2) states: "no one can be subjected to coercion which would reduce the freedom to follow a religion or belief according to his choice".
Article 6 (a) to worship or assemble in connection of a religion or belief and establish and manage places for that purpose ", the letter (c) acquire, create and use adequate equipment and materials necessary with regard to ceremonies or customs a religion or belief ", letter (h) respecting the days of tradition and celebrate holidays and ceremonies in accordance with the teachings of the religion or beliefs", and letter (i) establishing and managing communications with the person and society in matters of religion or belief at the national and international levels ".
13 See Arif Wahyudi, ‘Quo Vadis Jaminan Konstitusional Hak Atas Kebebasan Beragama/Berkeyakinan: Menguji Peran Negara,’ n.3 2013, Journal of Justice, 4.
Based on the provisions of the Indonesian constitution, the Human Rights Act, UDHR and ICCPR, the right to freedom of religion and belief can be distinguished into two areas, namely internal freedom (forum interum) and external freedom (forum externum)14: a.
Internal Freedom (Forum Internum).
Internal freedom that provides freedom of conscience to believe, embrace and move religion and belief and the right to maintain or embrace or move from a religion or belief.
Rights to freedom have been recognized internationally and nationally as one of the elements of human rights that cannot be reduced and restricted (non derogable rights), even in war and public emergency condition, the state must not intervene nor force (coercion) forum this internum, as stipulated in Article 28 paragraph (1), Article 4 paragraph (2) of the Covenant on Civil and Political Rights and Article 74 and Article 74 of the Human Right Act.
b.
External Freedom (Forum Externum).
Freedom of either alone or together with others, in public or in the private region to manifest religion 14 The Wahid Institue (2011), above n.2, 6-10.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 36 or belief in the form of teaching, practice, worship and arrangement.
This freedom includes the freedom to establish places of worship, freedom to use religious symbols, the right of freedom to celebrate religious holidays, the right of freedom to elect religious leaders, the right to teach and spread the teachings of religion, the right of parents to educate religion to his son, the right to establish and manage religious organizations.
B. Ambiguity of Freedom of Religion and Belief For Indigenous Peoples Interestingly, in many legal provisions regulating the constitutional protection of religious freedom in Indonesia such as constitution, Human Rights Act and other legislation, the government pays more attention on religion than belief/faith.
In fact, the number of beliefs that exist in Indonesia exceeds the number of religions officially recognized by the state.
According to the Ministry of Culture and Tourism in 2011, the number of believers of nondenominational faiths reached nine million people in 248 center organizations and 980 branches organizations spread across 25 provinces in Indonesia.
It means that the government no longer recognizes beliefs as a stand-alone entity beyond religion, yet merely culture.
Thus, the legal umbrella is Article 18B paragraph (2) of the 1945 Constitution, stating that "The State recognizes and respects traditional communities along with their traditional customary rights as long as these remain in existence and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law."
Therefore, there is a conditionality where an entity can be classified as customary law communities, namely; (1) as long as indigenous people exist; (2) in accordance with the times; (3) in accordance with the principles of the Republic of Indonesia; and (4) shall be regulated by law.
The existence of this conditionality cause the dependency of indigenous peoples on the political will of the authorities.
It can be seen with clause stating "regulated by law".
As a result, in case of violation of the constitutional rights pertaining to indigenous peoples' rights including freedom of religion and belief, it will be difficult to get protection from the state.
It deals with the status of "recognition" to be provided by law.
According to the provisions of Article 51 (b) of Act Number 24 Year 2003 regarding the Constitutional Court, customary law community can be an applicant in a constitutional case.
However, when associated with the prerequisite "recognition regulated by law", the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 37 customary law community who have not obtained the legality from the state cannot defend their constitutional rights.
This then raises a new problem when there is a constitutional violation of the religious freedom of indigenous peoples which cannot be resolved through the legal or constitutional complaint.
Meanwhile in other provisions of Article 28E paragraph (1) and (2) of the 1945 Constitution affirms that the right of religion or belief and worship according to their religion or belief includes in human rights.
It is reinforced in the provisions of Article 28 paragraph (1) and (2) of the 1945 Constitution stating that the rights attaching to the right of religious freedom cannot be revoked under any circumstances (non derogable Rights) and the right not to be discriminated against in freedom religion and belief.
Human Rights Act also recognizes freedom of diverse and belief as a right that ca not be reduced in any form (non derogable Rights) as defined in Article 4; "The right to life, freedom from torture, the right to personal freedom, freedom of thought and conscience, freedom of religion, ........., are human right that cannot be reduced under any circumstances and by anyone".
However, the provisions mentioned are useless when dealing with Article 28J paragraph (2) of the 1945 Constitution which limits rights guarantees, stating: “In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law for the sole purposes of guaranteeing the recognition and respect of the rights and freedoms of others and of satisfying just demands based upon considerations of morality, religious values, security and public order in a democratic society.” Meanwhile, the same restriction is also regulated in Article 73 of the Human Rights Act and Article 18 paragraph (3) of the ICCPR.
Article 73 of the Human Rights Act, stated: "the rights and freedoms set forth in this law can only be limited by and under the laws, merely to ensure recognition and respect for human rights and fundamental freedoms of others, morality, public order public and national interest ".
Article 18 paragraph (3) of the ICCPR, stated: "the freedom to practice religion or beliefs may only be restricted by law are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others".
The limitation provisions mentioned indicated that guarantee that religious freedom which cannot be reduced by anyone and in any form, is limited by the law.
This can cause ambiguity for the implementation of the right to religious freedom must be based on the ruling political atmosphere.
Related to this, although considered creating ambiguity, Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 38 ICCPR, the Human Rights Act, and the Constitution provide restrictions to the provisions of law are necessary to protect the five elements, namely15; 1.
Restriction for the Protection of Public Safety.
Restrictions on freedom to manifest religion in public can be carried out by the government as in religious meetings, religious processions and funerals in order to protect individual freedom (life, integrity, or health) or ownership.
Restriction For The Protection of Public Order.
Restrictions on freedom of religion manifests the purpose of maintaining public order, among other legal entities must register religious organizations community, to get permission for holding rallies, establishing places of worship that was common designation.
Restrictions on exercise of religion for inmates.
2.
Restriction for the Protection of Public Order.
Restrictions on freedom of manifests religion to maintain public order, is exemplified by legal entities must register religious organizations community, to get permission for holding rallies, 15 See Chandra Setiawan, ‘Kebebasan beragama atau Berkeyakinan dan Melaksanakannya ditinjau dari Perspektif HAM’, in Komnas Ham journal, Freedom of religion and belief in Indonesia, establishing places of worship that was common designation.
Restrictions on exercise of religion for inmates.
3.
Restriction for the Protection of Public Health.
Restrictions permissible with regard to public health are intended to provide an opportunity for the government to intervene to prevent epidemics or other diseases.
4.
Restriction for the Protection of Morals.
For the justification of the freedom to manifest religion or belief associated with moral and potentially create controversy.
5.
Restriction For The Protection of The (Fundamental) Rights and Freedom of Others.
a. Proselytism.
With the penalties for acts of proselytism, the government interfere the freedom of someone in manifesting their religion through missionary activities in order to protect the religious freedom of others so as not to be converted.
b.
The government is obliged to restrict manifestations of religion Jakarta, 2006, 6-7.
Also see Arie Wahyudi (2013), above n.14, 4.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 39 or belief that harm the fundamental rights of others, especially the right to life, liberty, physical integrity of violence, personal, marital, property, health, education, equality, prohibits slavery, cruelty and minority rights.
C. State intervention against Freedom of religion and belief According to a report released by the Wahid Institute in 2015, the actor of violations to religious freedom is still dominated by government.
It is not surprising since the trend of government as actor tolerance violations continues to increase year to year.
Interestingly, in the regulations to ensure freedom of religion and belief, ICCPR, the Human Rights Act and the Constitution puts the government as an actor who has obligation to protect, respect and fulfill the constitutional rights of the citizens to freedom of religion and belief.
Many problems related to religious freedom in Indonesia includes three large clusters of interrelated to one another.
First, problems of law; second, the role of state in law enforcement; and third, an 16 M. Amin Abdullah, ‘Kebabasan Beragama atau Berkeyakinan Dalam Perspektif Kemanusiaan Universal, Agama-agama dan Keindonesiaan’, (Paper, presented at the Advanced Training for Lecturers of human rights law and human rights, understanding of nation-states by the society or religions adherers, indigenous people and members of racial or ethnic origin16.
The government failure to protect the rights of its citizens is the government failure in organizing life of the nation and had breaking the promise of the founding fathers.
Meanwhile, one of the state's goals in the opening of UUD 1945 is "to protect the entire Indonesian nation and the entire homeland of Indonesia,....".
Some of the government’s products of law which tend to be discriminatory and lead to intolerance include: 1.
Application of Act No.
1/PNPS/1965 on the Prevention of Abuse and/or blasphemy.
Section 1 of this Act states that religions professed by the nation of Indonesia are Islam, Christian, Protestant, Hindu, Buddhist and Confucius, which subsequently create terms of official and non-official religion.
It is obvious that explanation of Article 1 in does not ban different religions or beliefs as Shinto, Jewish, Taoist, wiwitan Sundanese, Javanese, cumin and other communities.
However, this acts only recognizes six religions.
cooperation Centre for Human Rights Studies, Islamic University of Indonesia and Norwegian Centre For Human Right, Yogyakarta, 8-10 Juni 2011), 16.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 40 The polemic against this regulation is primarily on PNPS/1965 as the main umbrella for other regulations related to religion and belief.
This law is considered to be contradictive to human rights instruments related to Freedom of Religion and Belief.
These contradiction includes17: a.
This law provides space for criminal prosecution against individuals due to their religion or belief.
This is contradictive to multiple human rights instruments in which state's obligation is to respect (no intervention) on religion and beliefs embraced by individuals.
b.
This law limits the major religions in Indonesia to six religious groups: Islam, Protestant, Catholic, Hindu, Buddha and Confucius although it also acknowledges the existence of religions and beliefs in addition to the six main religions.
While human rights instruments recognize the freedom of individuals to profess any religion and belief even not to have a religion (atheist).
c. This law gives privileges to the six recognized religions with the right to receive assistance and protection of the state, while the human rights instruments prohibit discrimination based on religion and belief; and 17 Arief Wahyudi (2013), above n. 14, 10-11.
18 Siti Musdah Mulia (2008), above n.3, 54-55 d. This law is considered to be formally and substantively defects.
The defect is on the main materials such as religious restrictions set on explanations which later becomes the reference determining religious beliefs, while on Indonesia system of law, the explanation is not a legal norms, rather the official interpretation of laws formation.
In addition, this law also raises norm for other laws which is considered unusual in legislation system.
The defect also resulted in a legal battle in the regulation of laws giving rise to legal uncertainty.
On the other hand, human rights instruments require legal certainty in the context of compliance with human rights obligations.
As a derivative of the Act No.
1/PNPS/1965, there are number of laws related to religion with nearly identical spirit, restricting the freedom of the Indonesian population in terms of religion, some of them are;18 a.
Minister of Religious Affairs Instruction No.
4 in 1978 on Policy regarding beliefs.
b.
Minister of Religious Affairs Instruction No.
14, 1978 on Followup instruction of the Minister of Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 41 Religion No.
4 in 1978 on Policy regarding beliefs.
c. Letter of Minister of Religious Affairs to the Governor of IKDH Level I East Java No.
B1/5943178 on Issues Concerning Beliefs.
d. Decree of Attorney General No.
Kep.
089/J.A/9/1978 on Prohibition of Marriage Certificate Issued by Center Foundation of Srati Dharma Yogyakarta e. Letter of the Minister of Home Affair to the Governor of IKDH Level I and the Regent/Mayor throughout Indonesia, no.4771286/1980 on Marriage Registration for believers of God Almighty.
f. Letter of the Attorney General to the Minister of Religious Affairs up.
Director General of Islamic Guidance and Hajj Affairs no.
B-397D.I.1980 regarding marriage between adherents of Sapto Darmo in Bojonegoro Regional Office.
g. Letter of the Minister of Religious Affairs to the Minister of Home Affair no B.VIl / 5996l/1980 regarding Marriage, Identity Cards and the death of the Believers in God Almighty.
h. Decree of the Minister of Home Affairs No.
221a 1975 on Registration of Marriage and Divorce.
i.
Attorney General Decree No.
: KEP108/J.A./5/1984 on the establishment of the Coordinating Team for Monitoring Beliefs in Society.
j. Instruction of the Minister of Religious Affairs No.
4 1978 on Policy Regarding Beliefs.
k. Minister of Religious Affairs Instruction No.
8 of 1979 on Development, Mentoring and Supervision of the organization and beliefs within Islam incompatible with the teachings of Islam.
2.
Act Number 23 of 2006 on Population Administration Enactment of Act No.
23 of 2006 on Population Administration with implementing regulations, ie Government Regulations no.
37 of 2007 on the implementation of Act No.
23 of 2006.
This regulation was intended to guarantee equality of every citizen in obtaining their rights, including that on the beliefs of minorities.
On the other hand, in citizenship documents there are mechanisms of service process and recording in the Population database of all beliefs, however there is still a distinction between "recognized" and "unrecognized" religions.
The provisions of Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 42 Article 8 paragraph (4) stated that implementing agencies implement citizenship Administration with obligation includes specific actions with the "conditions and procedures for Important Event of residents whose religion is not recognized based on the provisions of legislation or for believers based on legislation ".
The phrase about 'non-recognized religion' also appears associated with the religion column in Family Card, who formulating that information concerning religion column for residents whose religion is not recognized as a religion based on the provisions of legislation or for believers is not filled, yet still be served and recorded in citizen database19.
Similarly, documents associated with ID card, information about the religion for residents whose religion is not recognized as a religion based on the provisions of legislation or for believers is not filled, yet still be served and recorded in citizen database.
20 The settings in the government regulation can increase the probability of discrimination and make it difficult for the marriage of believers, for example related to the validity of marriages by recording of believers organizations and leaders.
Article 19 See Article 61 paragraph (2) of Act No.
23 of 2006 on Population Administration 81 Regulation No.
37 of 2007, stated: (i) marriages of believers is performed in the presence of believers leaders (ii) believers leaders is elected by the organization to fill out and sign a marriage; and (iii) believers leaders is registered in the ministry whose field and work are technically foster believers of Against God Almighty organization.
This means that a marriage is valid only if endorsed by believers leaders who has registered organization.
State Liability In Keeping Freedom Of Religion And Belief In Indonesia A. Indonesia Recognizes Sovereignty of God The government as a government administrator has an important role in bringing about peace and inter-religious harmony in society.
As a sovereign state, the government is entitled to regulate and impose limits on certain things, for example the official state religion.
Currently there are six (6) religions officially recognized by the government, namely Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism.
In fact, there are some religions and beliefs professed by the community, particularly customary law 20 See Article 64 paragraph (2) of Act No.
23 of 2006 on Population Administration Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 43 community, which is not officially recognized by the state.
The inability of the government to give recognition to some religions and beliefs resulted in horizontal conflict in the community.
Several other problems also arise due to the lack of recognition of other religions and beliefs, for example related to the religion column in the National Identity Card (KTP), the establishment of religious holidays and alike.
Referring to the concept of sovereignty of God, where the supreme power is considered to be in the hands of God, God is seen as the source of all sources of human power in the world.
God is the one who has the authority to regulate and determine everything that exists in the world, even related to beliefs and religions.
Human is a technical executor of the will of God.
Human, as the executor, not entitled to manage his neighbor including providing regulations on the limits of religion and belief.
The idea is almost the same across religions, such as Hinduism, Judaism, Christianity, and Islam.
These religions have the same experience in dealing with ideas about the power of the state.
God is the one who is first seen as the source of all 21 Jimly Asshiddiqie, Gagasan Kedaulatan Lingkungan: Demokrasi Versus Ekokrasi (online), human power, including in matters of state21.
The practice of nation based on God's Sovereignty theory put their country's leaders as the embodiment or manifestation of God.
History records that the adherents of the theory of sovereignty of God, making the king as a descendant of the gods (in Hinduism), or caliph as a fiduciary of Allah (in Islam), or the pastor and the rabbi as a trustee or messenger of God (according to Christians and Jews).
The impact of this concepts is the inheritance or hereditary between the leaders of the previous king to the next generation.
It is commonly known as Theocracy, where that the power of the state, in principle, come from God are embodied in the person of the king or queen for generations22.
Some countries that use this concept also create restrictions regarding who is eligible to be inducted into the king or leader, for example based on gender (only men were entitled to be a leader) and so on.
Theocracy was initially considered as an ideal concept for a country as it is based on the values of divinity.
In its development, however, there is a shift in meaning.
The shift is influenced by the nature and character of the king or ruler who http://www.jimlyasshiddiqie.com accessed on 14 September 2016 22 ibid Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 44 tend to be greedy and do arbitrarily on the basis of religion.
God, who gives power to the king, is used as legitimation by the king to conduct his desires.
The concept of theocracy lose its adherents when associated with the monarchy, in which there are only certain people are entitled to be a king because of power inherited in the family.
In addition, the rise of secularism that tries to separate religion from life of state also becomes one important factor of waning influence of theocracy and the concept of sovereignty of God.
While in the modern era it is rarely found countries implementing purely the concept of sovereignty of God, the basic idea of the concept of sovereignty of God can also be included in other concept of sovereignty such as People's Sovereignty or Sovereignty of Law.
The power of God Almighty is still recognized, yet its realization in practice is perceived to be incarnated in the beliefs of every sovereign people.
The belief in the omnipotence to God it led to equality in equally sovereign human beings.
Every human being is subject only to God and not to man.
If a person should be subject to other human beings who occupy status as a leader, then 23 ibid 24 The opening of 1945 constitution and articles in 1945 constitution mentioned two notions of divinities, the first is "Belief in Almighty" and the second "Almighty God".
Etymologically, the term "Believe in Almighty" is the equivalent of God's submission can be only acceptable as long as the leaders of precedents in the attitude of obedience to the applicable law, including the provisions of the Almighty23.
In Indonesian context, the concept of the sovereignty of God is still relevantly workable and is associated with the idea of Sovereignty of the People and/or the Sovereignty of Law.
Constitution of 1945 and Pancasila, placing God as a guide to belief, basically provides guarantees to its citizens to freely embrace religion or belief they believe in24.
Belief in God Almighty does not discredit certain religions and beliefs as that phrase could be interpreted as universal, not only religion but also belief.
The idea and the concept of sovereignty of God in the Indonesian constitution should have guarantees and protects all religions and beliefs embraced by the society.
The government should not only recognize particular religions as the state religion.
With the restrictions, the idea of the sovereignty of God becomes unclear and prone to trigger conflict.
As a sovereign and believes in god state, the government should be able to accommodate all the religions and beliefs of society without exception.
sovereignty, or supreme authority in a god, while the term "Almighty God" is very close to understanding godhead in Islam.
See Anwar C, Teori dan Hukum Konstitusi, revised edition, Setara Press, Malang, 89.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 45 In practice there is ambiguity and conflict of conception regulations related to the protection, respect and fulfillment of the rights to freedom of religion and belief in Indonesia.
First, some regulations confirms that the right to religious freedom is a right that cannot be reduced under any circumstances (non-derogable rights), nondiscrimination and state is responsible in the respect, fulfillment and protection.
Second, there are regulations that limit, reduce, and deprive the rights of freedom of religion and belief.
Dimensions of human rights law regulations are universal and nondiscriminating.
However, there is also a conception that dimension of human rights law is particular and discriminatory25.
The second conception dimension of human rights law frequently becomes the cause of conflict in society, lead to confusion in the implementation of human rights and is very prone to arbitrary actions (abuse of power) by the power-holders on the basis of human rights.
The universal and non-discriminatory rules are stated in Act No.
39 of 1999 on Human Rights, Act No.
12 of 2005 on Civil and Political Rights and Act No.
29 of 1999 on the Elimination of All Forms of Racial Discrimination.
While it is not discriminatory, it is open for the 25 M. Syafi’ie, ‘Ambiguitas Hak Kebebasan Beragama di Indonesia dan Posisinya Pasca government to issue a policy that leads to discrimination and intolerance, hence the limitations make its implementation experience ambiguous.
On the other hand, the particular and discriminatory rule is Act No.
1/PNPS/1965 on the Prevention of Religious Abuse and Defamation (request for judicial review of the Act was rejected by the Constitutional Court), the Joint Regulation of the Minister of Religious Affairs and the Minister of Home Affair No.
9 of 2006, No.
8 of 2006 on Guidelines of Regional Head Task/Deputy Head of Maintenance of Religious Harmony, Empowerment of Religious Forum and Construction of Houses of Worship, and the application of Article 156A of the Criminal Code related to blasphemy26.
The refusal of application for judicial review of Law No.
1/PNPS/1965 by the Constitutional Court becomes legal basis related to the legislator’s endeavors to clearly limit the freedom of religion and belief in order to maintain public interest.
B.
Correlation of the State of Law, Democracy and Religious Freedom in Indonesia The Constitution has provided basis that Indonesia is the state of law.
The initial Putusan Mahkamah Konstitusi’, Volume 8, Number 5, October 2011, Jurnal Konstitusi, 701 26 ibid Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 46 concept of the state of law was introduced by Plato and Aristotle.
Plato stated that the state law is a country that is based on the law and uphold the values of justice for its citizens.
Aristotle reinforced the concept with the state main task is to provide opportunity for every individual to live up to the stage of harmony27.
Certainly, harmony in the life of the nation will not be achieved without law and justice as basis that applies to every citizen.
The discourse on the concept of state of law gave birth to the idea that the state of law is a country founded on the rule of law, to ensure justice for every citizen, which aims to achieve harmony of life.
For it is based on the law, the act of organizing organ of state must be based on the applicable law, not arbitrariness or authoritarianism.
The birth of the concept of a state of law implies that the ruler acts are restricted by law, and the law should also guarantee the rights of the people through the principle of people sovereignty.
The State of law based on the constitution is closely associated with the principle of people sovereignty run through a democratic system.
This condition is more evident with the terms of constitutional democracy, the concept of democracy, which is based on the constitution of each country.
Therefore, 27 Abdul Aziz Hakim, Negara Hukum dan Demokrasi di Indonesia.
(Pustaka Pelajar, Yogyakarta, 2011) law will lose their meaning without democracy, while democracy without rule of law will lose direction28.
The existence of the state of law in the absence of democratic system that upholds the values of sovereignty will become a tool to limit the rights of individual citizens.
Similarly, when democracy is allowed to develop in the absence of clear regulations and rules, chaos will occur in the society.
The correlation between the state of law and democracy basically departs from the same background, which is to limit the power of an arbitrary (abuse of power) of the government.
Moreover, the purpose of the state of law and democracy are also still in the relevant corridor, which is to guarantee the rights of each individual, creating tranquility, justice and order in the community.
As the state of law that applies the principles of democracy, Indonesia bases its democracy implementation on three sources.
First, western socialism that defends the principles of humanism, this principle is also perceived as objective.
Second, the teaching of Islam that orders the righteousness of God and justice in society.
Third, the pattern of life in the form of collectivism as contained in the villages of Indonesia.
The three sources will ensure the 28 Ibid, 160 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 47 preservation of democracy in Indonesia that it has strong foundation29.
Democracy is a term loaded with meaning and interpretation.
This terminology is closely related (Linkage) to social system supporting it.
It contains universal elements (common denominator) and contextual content attach to particular social system (cultural relativism)30.
Democracy will not appear, grow and develop itself in the life of society and nation.
It requires real effort of every citizen and supporting devices of wellmaintained culture as a manifestation of mindset and community design.
Democratic governance requires democratic culture to make it exist and upright.
The democratic culture is the community itself.
Interpreting the identity of real democracy, democratic ideals should substantially embodied in aspects of life of a state including politic, social, and economy.
This is consistent with modern democratic political theory popularized by Boron31, where democratic model is divided into four levels: a.
Electoral Democracy At this level, democracy is characterized by regular elections and 29 Mohammad Hatta, Menuju Negara Hukum, (Idayu Press, Jakarta, 1977), 17 30 ibid competition among parties to fight for voters.
This level of democracy ignores the essence of democracy, and merely indicated to put the elected representatives in the top positions of legislative and executive.
b.
Political Democracy This level is slightly more advanced than the first one through the establishment of political regime to a certain degree, able to appear as effective political representation, purely implement power-sharing, improve the mechanism for people's participation through election (referendum) and popular consultation, strengthen the legislature, create special committees to control executive branch, guarantee the people's right to access information, develop public financing for political campaigns, create institutions that can minimize the role of lobby groups and vested interests.
In short, this level can be referred to as a participatory democracy applicable in some parts of Latin America.
c. Social Democracy This level is a combination of elements attached to the two previous 31 Soebagio, Distorsi dalam Transisi Demokrasi di Indonesia, Vol 13, No 2, December 2009, Makara, Sosial Humaniora, 111-119 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 48 democratic levels.
It includes social citizenship, broad guarantees on spectrum of the rights of citizens such as living standards, access to education, housing, and medical care.
d. Economic Democracy The last level is the smoothing of what Lenin called as an economic revolution.
For Lenin, politics is economic concentration.
In Boron’s term, there is no political valued sector than economic.
In this sense, political fight or competition are not merely for politics itself, but to win control over limited economic resources.
Thus, those who control the economy control politics.
This understanding clearly revers the argument of liberal democracy adherents that political territory is separated from that of economy.
Of the four levels, there are some prerequisites to meet to achieve a state of law and the concept of a real democracy.
The pre-requisite is evident from interpretation of the state of law and democracy concepts.
Democracy is explained in two aspects.
First, as a system, democracy is bound by rules (constitution, legislations, and regulations) that have been agreed.
Second, as an ideology, democracy is to create 32 Imam Hidayat, Teori-Teori Politik, (Setara Press, Malang, 2012), 86-87. government by concern the people based on ideology.
In this aspect, a democratic state should respect the values of Human Rights (HAM) including freedom of thought and expression, freedom of the press, association, freedom of speech, freedom to choose a representative, freedom of politics, freedom of religion and so forth32.
Ruslan emphasize the concept of democracy to the fulfillment of human rights to ensure transparency in the system of society, nation and state.
Fulfillment and protection guarantee of human rights is a major importance by the state of law and democracy33.The elaboration of the state of law and democracy leads to a discourse on the realization of the ideals of limited government power (limited government), the prohibition of arbitrary or authoritarian (abus de draitatau willikeur) acts, the moderate of centralized power, abuse of power or authority (detaournament de pouvair or abuse of power) and the guarantee of human rights34.
These ideals will be realized when the government through the institutions of the country comply and obey the existing legal regulations.
Moreover, the society should also take a strategic role to support the ideal of the state of law and democracy through 33 Ibid 34 Ibid.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 49 direct participation of the activities organized by the government.
Seeing the various statutory provisions discriminating indigenous people in exercising the right to freedom of religion and beliefs, the government, as the stakeholder of rights fulfillment has performed arbitrary power.
When this happens, the protection of the citizens, especially minorities, fails.
It also indicates that the implementation democracy based on the state of law has failed run by the government.
The implementation of nation life is only for group/religion of the majority.
Even though the founding father, Soekarno, stated that the first philosophical foundation the proposed to unite all the elements of individuals and groups is the basis of nationality;35 First of all, I need to ask: Do we want to establish Indonesia State for one person, or certain group?
Establish independent Indonesia by name only, yet to glorify one person, to give power to one class of the rich, to give power to aristocratic members?
Do we?
Of course not!
Brothers of nobility and Muslims, all of them have agreed, that is not that kind of country and therefore we have a purpose.
We want to establish a state 35 Yudi Latif, Negara Paripurna “Historitas, Rasionalitas, dan Aktualitas Pancasila”, (Gramedia Pustaka Utama, Jakarta, 2011), 331.
36 Majda El Muhtaj, Hak Asasi Manusia dalam Konstitusi Indonesia, (Prenada Media, Jakarta, 2005) of "all for all" ... .We set up a "National State" of Indonesia.
C. The Government's Role in Ensuring Fulfillment of the Right of Freedom of Religion and Belief Amendment of 1945 Constitution is a historical fact and believed to be the starting point of Indonesian democracy empowerment based on human rights protection 36.
Human rights frequently turns into a double-edged knife which sometimes protects humanitarian aspects of human rights yet is very strong with the hegemony of the policy makers.
Michael Freeman commented on the discrepancy between the concept of human rights with the reality of human rights violations.
He stated; human rights violations are facts than can be, and sometimes are, best expressed in terms of numbers, but there is uneasy relationship between our knowledge of the numbers and our understanding of what they mean.37 This is due to two fundamental causes.
First, lack of understanding in philosophical content of human rights38.
Second, the load of human rights substance is also considered to have bias 37 Michael Freeman, Human Rights: An Interdisciplinary Approach, (Cambridge Polity Press, Cambridge, 2004), 110 38 Ibid.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 50 understanding due to the sharp sociopolitical intrigue that surround39.
One form of mismatches between concept and practice of human rights in Indonesia is related to the existence of indigenous peoples.
The Constitution has guaranteed protection, recognition, and respect for customary law community in Article 18B paragraph (2) and Article 28, first paragraph (3) of the 1945 Constitution.
Moreover, several other provisions also guarantee protection, recognition, and respect for customary law community, such as Article 41 of MPR Decree No.
TAPXVII/MPR/1998, Article 6 of Act No.
39 of 1999 on Human Rights, Regulation of Ministry of Agrarian/Head of National Land Agency Number 5 of 1999 on Communal Land, Regulation of Minister of Home Affairs No.
37 Year 2007 on the Empowerment and Development of customs, habits of Indigenous Peoples and Institutions in the Region.
In addition, the government is still trying to formulate draft of Law of Indigenous People that has been entered in the National Legislation Program since 200440.
Of various juridical basis, textual discussion on the protection, recognition, and respect for customary law community 39 Majda El Muhtaj (2005), above n. 37 40 Saafroedin Bahar and Ruswiati Suryasaputra, Arah Politik Hukum Nasional Terhadap Upaya Perlindungan Hukum Bagi Masyarakat [Hukum is still very low and limited to the clauses in the legislation of certain acts.
Regulations concerning customary law communities are separated in sector in specific legislation.
The majority of the topics raised is with regard to communal land.
While other rights of indigenous people such as the right to freedom of religion and belief has not been accommodated by the government in a special regulation.
The absence of norms regulating religious beliefs constitutionally has violated the rights of indigenous peoples.
For example, Bedouin community in the district of Lebak, Banten, some of whom embraced Sunda Wiwitan religious beliefs.
The religious beliefs should be able to be accommodated by the government.
The government, through several stakeholders, for example forms Regulation or the Joint Decree (SKB) among ministers.
To accommodate religious beliefs, for example, the government may issue a decree between Ministry of Home Affairs and Ministry of Religious Affairs to provide Religious beliefs column on identity cards.
Thus, indigenous people who own particular religious beliefs are not forced to fill it in with religion they do not profess.
The phrase of Religious beliefs increases the number of official religions recognized Adat] Berdasarkan UUD NKRI, Vol 8, Komnas HAM, 2012, Journal of HAM, 14-17 Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 51 by the state without adding more number that comes after the official religions.
This is because religious belief has covered some of new religions which may appear, for example, Jews, Shiah, Ahmadis and so forth.
The logical consequence of this decree is obligation for the Ministry of Religious Affairs to provide facilities for the fulfillment of spiritual service to the Religious Belief.
The addition and the recognition of this new religion is aimed at minimizing conflicts among people due to racial issues and a concrete implementation and enforcement function of the state to guarantee the rights of its citizens without exception.
D. State Liability against Violations of Freedom of Religion and Belief Indonesia has provided assurances of protection, recognition, and respect for customary law community in Article 18B (2) and Article 28, first paragraph (3) of the Constitution of 1945.
Textually, both the legal basis do not mention the form and other types of protection, recognition, and respect for customary law communities.
Therefore, the government is supposed to provide protection, recognition, and respect of the maximum.
Maximum means effort and guarantee of protection, recognition, and respect given by the government is not limited to particular sector, for example, only in terms of their customary rights or customary land and so forth.
One important aspect that also needs to be given a guarantee of protection, recognition, and respect for indigenous people is related to the freedom of diverse and belief.
Interim report released by The Wahid Institute of the dynamics of religious freedom in Indonesia in 2015, indicated that there were approximately 147 cases of intolerance between religious communities, one of which related beliefs held by indigenous peoples.
One of the cases took place in early 2015, April 7 when local religious believers are banned from entering military.
The case happened in Banda Aceh openly violated the Constitution and contrary to the Human Rights (HAM).
Still in 2015, there were several organizations that restrict the activities of believers worship.
One case occurred in Rembang, Central Java.
FUI issued threats to attack Sapta Darma houses of worship.
The condition is certainly contrary to the applicable legal basis related to religious freedom and the rule of law related to the guarantee of protection, recognition, and respect for indigenous people.
There is inconsistency shown by the government written rules and its practices, providing opportunities for people to pursue a lawsuit.
State, as organizer of nation life, in de facto is unable to perform its role in Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 52 guaranteeing religious freedom for indigenous peoples.
On the basis of common interests and reason for creating peace, the government frequently acts arbitrarily and oppresses minorities.
The government inability to guarantee protection, recognition, and respect for indigenous peoples can be used as grounds for a lawsuit using the concept of state accountability.
Furthermore, the central and local governments, as state officials, frequently issue regulations creating discrimination for minorities.
Local Government, particularly, with the concept as widest possible autonomy frequently issue local regulations of Sharia in plural area, or circular on prohibition of activities for seeker or believers.
This can be detrimental to the rights of society.
To balance it, mechanism of liability is necessary to anticipate government policy that is harmful as mechanisms to recover it.
In civil law countries, such as Indonesia, there are some parameters to use as the foundation for liability41: 1.
Acts; 41 See Phillipus M. Hadjon, et.
al, Hukum Administrasi dan Good Governance, (Trisakti Univerity, Jakarta, 2010), 5.
42 Under Indonesian law, Principles of Good Governance spread across various of laws and regulations such as the act No.
5 of 1086 on the State Administrative Court, Act No.
28 of 1999 on the Implementation of the State A free of corruption, collusion and nepotism, Act No.
25 2.
General Principles of law;42 3.
Human Rights; 4.
Good governance;43and 5.
Rationality Qualification in the first parameter to perform a lawsuit against the state in the case of restrictions on freedom of religion and belief has been fulfilled because in Article 18 B (2) and Article 28 I paragraph (3) of the Constitution of 1945, the government has provided a guarantee of protection, recognition, and respect for indigenous peoples.
Likewise with other parameters, Restrictions on religious freedom clearly has violated human rights.
The government action is also not in accordance with the principles of Good Governance; which according to UNDP includes several parameters, namely: a) participation; b) The rule of law; c) Transparency; d) Responsiveness; e) The common interest; f) The equation; g) Effectiveness and efficiency; h) Accountability; and i) strategic vision.
Thus, people can make claim to the state based on these parameters.
State, by looking of 2009 on public services, Act No.
27 of 2008 on Ombudsman, and Act No.
30 of 2014 on government Administration.
43 Implementation of good governance with regard to the implementation of a function to organize activities in the public interest, one of which is to ensure the safety of every person and of society.
See Ibid, 9.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 53 at the facts, should have received the lawsuit and provide compensation or remedy for customary law communities whose rights have been restricted by the government.
The next question is how will the lawsuit filed?
As mentioned previously, there is ambiguity between laws that guarantee religious freedom for citizens.
While the law of "customary law community" has been recognized in the constitution, with prerequisite of "recognition regulated by law", the customary law community who has not obtained the legality from the state cannot defend their constitutional rights.
This will certainly make it difficult for indigenous people to defend their constitutional rights before the law either as an applicant or as a plaintiff.
Government, as obligations stakeholder, should use Pancasila as the foundation of philosophy extracted from culture and local wisdom of diverse ethnicities to become adhesive solidarity community of Indonesian life, in social, economic, and political areas through political union of national law.
Indonesian people are familiar with consensus as the value of local wisdom, relying on the wisdom of communitarian "local wisdom" (togetherness).
The values of wisdom filled with religious belief of Indonesian people should be able to be the driving force for the nation’s progress and prosperity.
The transformation of Pancasila values in public life is expressed by taking into account the dynamic motion of Indonesian people who also face interaction with the world in the current globalization era.
Reflecting on the multiple descriptions of the elaborated case, Indonesian people are actually abundant with many social capitals from different cultures (pluralism and multiculturalism) and religion (Islam as a religion of "majority") has not been able to maximize all the existing potential, particularly against the religion of Islam.
As a doctrine with the biggest social capital, it should bear the heavy and noble burden for transforming the values of prophetic ethics in universal life of the Indonesian nation.
Therefore the values of universal scaled ethics of Islam are able to reach the whole humanity for the benefit of the Indonesian people.
Pancasila as the embodiment of various social capital of culture, religion etc.
should be re-used as paradigmatic guidelines in formulating all national development-oriented policies (law).
As a result, the achievable progress results is in line soul of our nation's culture, Pancasila.
This, of course, should be supported by the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 54 character of the bureaucrats who have the competence to make it a better nation.
IV.
CONCLUSION AND SUGGESTION A.
Conclusion 1.
The constitutional guarantee of religious freedom for indigenous peoples have been arranged in multiple legislation, both nationally and internationally.
However, there are still a lot of discriminations to indigenous people.
While human rights has been guaranteed and cannot be reduced in any form and by anyone, the legislation, in fact, limits the freedom that ultimately led to the ambiguity of the implementation of the guarantee of freedom of religion and belief.
Ironically, the government is the most frequent perpretator in violations of religious freedom through its intervention in laws, local regulations and policies.
2.
The Government has role to guarantee the protection, recognition, and respect for the religious freedom of indigenous peoples.
Efforts that can be made by the Government is to create a new norm regarding Religious Belief.
Religious Belief will serve as an integral tool for religions beyond the six official religions recognized previously by the government.
This provision also provides juridical implications related to supporting facilities for religious belief, such as the availability of choice of religious belief in identity card, the establishment of Religious Belief Guidance by MORA and so on.
B.
Suggestion 1.
The government should be able to accommodate and ensure the fulfillment of the protection, recognition, and respect to religious freedom of indigenous people, through the ratification of the Bill of Indigenous People which also governs the religious freedom of indigenous peoples.
2.
The government should establish an institution or official body that regulates the existence, rights and obligations of indigenous communities, such as the National Commission on Indigenous and Tribal Peoples and alike 3.
Indigenous and tribal peoples should be more open to the development of globalization that their rights and duties as an entity to be recognized and given in balance.
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12 of 2005 on Ratification of the International Covenant on Civil and Political Rights.
The Republic of Indonesia.
Act Number 23 of 2006 on Population Administration.
The Republic of Indonesia.
Act Number 7 of 2012 on Social Conflict Management.
The Republic of Indonesia.
Act Number 30 of 2014 on Governmental Administration.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 58
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.01.01 1 JUDICIAL DECISION AND RETHINKING THE CONSTITUTIONAL PRINCIPLES CONCERNING TREATY MAKING POWER AND PROCESS OF THAILAND Kiarttiphorn Umpai1 1 School of Law, National Institute of Development Administration (NIDA) E-mail: popylaw@hotmail.com Submitted : 27-09-2016 | Accepted: 24-02-2017 ABSTRACT This paper aims to examine the treaty making power and process in recent constitutional provisions reforms in Thailand.
It aims to analyze whether the constitutional provision has affected the treaty-making crisis.
This study relied on the theory of the sovereignty of state exercised by the executive branch in compliance with the treaty making power concept, the separation of powers, and the checks and balances doctrine.
The findings revealed that Thailand’s constitutional amendment related to treaty making processes, proposing a negotiation framework approved by the legislative branch or public participation during a prior negotiation period, is not in compliance with the treaty making concept and state practices of foreign countries.
However, Thailand has already reformed the constitutional provision.
The implications are that there must be an amendment to the Constitution defining the processes and characteristics of treaties that shall be approved by the legislative branch.
Keywords: Treaty making power, law of treaty, negotiation framework, public participation I.
INTRODUCTION Treaty making power principles emerged in the year 1932 with the Constitution of the Kingdom of Thailand B.E.
2475 (1932), now the Constitution of the Kingdom of Thailand (Temporary) B.E.
2557 (2014).
Principally, the King reserves the prerogative to conclude treaty and international agreements, such as peace treaties, armistice treaties, and treaties with foreign countries and international organizations.
This power gives the state sovereignty concerning international affairs and relations.
However, Constitutional power to exercise sovereignty related to treaty making rests not only in the executive branch of government but also rests in the legislative branch, to which the constitution gives sovereignty in terms of check and balances over the treaty making power.
Moreover, the constitution provides the constitutional court power concerning the adjudication of conflicts between the executive and legislative branches over treaty making power and processes.
It is apparent that the exercise of treaty making sovereignty under the checks and Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights balances doctrine 1 results in hindering international relations and treaty making in Thailand in unprecedented ways.
Thailand’s treaty making problems have resulted from a non-clarified constitutional provision with respect to the question of who is privileged with the treaty making power.
At same time, the legislative branch now only preserves “parliamentary participation” 2 in terms of checks and balances and is no longer meant to conclude treaty making alongside the executive branch.
In particular, the legislative branch only preserves power related to essential treaties that impact the national interest.
Before the conclusion of a treaty period, the executive branch has a "duty" to propose a negotiation framework for approval by the legislative branch and it also has a duty to provide information to the public and a public hearing, in compliance with “public participation” rules.
In other words, the new principles in the Constitution seem designed to give something like "control and monitoring" authority to the legislative branch.
The use of such power by the legislative branch, however, is not in accordance with the principles and doctrines of "the separation of powers," "checks and 1M J C Vile's, Constitutionalism and the Separation of Powers: Montesquieu (Liberty Fund, 2nd ed, 1998) [11] <http://oll.libertyfund.org/pages/montesquieu-andthe-separation-of-powers>.
2Luzius Wildhaber, ‘Parliamentary Participation in Treaty-Making, Report on Swiss Law-Europe’ (1991) 67 Chicago-Kent Law Review 437, 439. balances," and "parliamentary participation."
Thus, it can be said that this exercise of power by the legislative branch in the new principles of Thailand’s constitution is contrary to the principles of the law.
Any failure to conclude treaties is caused, therefore, by essential "misunderstandings in principle" related to both the organization and the exercise of each organ of power involved in the process of treaty making, especially the power of the "Administrative Court’s" jurisdiction to monitor the exercise of executive power in "international agreements."
Under "constitutional authority," treaties are called an “act of the government" and treaty making power is not, therefore, viewed as a “legal authority” but is instead called an "administrative act” and is under the jurisdiction of law enforcement or other laws and regulations.
This, oversight of this power is under the jurisdiction of the Administrative Court.
In the Joint Communiqué on Preah Vihear case3, the constitutional court widely interpreted this power by adding the word “may” related to treaties that change the territory of the Kingdom of Thailand, but the 3Joint Communiqué on Preah Vihear Case [The Constitutional Court of Thailand] No.
6-7/2551, 8 July 2008 reported in [2008] 125 (108A) The Royal Gazette of Thailand 21-22.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 3 constitutional provision no longer specifies this word.
The decision of the Constitutional Court can impact treaty making by the executive branch.
Thus, it is not clear what kind of treaties or international agreements need to be approved by the legislature.
Therefore, the executive branch always submits treaties and international agreements to Parliament for approval before concluding them in order to disperse the political responsibility of the executive branch.
As noted above, the research question for this paper raised the two following issues.
First, what factors in Thailand’s constitution related to treaty making powers and processes impact the international relations process?
Second, how should Thailand’s constitution be reformed in compliance the doctrines of the separation of powers and checks and balances as well as the Vienna convention?
Therefore, this paper will examine the treaty making power and process conflict between the Executive and Legislature and analyze the extent to which the rules and the judicial decisions have impacted, or may impact, the separation of powers and checks and balances doctrines.
Part I will provide overviews of the treaty making power concept and theory, the functions of the constitutional organ, and the separation of powers.
Part II will examine the existing principles of treaty making process for states which are in compliance with the Vienna Convention on the Law of Treaties.
Part III will study the state practices of the USA and France in relation to treaty making power and processes and provide a comparison of such features on their legal and practical grounds.
Part IV will discuss the treaty making power problem and crisis of Thailand.
Finally, Part IV will rethink and re-envision Thailand’s treaty making power and process.
II.
LEGAL MATERIALS AND METHODS This paper lies on several relevant international conventions and relevant domestic laws concerning treaty making power.
It uses Vienna Convention on the Law of Treaties 1969 and relevant customary international law relating to the making of international treaties.
It further analyses Thailand’s Constitution as well as other relevant domestic laws.
This paper uses a normative juridical method, including reviewing and analyzing the treaty making power and process of the Vienna Convention on the Law of Treaties and the constitutional provisions of Thailand.
The relevant treaty making power concepts, separation of powers, and check and balances doctrines are analyzed.
The approach in this paper is statute-based and Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights comparative.
It also tries to discover whether there is a conflict of power between the judicial branch, the constitutional and administrative courts, and the executive and legislative branches regarding treaty processes.
III.
RESULT AND DISCUSSION Judicial Review And Treaty Making Crisis: Organ, Power And Process Since the topic examined here concerns the treaty making crisis of Thailand, it is necessary to rethink and reenvision the constitutional principles related to, firstly, treaty making power theory; secondly, international law and treaty making power; thirdly, treaty making power and processes among the USA, France and Thailand; fourthly, the adjudicated problem of exercising treaty-making power in Thailand; and, lastly, remaining problems to the reform of the treaty-making process and power principles in Thailand.
Treaty Making Power It is appropriate to begin with an examination of the nature of the treaty making power concept and theory.
This 4Charles S Clancy, ‘An Organic Conception of the Treaty-Making Power vs. State Rights as Applicable to the United States’ (1908) 7 (1) Michigan Law Review 19, 34 <http://www.jstor.org/stable/1274085>; Arun Panuphong, Diplomacy and International Affairs concept is also described as the mechanism of exercise of sovereignty in terms of cooperation among state parties through international relationships and agreements.
An evident instrument for this aim, the purpose of a treaty is to express clearly the legally binding agreements that emerge from concluding an international agreement.
At the same time, the treaty making power concept generally involves the exercise of the authority of executive branches in international relations.
This concept emerged from analyzing the function of the constitutional organ in compliance with domestic and international law.
Principally, the exercise of this power, including restricted power, must be performed in compliance with the Constitution of each state.4 There is no doubt of the international role in the conduct of the international relations of the government on behalf of the state5 through a state representative.
It can be said that this is the exercise the state jurisdiction under the “Principle-Agent (Faculty of Political Sciences, Thammasart University Press, 1986) 4.
5United Nations, Treaty Handbook (United Nations Publication, 2012) 3.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 5 Theory” 6 or “Mandate Theory”, 7 which is related to administrative power held by the executive branch in international relations.
Moreover, historical data have supported the concept that state practice in international relations are constituted by an envoy on behalf of the monarchy serving as a sign that shows the relationship between the countries.
In the treaty making power concept under international law, however, this power is no longer run by the state, 8 since each state has given consent to be bound by international agreements.
This study also found that the substantive features 9 of the separation of powers are explained best as a function of the constitutional organ,10 which defines the role and authority of the organ overseeing treaty making power rather than the formal separation of powers.
Therefore, the allocation of such power must consider the extent to which such powers are characteristic of "political power" or "legal 6Laurence R Helfer and Timothy Meyer, The Evolution of Codification: A Principal-Agent Theory of the International Law Commission’s Influence (5 May 2015) Duke University, School of Law 1, 4-5 <http:// scholarship.law.duke.edu/cgi/viewcontent.cgi?article =6134&context=faculty_scholarship>.
7Prasit Eakkabutra, International Law Volume I: Treaty (Winyuchon, 4th ed, 2008) 101.
8The Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force on 27 January 1980) preamble, art 6 and art 7.
(‘Law of Treaties Convention’) 9Pornson Leangboonlertchai, Rule of Law Development: German and France (19 March 2014) power”.
11 This is important, in part, because the power that is exercised by a political or a legal authority can affect consideration of the “liability of the state", especially of whether that power involves a "political responsibility" or a "constitutional responsibility", 12 as in the case of an impeachment.
However, treaties are not a legal responsibility with supreme authority held by the Judicial Branch or the Supreme, Administrative or Constitutional Courts.
Vienna Convention On The Law Of Treaty The principles of the Vienna Convention of 1969 affirm that the Executive shall have the power and duties to exercise sovereignty in relation to making treaties.
The International Commission of the United Nations has established a concept for drafting conventions that aim to conclude in mutual agreement between parties.
13 Public Law Net 1 <http://www.publaw.net/publaw/view.aspx?id=1639>.
10Theodore Georgopoulos, The Checks and Balances Doctrine in Member States as A Rule of EC Law: The Cases of France and Germany in EUSA 8th International Conference, 27-29 March 2003, Nashville Tennessee 3 <http://aei.pitt.edu/6493/1/001523_1.PDF>.
11W J Stankiewicz, Aspects of Political Theory: Classical Concepts in an Age of Relativism (Cassell and Collier Macmillan, 1976) 69-70.
12Pornson Leangboonlertchai, Problems on Politician Impeachment (19 March 2014) Public Law Net 1-2 <http://www.publaw.net/publaw/view.aspx?id=1438>.
13Helfer and Meyer, above n 8, 1.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights Hence, the regime of international law was set up specifically for the purpose of outlining treaty making procedures, including how to conclude treaties, the completeness and the incompleteness of treaty making, and exclusive rights for establishing and annulling treaties.
Most importantly, International law shall not intervene in matters defined under the domestic law, such as which organs under the Constitution have the power to make treaties.
This research yielded two conclusions: 1) international law affirms that the Executive shall have the authorities and duties to exercise the power of sovereignty in relation to making treaties because it affirms that the states have the power to make treaties because it determines only the procedures but does not indicate which organ under the Constitution shall have such power; and 2) the representative of the State must hold the title of Executive or be elected based on the exercise of the Executive’s power.
Further, international law affirms that the State has the power to make treaties,14 but it does not affirm that the government, on behalf the Executive, shall have the sovereign power to conclude a treaty.
The 14Law of Treaties Convention art 6; Alina Kaczorowska, Public International Law (Routledge, 4th ed, 2010) 176.
15Pasit Eakkaburtra, International Law Volume II: State (Winyuchon, 2nd ed, 2011) 13-14.
State itself, under international law, is entitled to be considered abstract and nonphysical juristic person.
15 Moreover, any action of the State shall be accomplished concretely and legitimately by a variety of state authorities or representatives as provided by law.
As a result, exercising the State’s sovereign power in relation to treaty king shall not be accomplished unless the government action is done because, in the context of the international law, the government shall have the right to conclude treaties on behalf the State.16 However, the 1969 Vienna Convention does not stipulate specifically that the government’s so-called Executive Branch is the key organ having treaty-making power.
The study found that when the issue was raised during the discussion agenda on drafting the Convention of Vienna in 1968, most argued that the government’s power may be expressed in mixed States, including Union, Federal State and Political SubDivisions.
Last but not least, the Assembly accepted that any independent state that adopted the Convention shall have power to make treaties, which is not a power exclusively provided by the Constitution or domestic law.
Some States may restrict treaty-making powers 17 to the central 16Jaturon Tirawat, International Law (Winyuchon, 3rd ed, 2012) 212.
17Helmut Steinberger, Constitutional Subdivisions of States or Unions and their Capacity to Conclude Treaties Comments on Art.
5 Para.
2 of the ILC’s 1966 Draft Articles on the Law of Treaties (MaxBrawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 7 government of a Federation,18 for example, while others may provide that each State or administration shall have the power to make treaties on only some matters.19 Finally, the Assembly voted to remove the capability of each State to conclude international agreements when each State could not specify clearly using a few words its treaty making powers and practices, meaning that “the government” and not “the state” shall have the power to make treaties.
For multi-state nations, this provokes ambiguity over whether the power of making international agreements shall belong to the central government or to each state’s government, which is another reason it is stipulated that only the State, conceived as “the government”, shall have the power to conclude treaties, not another organ under domestic law.
20 Notwithstanding, subject to the provisions of the Vienna Convention, in terms of Full Power, the Convention designates a person or persons as state representative to conclude treaties.
People with Full Power 21 and people making treaties ex-officio include President of the State, the Head of the government, or even Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, 1967) 411, 418 <http://www.zaoerv.de/27_1967/27_1967_3_c_41 1_428.pdf>.
18United Nations, United Nations Conference on the Law of Treaties, First session Vienna, 26 March – 24 May 1968, Official Records, Summary Records the Minister of Foreign Affairs.
Not only may the legal status of a person with either ex-officio or full powers have been bestowed without power of attorney, but these persons also, in accordance with their domestic laws, take on the role, power, and duties of the Executive.
These persons are not given the power to make laws or to decide on legal problems.
This study has shown that although international law does not stipulate that the Executive shall have the power to conclude treaties, under the principles of international law, only the Executive has the power to conclude international treaties and agreements.
A Comparative Study On Treaty Making The central issue of this study is that the Executive is the key organ that exercises the sovereignty to make international treaties whereas the Legislative is a secondary organ that exercises power to participate at some stages in the treaty-making process.
of the Plenary Meetings and of the Meetings of the Committee of the Whole (United Nations, 1969) 60 <http://legal.un.org/diplomaticconferences/lawoftr eaties-1969/vol/english/1st_sess.pdf>.
19Ibid 64; Steinberger, above n 19, 420.
20United Nations, above n 20, 68-69.
21Law of Treaties Convention art 7.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights A.
Key Organ Exercising TreatyMaking Power The reason why the author of this study would like to draw attention to a comparative study between the USA and France is that the provisions of Thailand’s Constitution in the context of treaty making were drafted, initially, to be similar to those of France.
Further, Thailand has maintained a dual-court system comprising the Court of Justice and the Administrative Court.
In addition, there are similarities between Thailand and the USA with respect to Legislature’s participation in proposing a treaty negotiation framework for prior approval by the Legislature itself.
In the context of this study, it could be said that the treaty-making practices of the USA, 22 the Republic of France 23 and Thailand tend in the same direction: these are in the hands of the Executive (called the president, or the government), which is considered the key organ exercising sovereignty to make treaties with other States or international organizations.
24 22 International Legal Research Tutorial, U.S. Treaties and Agreements-The Process, (28 August 2014) Duke Law [2] <https://law.duke.edu/ilrt/treaties_3.htm>; Amos S Hershey, ‘Treaty-Making Power with Special Reference to the United States’ (1926) 1 (5) Indiana Law Journal 261, 262 <http://www.repository.law.indiana.edu/ilj/vol1/iss 5/2>.
23Amos S Hershey, ‘Treaty-Making Power with Special Reference to the United States’ (1926) 1 Indiana Law Journal 261, 262.
Similarly, these three countries all have the power to conclude treaties of different forms in accordance with their constitutional provisions, but these provisions vary in procedures and processes.
For example, in the United States, as a result of political evolution and necessity, 25 the president is responsible for formally concluding two forms of international agreements: treaties and executive agreements.
26 It is presumed that the conclusion of formal treaties shall be accomplished upon at least a two-thirds vote of the Senate.
For this reason, the executive in the United States has developed alternate forms of international agreement that do not have to meet this requirement.
Unlike in Thailand or France, an “executive agreement” can be carried out regardless of prior approval of the Senate.
Notwithstanding, with consideration to the “forms” of general treaty-making powers, there are not differences, as each country’s laws conform to the general principle providing that the “treaty-making power is in the hands of the Executive”.
In 24Jantajira Aimayura, et al, Check and Balance Mechanism to Executive Branch Power on Free Trade Negotiation (Thailand Research Fund, 2006) 12-13.
25United States Senate, ‘Executive Agreement’ Treaties (20 August 2013) [1] <http://www.senate.gov/artandhistory/history/com mon/briefing/Treaties.htm>.
26Manit Jumpa and Pornson Leangboonlertchai, United States Constitution: The Explanations on the Principles and Case Law (Winyuchon, 2009) 98.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 9 other words, the Executive has the final power of making treaties regardless of the Legislature’s participation in the initial process.
B.
Secondary Organ Exercising Specific Power of Approval It is generally recognized that the power of the US Senate, the French General Assembly, or even the Parliament of Thailand are not different in principle.
The Legislature of these three countries has only the power and duties to give approval before expressing consent to be bound by the executive and to ratify their accession, approval or acceptance.
The US Senate gives approval for making all types of treaties whereas Thailand and the Republic of France’s Legislature are each responsible for approval of some forms of treaty, especially treaties of importance that may affect national security and interests.
These treaties, for example, relate to the nation’s territory, trade, finances, or agreements modifying provisions that have the status of statutory law,27 for example.
Different forms of treaty have arisen from the fact that Thailand and the French Republic are not 27Gerald L Neuman, ‘The Brakes that Failed: Constitutional Restriction of International Agreements in France’ (2012) 45 Cornell International Law Journal 257, 260 <http://scholarship.law.cornell.edu/cilj/vol45/iss2/ 1>; Pierre M Eisemanm and Paphaële Rivier, ‘France’ in Nation Treaty Law and Practice, similar with respect to society, politics or economy, especially in matters that originated from the country’s necessity and social and political contexts.
Nevertheless, difficulty has arisen with regard to making treaties in Thailand.
Subject to the country’s constitutional provisions, it seems that all forms of treaty should be approved by the Parliament, like in the USA.28 However, there is a tendency to interpret some enacted matters of the constitution, including treaties broadly affecting the durability of the economy and society and treaties significantly involving the national investment and budget.
In such interpretations, all categories of treaty that affect broadly the society or significantly bring about commitment to the national budget have a direct and indirect impact on social and budgetary aspects of the country.
Overall, the tendency of courts has been to interpret the true definition of “significantly” or “broadly” according to the spirit of the constitution.
Though Thailand’s constitution provides that the National Assembly’s approval shall be required for concluding some categories of treaty, those words in the constitution’s provisions Duncan B Hollis et al (eds.)
(Martinus Nijhoff Publishers, 2005) 253, 259.
28รัฐธรรมนู แห่งราชอาณาจักรไทย พทุธศักราช ๒๕๕๐[Constitution of The Kingdom of Thailand B.E.
2550 (2007)] § 190 cl 2.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights suggest that all treaties shall be made on the condition that the Senate gives prior approval, as in the USA.
According to this study’s examination of the legislative branch’s involvement in making of treaties, the author has found that the legislative branch in France has less treaty-making power and duties than in Thailand and the USA, 29 especially in the context of inspection of the exercise of the treaty-making power of the executive branch.
It could be said that in the matter of concluding “international commitments”, 30 the French Parliament has little role, and its power is restricted to approve and disapprove, not to modify, the provisions thereof.
Meanwhile, the US Senate used to have a considerable role in participating in initial processes, which included setting up the objectives and negotiation framework of the treaty as well as approving the Executive’s negotiation framework.
This form of power may cause difficulty in making treaties, however, and this sophisticated process led to the US President 29New Zealand Law Commission, The Treaty Making Process Reform and the Role of Parliament, Report 45: Appendix A: France (December 1997) [A43] <http://www.nzlii.org/nz/other/nzlc/report/R45/>.
30La Constitution du 4 octobre 1958 [French Constitution of 4 October 1958] art 53.
31The Congressional Research Service (CRS), Library of Congress, United States of Congress, Treaties and Other International Agreements: The Role of the United States Senate (United States Government Printing Office, 2001) 4-5.
32United States Constitution art II § 2 cl 2; Ibid 6. having the exclusive power to conclude an executive agreement––“congressional executive agreements, agreements pursuant to treaties and Presidential or sole executive agreements” 31––, which is not considered a treaty statutorily and, thus, does not require the advice and consent of two thirds of the Senate.32 The problems and practices in the USA are similar to those coming to Thailand soon.
The executive branch is committed to drafting a negotiation framework and submitting it to the Legislature for approval.
Moreover, the executive must provide for the constitutional principle of “the people’s participation” and “direct democracy”.
In accordance with the constitution, the Executive, thus, declares a negotiation framework to the people for a “public hearing” 33 before a treaty negotiation is conducted.34 This principle is an important cause of inconvenience and obstruction that has arisen in treaty making now in Thailand.
The procedure under domestic law is significant because it has a consequence for the constitutionality of treaties.
33รัฐธรรมนู แห่งราชอาณาจักรไทย พทุธศักราช ๒๕๕๐[Constitution of The Kingdom of Thailand B.E.
2550 (2007)] § 190 cl 3.
34Benjamin Sukanjanajtee, Promoting ASEAN Economic Community through Greater Participation and Transparency in Treaty Making Procedures: Thailand’s Internal Process and ASEAN Rules of Procedure, Embracing the New Role of ALA after the ASEAN Charter, 11th General Assembly 2012, 14-19 February 2012, ASEAN Law Association 8 <http://www.aseanlawassociation.org/11GAdocs/w orkshop4-thai.pdf>.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 11 Nevertheless, on the basis of international law, the procedures or incompleteness of such domestic laws do not have an effect on international relations and obligations.35 More importantly, it has been questioned why the US constitution provides that all categories of treaty will be made upon the Senate’s approval and not the entire Legislature’s.
Traditionally, the Senate is entitled representatives from each state; thus, when the Federation of States make any treaties that may cause commitments that fall to another state, it is provided that the state’s representatives shall play a partial role in in initial processes, which includes setting the objectives and negotiation framework as well as reviewing the framework for advising on and consent to the negotiation framework.
This principle is enacted in the US constitution in conformity with the “Agent Theory” 36 on treaty-making power.
Given the nation’s history, the US constitution provides that the Senate shall be involved in and informed of the initial processes of making treaties and that each state’s representative shall be competent on this matter as citizen.
The Senate’s role in relation to treaty making seems to be that of an assistant to the President on behalf of the 35Law of Treaties Convention art 27, art 46.
36Helfer and Meyer, above n 8, 4-5.
37 Francois Luchaire, ‘The Participation of Parliament in the Elaboration and Application of TreatiesFederation of States.
In contrast, the French Parliament, as the nation’s legislative branch, shall not have powers other than those of certifying, by enactment as an Act, the President’s ratification, affirming the view of Professor Luchaire.37 However, the exercise of power in Thailand’s Legislature is not that of an assistant of the executive branch of government responsible for concluding the international relationship and agreement, like in the US Senate, but it uses its power for inspection of and control over the exercise of executive power.
C. Which Organ Having Power to Rule on the Conflict between the Key and Secondary Organ In the context of organs having the power to rule on any dispute in relation to the conclusion of treaties, the regulatory practices exercised by the USA, Thailand, and France and are dissimilar.
In other words, the determination of practices is made on the basis of their own features and domestic law contexts.
The Republic of France established a “political organ” having the power to rule on any dispute in relation to treaty making.
This organ is not given legal status as a judicial Europe’ (1991) 67 (2) Chicago-Kent Law Review 341, 358 <http://scholarship.kentlaw.iit.edu/cklawreview/vo l67/iss2/4>.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights organ but was established and provided its power and duties under the Constitution on the basis of the origin and power of “political power”, namely the “Constitutional Council”.
There is “a composition” of members originally made up in judicial and political contexts, such as President of the Republic, former senators, former representatives, etc.38 Significantly, in term of exercising power to rule on any legal dispute in relation to the conclusion and enforcement of treaties, the organ having trial and adjudication power shall be set up specifically for ruling on the “constitutionality of international commitment”.
These are sometimes called, by public law scholars, 39 “engagements interna-tionaux.” “International Commitments” that have not been enforced on the Republic of France shall belong to the jurisdiction of the Constitutional Council.40 As a result, the Council is a key organ, one with constitutional power to oversee the 38La Constitution du 4 octobre 1958 [French Constitution of 4 October 1958] art 56; Ministry of Justice, The French Legal System: Judicial System (Ministère de la Justice, 2012) 3-7 <http://www.justice.gouv.fr/publication/french_leg al_system.pdf>.
39Nantawat Boramanant, The France Constitutional Court: Part 2 (20 December 2004) Public Law Net 34 <http://www.publaw.net/publaw/view.aspx?id=176#m15>.
40Noelle Lenoir, ‘Constitutional Council and the European Convention of Human Right: The French Paradox’ in Judicial Review in International Perspective (Kluwer Law International, 2000) 145, 162.
41E Lauterpacht and C J Greenwood (eds.
), 98 International Law Reports (Research Center for International Law, University of Cambridge, 1994) 180. constitutional review of the executive’s exercise of treaty making power.
41 On the other hand, “treaties” previously enforced shall be taken into the Conseil d’Etat’s––or the Supreme Administrative Court’s––consideration whenever the executive branch’s exercise of power must conform to the doctrine of the “legitimacy of treaties”––that is to say, whenever they exercise rule by means of “political power” or “legal power.42 In the USA, the organ having the power to rule on treaties is the “Supreme Court” of the United States, 43 which exercises judicial and legal power but not political power in form of a judicial organ because the US legal system is not a “dualcourt system”––with a Court of Justice and an Administrative Court––like Thailand 44 and France.
45 As regards the exercise of treaty-making power, the US Constitution provides that the Supreme Court of the 42La Constitution du 4 octobre 1958 [French Constitution of 4 October 1958] art 55; René Chapus, Droit administratif general Tome 1 (Montchrestien, 14 édtion, 2000) 137 cited in Banjerd Singkanati et al, The Reviewing Constitutionality of Law, Which Impact to Human Rights (Constitutional Study Institute, Thailand Constitutional Court, 2009) 185.
43United States Constitution art VI § 2.
44รัฐธรรมนู แห่งราชอาณาจักรไทย พทุธศักราช ๒๕๕๐[Constitution of The Kingdom of Thailand B.E.
2550 (2007)] § 199.
45 French Ministry of Foreign Affairs, The French Justice System (June 2007) Embassy of France in Washington, D.C 2 <http://ambafranceus.org/IMG/pdf/Justice_ag.pdf>.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 13 Federation shall have an exclusive power to rule on a treaty-making dispute.46 As a result of the difference in their legal systems and the different origins of the judicial functions in the USA and France, their practices surrounding the adjudication in the matter of treaty making are not similar.
In Thailand, it is provided that the function and power of adjudicating any dispute arising from the exercise of the Legislative’s and the Executive’s power shall be within the Constitutional Court’s jurisdiction.47 Most importantly, in practice, the Administrative Court has tried and adjudicated a case in relation to the conclusion of a treaty accomplished by the Executive branch, which did not conform to the constitutional provision.
48 The Administrative Court’s decision on this matter led to widespread academic and political criticism of the legality of the judiciary.
The question is whether the Administrative Court intervened in the Executive’s legal function in the dimension of international relations.49 In brief, the duties of an organ having the power to rule on a treaty-making dispute 46United States Constitution art III § 2.
47รัฐธรรมนู แห่งราชอาณาจักรไทย พทุธศักราช ๒๕๕๐[Constitution of The Kingdom of Thailand B.E.
2550 (2007)] § 190 cl 6.
48รัฐธรรมนู แห่งราชอาณาจักรไทย พทุธศักราช ๒๕๕๐[Constitution of The Kingdom of Thailand B.E.
2550 (2007)] § 223 cl 2. is based on the political context of each country, and these developments informed their various domestic laws.
Adjudicated Problem Of Exercising Treaty-Making Power In Thailand According to the findings of this study, problems caused by the judicial organs’ decisions can be separated into three groups: first, ambiguity in the context of categories of treaty in principle and submitting processes for the Legislature’s approval; second, the problem of enforcement and interpretation of constitutional provisions; and third, with respect to the courts’ jurisdictions, whether any treaty-making dispute should be submitted to the Administrative Court.
A. Ambiguity in the Context of Categories of Treaty in Principle and Submitting Process for the Secondary Organ’s Approval The constitutional principles related to treaty-making bring about different interpretations.
The constitutional provisions use some words that have led to 49Vorajet Pakeerath, Act of Government and the Supreme Administrative Court Order No.
547/2551(Preah Vihear Temple [Prasat Phra Wihan]) (5 October 2008) Public Law Net 3-4 <http://www.pub-law.net/publaw /view.aspx?id=1292>.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights different interpretations, especially treaties affecting “economic and social stability broadly” or even treaties resulting in “significant” binding effects upon the trade, investment and budget of the country.
50 Therefore, by virtue of the spirit of the constitution, it should be indicated how many types of treaty and what the characteristics of each treaty type are.
In connection with this, the author studied explanation and discussion documents written by the Drafting Commission of the Constitution of the Kingdom of Thailand 2007 (B.E.
2550); yet, there was no evidence showing that the ideas discussed and exchanged on the meanings of key words in the Constitution.
51 The Commission expressed some concern about the true definitions of each word because some words led to the possibility of different interpretations.
The commission did not clarify their exact meanings.
Further, the constitutional provisions made treaties of the legislative branch irrelevant to the concept of treaty-making power, which, in practice, is in the Executive’s hand.
Subject to the Constitution, the Legislature has so much dominance over Thailand’s treaty making 50รัฐธรรมนู แห่งราชอาณาจักรไทย พทุธศักราช ๒๕๕๐[Constitution of The Kingdom of Thailand B.E.
2550 (2007)] § 190 cl 2.
51Office of the Representative of Thailand, Meeting Report of Drafting Constitution of the Kingdom of Thailand Committee No.
33/2550 (24 June 2007) 9092 procedure and negotiation power that the Executive was affected as a result of Legislative intervention.
This does not comply with the concept of “parliamentary participation” in matters of the negotiation framework submitted to the Legislature for approval and the public dissemination required for a public hearing on such a framework, which, in theory, must be accomplished before the Executive’s treaty making with other countries.
This practice does not conform to the exercise of the Executive’s power and causes the inefficiency of its treaty making.
For example, Bilateral Investment Treaties (BITs) with more than 54 countries52 are still suspended in the process of negotiation.
This delay is caused by a complicated treaty making procedure that includes submitting the negotiation framework and reporting it to the National Assembly, especially in case of international treaties, as stipulated in the Constitution.
Submission of a negotiation framework to the National Assembly seems to take a long time.
Recently, there was delay at the conclusion of international agreements with ASEAN-Korea Free Trade Area (FTA), <http://library2.parliament.go.th/giventake/content_ meeting/062550.html>.
52International Economic Department, Ministry Foreign Affairs of Thailand, The Information on Promotion and Protection Investment Treaties (15 August 2016) <http://www.mfa.go.th/business/th/cooperation/13 4>.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 15 ASEAN-Japan FTA, ASEAN-India, and ASEAN-Australia-New Zealand FTA.
53 While the Cabinet approved these treaties, the new constitutional principles provide a more complicated process.
In particular, the National Assembly’s approval is required.
Meanwhile, other ASEAN countries have the power to conclude the above-mentioned agreements and have enforced them without trouble since 2007 (B.E.
2550), followed by Thailand two years later (in 2009).
This reveals that the enforcement of agreements in Thailand has been slower than in other ASEAN Countries.54 B.
Problem on Enforcement and Interpretation of Constitutional Provisions.
Compounding the ambiguity of the treaty-making principle, there have been some questions about the Constitutional Court’s rulings in cases of disputes involving the exercise of the treaty-making power.
In 1999, for example, in a case involving a letter of intent sent to the IMF requesting academic and financial support, the Constitutional Court ruled that this 53Department of Foreign Trade, Ministry of Commerce of Thailand, ‘Taxation Utilization from FTA’ (2011) 1 (1) Trade Reference Journal 1, 8-21 <http://fta.dft.go.th/LinkClick.aspx?fileticket=ofj HFTyfRX0%3D&tabid=92&mid= 446>.
54Duanden Nikomborirak, et al, The Study the Impact of Article 190 of the Constitution of the Kingdom of Thailand B.E.
2550 on Treaty Making related to agreement signed with IMF was not in the nature of a treaty on the grounds that the letter of intent did not include two concepts based on international law concerning unilateral action.
When a government cannot abide by the commitments provided in its letter of intent, the Court concluded, there shall not be any state responsibility arising therefrom.
The other decision involved the absence of subjectivity 55 as shown in the letter of intent because neither the Thai government nor the IMF had the intention to create binding effects because of this action.
This ruling is considered case law now and shall be followed subsequently.
Notwithstanding, in 2000, when Thailand agreed to ratify and implement the Convention of Biological Diversity (CBD), a case was filed in the Constitutional Court for adjudication.
The Court ruled that this convention had the consequence of creating a change of state jurisdiction in a “substantive” context considered to belong to the exercise of sovereignty of the Executive.
The Court also affirmed that such treaty making shall not only lead to state jurisdiction change of “maritime territory” but also be taken into the Legislature’s Trade and Investment in Thailand (National Research Council of Thailand, 2009) 5-10, 5-11.
55Prasit Pivawatanapanich, Treaty Making Problems of the Constitution of Thailand B.E.
2550 (30 September 2015) Faculty of Law, Thammasart University 14-17 <http://law.tu.ac.th/files/news/2555/Agust/322_pr asit.pdf >.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights consideration for approval.
Evidently, this problem has arisen from a wide interpretation that does not conform to the spirit of the constitution stating that treaties on “geographical change” in relation to maritime territory, such as exclusive economic zones and continental shelves, shall be under Thailand’s sovereign right and state jurisdiction.
The Constitution does not emphasis state jurisdictional changes, however, originating from the exercise of sovereignty, including law enactment and enforcement as well as case trials and adjudication.
Another incident seems important is the case of the Japan-Thailand Economic Partnership Agreement (JTEPA), which was filed with the Administrative Court.
It needed to be decided whether a case in relation to treaties should be within the Administrative Court’s jurisdictional competence.
The decision on this matter laid down new case law.
No disputes arising from making treaties are within the Administrative Court’s jurisdictional competence.
Pursuant to the Supreme Administrative Court’s order, it is provided that the exercise of the Cabinet’s power “involved in the National 56Vorajet Pakeerath, Act of Government and Order of Central Administrative Court of Thailand (13 August 2015) Public Law Net 1-2 <http://www.publaw.net/publaw/view.aspx?id=1264>.
57Amorn Juntarasomboon, Order No.
984/2551 of Central Administrative Court of Thailand Correct or Assembly”, or the legislature branch, for the purpose of “international relations”, or the exercise of the administrative power of the Cabinet, as constitutional organ, is provided by the Constitution, not on behalf of a State official.
The signing of such an agreement involved the use of executive power in international relations.
Consequently, such treaty-making power was not within the jurisdiction of the Administrative Court.56 Nevertheless, the Administrative Court’s 2008 order does not comply with the 2007 order against JTAPA.
As regards the signing of the Joint Communiqué between Thailand and Cambodia regarding the bid to have the Preah Vihear ruins listed as a World Heritage Site, the Administrative Court held that the Minister of Foreign Affairs and the Cabinet’s signing of the treaty was carried out on behalf of the Thai government as a “State Official” in connection with foreign affairs.
This involved the use of administration power in general, which is within the Administrative Court’s jurisdiction in accordance with the Act on the Establishment of the Administrative Court and the Administrative Court Procedure B.E.
2542 (1999).
Thus, such an act by the government shall be deemed an “administrative act” 57 carried out by State Not?
(Temporary Protective Measures from Suitcase for Revoking the Joint Communique between Thailand and Cambodia as Register the Preah Vihear as World Heritage Site) (10 November 2015) Administrative Court of Thailand 24 <http://www.admincourt.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 17 officials falling under the jurisdictional competence of the Administrative Court.
The Administrative Court’s decision on this matter led to economic and political criticism stating that it did not comply with law previously lain down by the court itself in the case of the Administrative Court’s fair trial and adjudication against JTEPA related to the use of the executive power on treaty making.
The Joint Communiqué in question was filed with the Constitutional Court, which gave the ruling on the grounds that it was related to a treaty that “may provide for a change” in the Thai territory and “may lead to a vast impact on economic and social stability of the country”.
58 Thus, the National Assembly must approve the Joint Communiqué as provided by the Constitution.
The Constitutional Court’s ruling brought about widespread criticism, especially because the Court added the word “may” to its interpretation of the original provision of the Constitution.
This word, in go.th/attach/news_attach/2008/08/Article20080807.pd f>.
58Joint Communiqué on Preah Vihear Case [The Constitutional Court of Thailand] No.
6-7/2551, 8 July 2008 reported in [2008] 125 (108A) The Royal Gazette of Thailand 23-25.
59Pivawatanapanich, above n 55, 18.
60International Monetary Fund (IMF) Case [The Constitutional Court of Thailand] No.11/2542, 25 May 1999 reported in [1999] 116 (63A) The Royal Gazette of Thailand 9-10.
61Convention of Biological Diversity (CBD) Case [The Constitutional Court of Thailand] No.33/2543, 5 October 2000 reported in [2001] 118, (68A) The Royal Gazette of Thailand 82-84. fact, is not provided in the Constitution because a legislation function is not provided to the judiciary.
Jurists call this type of act “judicial legislation.”59 It is obvious that the Administrative and Constitutional Court’s rulings on various treaty disputes are not provided on similar grounds because some shall be in compliance with the constitutional provisions while others shall not.
This was shown in the Constitutional Court’s ruling in the case of a letter of intent requesting academic and financial support from the IMF (International Monetary Fund)60 and the Convention of Biological Diversity (CBD), 61 as well as the Administrative Court’s decision against JTEPA62 along with the Joint Communiqué between Thailand and Cambodia to have Preah Vihear listed as a World Heritage Site, which Cambodia made by means of a unilateral act.63 62Japan-Thailand Economic Partnership Agreement (JTEPA) Case [The Supreme Administrative Court of Thailand] No.
178/2550, 30 March 2007 reported in The Administrative Court of Thailand 11 <http://www.admincourt.go.th/admincourt/upload/ admCase/Document/judgement/PDF/2550/01013500193-2F-500330-0000042684.pdf>.
63Joint Communiqué on Preah Vihear Case [The Supreme Administrative Court of Thailand] No.
547/2551, 8 September 2008 reported in The Administrative Court of Thailand 23-24 <http://www.admincourt.go.th/admincourt/upload/ admCase/Document/judgement/PDF/2551/010 13510530-2F-510908-0000055648.pdf>.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights Both courts’ rulings64 on these matters have been criticized widely with respect to the Judiciary’s stability and creditability in relation to the sovereign power of the Executive.
This led to trouble and confusion surrounding the exercise of treaty making sovereignty in Thailand.
Recent comparative studies show that the practice and the Constitution of the Republic of France stipulate that the “Constitutional Council” shall adjudicate and try any disputes arising from the concluding of treaties based on “political power” as provided by the Constitution.
When there is a problem regarding the “constitutionality of international commitments”,65 the matter in question must be decided “in the process of treaty making.” Also, when a treaty comes into force and there is a question regarding the “legality of international obligations”, like the enforcement of laws enacted as a consequence of international agreements, it shall be within the Conseil d’ Etat’s or Supreme Administrative Court’s function of trial and adjudication on the grounds that the problem has arisen from “legal power”.
The author realizes that the Constitutions of Thailand and France specify similar principle legislation and similar dualcourt systems.
Thus, as provided by the 64Joint Communiqué on Preah Vihear Case above n 58, 23.
French Constitution, the exercise of power of the Constitutional organs should be implemented to lay down functions and principles that will be enforced in Thai Judiciary trials and adjudications of cases in relation to treaty making.
C. Problem Arisen from the Courts’ Jurisdiction: Should the Matter of Treaty Making Fall within the Administrative Court’s?
It is generally known that the United States has a single-court system, unlike France and Thailand, which have dual-court systems.
In the US, the federal court exercises jurisdiction over questions of the exercise of either the political or legal power of the executive branch.
Meanwhile, in Thailand and France, the exercise of political power shall only be inspected and reviewed when the use of power in question is one belonging to the executive or legislative branch, especially in cases involving the exercise of power of the Executive in connection with determining the administration policies that shall be checked and controlled by political process of the Parliament.
This type of power is conferred directly to the Legislature with “political 65La Constitution du 4 octobre 1958 [French Constitution of 4 October 1958] art 54; Luchaire, above n 39, 351.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 19 accountability”66 that must fall within “the Constitution” and not within Administrative Law.67 On the other hand, the Judicial Branch only has the power to rule on disputes involving the legality of case law.
68 For cases involving the exercise of the legal power of other organs, the balance of power as well as the use of sovereignty must be consistent with “the principle of checks and balances”, which is also under the jurisdiction of the Judicial Branch.
In addition, use of the “legal power” of the Executive over “acts and subordinate legislation” falls within the purview of the Judiciary.
On the contrary, the use of “political power” by the Executive constitutes the use of “constitutional power”.
For example, in principle, the initiation of international relations shall not fall within the authority of the judicial power69 unless the case involves constitutional principles and provisions, as required for the balance of political power.70 There remains, however, the important question of how the problem of the Administrative Court’s jurisdiction over the exercise of political power provided for in 66 Borvornsak Uvanno, Legal Science Analyzing on the Central Administrative Court Order Related to Protective Measures for Temporary Relief in Joint Communiqué between the Thailand and Cambodia (30 September 2015) King Prajadhipok's Institute 3-4 <http://kpi.ac.th/media/pdf/M10_71.pdf>.
67Ibid 3; Pakeerath, above n 56, 2. the Thai Constitution should be resolved.
In the case of the Joint Communiqué submitted to the Central Administrative Court, the Administrative Court does not have conferred power to rule on “the constitutionality” of the treaty making of the Executive even though the Foreign Affairs Minister is of a “State official”.
This is because, in making treaties, the minister is considered “ex officio”, as provided by the 1969 Vienna Convention, or is considered a “State representative” under the Constitution (i.e., not under other laws or regulations).
This principle is consistent with the Constitution of the France Republic and the Supreme Administrative Court’s Order in 2007 in the case of JATAPA.
Most importantly, the issue that needs to be reconsidered is what principle should be explained in cases of the Administrative Court’s decision on the Executive’s exercise of political power to make treaties.
If the Administrative Court were competent to control and check the Executive’s functioning,71 would this lead to difficulties making treaties for the Executive Branch in the future.
72 In the opinion of the author, whether the Administrative Court will be 68Pornson Leangboonlertchai, ‘US Constitution and Limitation Power of the Federal Court’ (2553) 1 (1) ABAC Law Journal 60-61.
69Ibid, p. 60.
70Uwanno, above n 66, 4.
71Ibid 5.
72Pakeerath, above n 56, 3.
Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights conferred legitimate power to rule on such actions depends on the constitutional legislators’ intention.
Control over the exercise of political power in relation to international agreements conferred to the Administrative Court should be restricted and modified by the enactment of the principles and functions of the constitution as well as the exercise of power of the Administrative Court.
Nevertheless, the question remains, “What legal concept and theory shall be applied by the constitutional drafting legislator to confer jurisdictional competence to the Administrative Court in the matters of dispute arising from international treaty making?” Reform Of Treaty-Making Power And Process Principle In Thailand And Remaining Problems Since the Constitutional Court’s ruling in the Joint Communiqué case––which stated that the Court had jurisdiction over any treaty or international agreement that “may” provide for a change in Thai territory––led to uncertainty in terms of treaty-making powers and the types of treaties that the National Assembly must approve, the 2007 drafting of a constitutional amendment under Prime Minister Yingluck Shinnawat’s government was proposed.
As noted above, the Court’s ruling brought about widespread criticism.
Thus, the constitutional drafting committee proposed that the word “explicitly” be inserted in place of “may”.
However, the new treatymaking process delete an emphasis on the legislative’s power of submitting and approving all negotiation frameworks that, in principle, are laid down in the Executive’s power; further, all of these frameworks are required to be heard by means of public participation.
While legislative members protested this concept, the draft constitution was consistent with international practices as well as legal requirements for the Executive’s treaty making.
Nonetheless, this draft of the Constitution was denied on the grounds that its modification process had not been subject to existing Constitutional provisions.
Indeed, one of the reasons the draft constitution is void is the political interest game that surrounded it.
In 2014, General Prayut Chan-o-cha staged a military coup against the government and assumed control of the country under concepts provided by the interim 2014 constitution (B.E.2557).
The new constitution is now being elaborated.
The interim constitution did not elaborate the power of the Executive in terms of submission of a treaty negotiation framework for the Legislature’s approval, nor any terms of public participation.
Under irregular circumstances, “the National Legislative Assembly shall act as the House of Representatives, the Senate, and the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 21 National Assembly,”73 which are normally elected by people.
In the interim constitution, there are only five categories of treaty which shall be approved by the legislature, including treaties significantly involving trade and investment.
Notably, however, the word “significantly” is still used, allowing more Judicial interpretation of what types of treaties are involved “significantly” in trade and investment.
This amendment, thus, cannot meet with success.
Meanwhile, the draft constitution prepared by the Constitutional Drafting Committee, headed by Professor Dr. Bovornsak Uvanno, has failed to get approval again.
This draft constitution contained the same principles for treaty-making processes, with no amendment.
Mostly, principles and core contents in this draft charter were unchanged compared to the 2007 Constitution (B.E.
2550); this is especially important in matters of submission of treaty negotiation frameworks for the legislature’s approval and public participation in negotiation processes being run by the executive.
The above principle is contrary to the concept that treaty-making power belongs to the executive.
While the author recognizes the value of the constitutional principles underscoring legislative and public 73รัฐธรรมนู แห่งราชอาณาจักรไทย (ฉบับชัวคราว) พทุธศักราช ๒๕๕๗ [Constitution of The Kingdom of Thailand (Interim) B.E.
2557 (2014)] § 6 cl 2. participation, he must recognize, also, that the role of the legislative and public branches will be expressed only “after the negotiation complete”, most likely leading to the legislature’s approval and the treaty’s ratification.
Such a process emerges from the balance of legislative power over treaty making.
Fortunately for Thailand, the proposal for this reformed treaty-making principle has been rejected twice.
There was another attempt to reform Thailand’s treaty-making power when the second Constitution Drafting Committee was nominated by the government and headed by Mr. Meechai Ruchuphan.
Recently, the new Constitution charter, drafted by Mr. Meechai Ruchuphan, was approved by the majority of Thai voters through the referendum vote.
The core principles and elements of this charter are still similar to those of the currently-enforced Interim Constitution of 2013 (B.E.
2557).
Meanwhile, and even more problematically, this revised constitution stipulates that the executive shall not be responsible for proposing a treaty negotiation framework for the legislature’s approval, and significant public participation in this process is not provided.
Nevertheless, this draft constitution was finally approved by Thai voters and sent to be reviewed for the Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights elaboration of its facts.
According to the author, the treaty-making principle and process should be reformed on the grounds that determining the type of a given treaty leads to various interpretations: there are between five and eight types of treaty, and many detailed provisions will need to be written to prevent a wrong interpretation.
Particularly, imperative time should be provided in case a treaty submitted to the legislature is not completed and approved by the legislature within sixty days.
74 Such a treaty shall be deemed approved based on legal presumptions, subject to the Constitution’s provisions.
That principle seems to remove delays and difficulties in making treaties, but the question remains why, under a checks and balances system, the Constitution does not assume that the treaty should be considered rejected if it is not approved by the legislature within sixty days.
This means of checks and balances results in efficiency.
However, in case a treaty concerns the national interest, there is no reason why the legislature so much more delays on the process of approval than provided.
Also, the majority of National Assembly members are composed of government members; thus determining these legal assumptions causes loss of opportunity and efficiency of the 74 ร่างรัฐธรรมนู แห่งราชอาณาจักรไทย ฉบับที ๒ [2nd Drafting the Constitution of The Kingdom of Thailand B.E.
2559 (2016)] § 178 cl 2. legislative’ check and balance on the exercising executive’s power.
It is doubtful whether these legal assumptions will facilitate the Executive’s power in making treaties that risk losses to the country’s interests, or even to some stakeholders.
When there is a conflict between the executive and legislative branch in relation to treaty making, the draft constitution stipulates that the executive or government shall only have the authority to submit it to the Constitutional Court for trial and adjudication regardless of legislative participation.
This provision cuts down the legislature’s role in oversight.
If the Executive disagrees and does not submit the conflict case to the Constitutional Court, the legislature shall not exercise its Constitutional power to check the legitimacy of the executive’s exercise of political power.
In brief, although the treaty-making process has been amended, difficult conditions on this matter remain in Thailand.
IV.
CONCLUSION AND SUGGESTION Despite several reforms of the Constitution, the treaty-making crisis and its related problems has remain, especially the problem of unconformity to concepts indicating that the treaty making power belongs to the Executive while exercise of Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights 23 executive power must depend on the Legislature’s role under the concept of “checks and balances”.
There has been a problem of how to maintain checks and balances in connection with treaty making.
Likewise, all treaty categories should be determined clearly and there should be a thorough correcting or removing of modifying words such as “significantly” or “widely, which can bring about various and incorrect interpretations.
This analysis suggests five approaches to addressing this crisis: 1) amending the constitutional provisions to indicate clearly how many categories of treaty there are and what each category of treaty is without the use of modifying words that can lead to various interpretations; 2) enacting subordinating laws following the categories of treaty and treatymaking process, especially those involving concrete public participation; 3) amending the provisions of the Constitution under the title “Legal Assumptions” by removing the phrase “the treaty shall be approved” and inserting “the treaty shall not be approved” instead, in case the legislature cannot complete the consideration within sixty days since the current such provisions are contrary to the principle of checks and balances required by a parliamentary system; 4 ) amending the constitutional provision by stipulating that Parliament shall have the authority to submit to the Constitutional Court a dispute between the legislative and the executive in relation to the exercise of treaty-making power, as provided by the principles of separation of powers and checks and balances; and 5 ) amending the provisions to determine clearly the jurisdictions of the Administrative Court and the Constitutional Court in cases of any dispute arising from treaty making to make them more similar to the Constitution of the Republic of France by stipulating that the Constitutional Court shall have the jurisdiction to adjudicate and try “the constitutionality” of “international commitments”, which shall not be enforced on Thailand until the Constitutional treaty-making process is complete.
Any such action should fall within “the Constitutional Court’s” jurisdiction, which is of the core judicial organs exercising “constitutional power” to oversee any dispute arising from Constitutional Review of the Exercise Treaty Making Power between the Executive and the Legislature.
Notwithstanding, any review of the “legality” of treaties which “come into force throughout the Kingdom” should be provided to fall within the Supreme Administrative Court’s jurisdiction to determine whether the exercise of the Executive’s power conforms to the principle of “the legality of treaties”.
V. ACKNOWLEDGEMENT This article is part of legal research title on “Sovereignty and Organization Brawijaya Law Journal Vol.4 No.1 2017 Constitutional Issues and Indigenous Rights concerning International Agreement under Domestic and International Law” supported by School of Law, National Institute of Development Administration of Thailand.
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Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 161 RADICALIZATION IN THE TEACHING RELIGION AND ITS RELATIONS WITH CRIMINAL ACTS OF TERRORISM Hoiruddin Hasibuan 1 , Sudarsono 2 , I Nyoman Nurjaya 3 , Bambang Sugiri 4 1 Doctoral of Legal Science Program, Faculty of Law, Brawijaya University 2 Law Faculty, Brawijaya University 3 Law Faculty, Brawijaya University 4 Law Faculty, Brawijaya University Email: hoiruddinhasibuan@gmail.com Submitted: 2017-04-07 | Accepted: 2017-07-12 ABSTRACT The criminal act of terrorism is a crime against humanity, human civilization and constitute a serious threat to the integrity and sovereignty of a nation.
In fact, terrorism can be a threat to a state security and sovereignty as well as world peace.
It is argued that one of the main causes of criminal acts of terrorism is radicalization.
Thus, this paper seeks to analyze the casual link between radicalization and terrorism.
This paper determines to what extent does the radicalization affected the criminal acts of terrorism.
This research uses a juridical normative method by analyzing legal instruments relating to terrorism and seeks to analyze the reason behind the provided rules.
This paper submitted that while radicalization affected terrorism, de-radicalization is urgent in responding to terrorism.
This paper also proposes how de-radicalization works in preventing terrorism.
Keywords: Terrorism, Religious Radicalization, Indonesia I.
INTRODUCTION The common thread between radicalization and terrorism became increasingly apparent after the WTC tragedy.
The world brought in the global fight against terrorism led by the United States.
The September 11 attack that claimed by American as the terror act by Al Qaeda militants carried out by changing the political map of the world and the international perception of the terminology or definitions of terrorism and radicalism.
The President of the United States at the time, George W. Bush called a global war against terrorism around the world.
Post the terror attacks, President Bush declared that the country is in a state of war with terrorists and promised to made laws in order to "fight something far beyond conventional criminality" that are specific to the fight against crimes that are far different from conventional crime 1 .
Additional reaction to the terrorist attacks on 11 September 2001 also came from the UN Security Council (acting on Chapter VII of the UN Charter) 1 Whittaker, D, J, The promised legislation emerged in the form of Act for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (The USA PATRIOT Act), 193.
DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.02 mailto:hoiruddinhasibuan@gmail.com 162 by publishing a resolution requesting states to improve the prevention and control of terrorism, including preventing their safe place (save havens) for those who finance, plan, and assist terrorism 2 .
From the perspective of criminology as explained, the reaction of the state against violation of the law must be hung on the causes of the violation of the law (criminal etiology).
Therefore, only by understanding the root causes that gave rise to the phenomenon of terrorism, states can react appropriately to the treatment efforts 3 .
Further, as the author‟s deepening analysis to unravel the common thread between terrorism and radicalism in the literature, the author found the factors that affect the occurrence of terrorism, which are, among others: lack of social welfare 4 , widespread poverty 5 , education 6 , demography (the structure and dynamics of the population as a factor criminogenic ), the weakness of state‟s power range, the failure of democracy, lack of access to political 2 UNSC Res.
1368, 12 Sept. 2001, UN Doc.
S/Res/1368 (2001) and UNSC Res 1373, 28 Sept. 2001, UN Doc/Res/1373 (2001).
3 Wulandari, Widati '”Public Emergency” sebagai alasan mengeyampingkan kewajiban negara dibawah ICCPR : Reaksi Terhadap Terorisme‟, (2013), I, 1, Jurnal Hukum Internasional, 27.
4 Burgoon,B, „On Welfare and Terror : Social Welfare Policies and Political – Economic Roots of Terroris‟, (2006) 50 2 The Journal of Conflict Resolution, 176 – 203.
5 Gurr, T, R, “Economic Factors”, in Richardson, L, ed, The Roots of Terrorism, (New York : Routledge, 2006), 85 – 99.
6 Krueger, A, B, and Maleckova, J, „Education, Poverty and Terrorism : Is there a Causal Connection ?‟ , (2003) 17 4 Journal of Economic Perpectives, 119 – 144. policy, as well as radicalism or fundamentalism.
7 Indeed, until now, experts still disagree about how dominant a factor in the emergence of terrorism.
But one thing which has been agreed upon is that terrorism tends to arise when countries and communities experiencing a radical social-political transition.
8 The authors has made above that according to the literature, one of the causes of terrorism is fundamentalism, or in other terms called radicalism.
The impact of September 11, 2001 tragedy then gives a negative stigma to one of the great religion that exist in this world.
Whether coincidence or not, due to the WTC attackers who are Muslim, it then causes this religion to also be given a negative stigma, at least by most western countries as the religion of terrorists 9 .
Yet is it true that a specific extraordinary crime (in this case, the acts of terrorism), which cannot be justified by any reason, is fully monopolized by fundamentalism or radicalism teachings of a particular religion?
The author, in that regard as well, departing from the study of the etiology of crime, will examine briefly the problems that they had been caused by the emergence of terrorism on the teachings 7 Juergensmeyer, M, “Religion as a Cause of Terrorism”, in Richardson,(2006) above n.5, 133 – 143 8 Wulandari, Widati (2013) above n.3 28.
9 Trump, D, Islam dan Teroris, (02 July 2016), <http://www.detik.com> Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 163 ofvarious religions.
Because only with this approach, I believe we can assess and sort that religious radicalism is not necessarily synonymous with terrorism even though both have a relationship of mutual influence.
II.
LEGAL MATERIALS AND METHODS The type of this research is a normative legal research, which uses a constitutional approach in the form of a study juridical normative study which then attempted to pull the legal principles in the formulation of norms that will become a reference / input in the preparation of the legislation draft on Combating Criminal Acts of Terrorism, by ascertaining the philosophical, juridical, and sociological facts through a literature study that examines through the study materials in the form of legislation and the results of the research, the results of the assessment, as well as other references as the primary data and secondary data.
While the methods that being used in the writing of this study is a normative legal writing 10 , that is a way of writing based on an analysis of some of the principles of law 10 This normative legal research is a daily activity for a scholar of law study, indeed, a normative research on law is only capable to be conducted by a scholar on law study, as an individu that educated to understand and comprehend law study.
As suggested by C.F.G Sunaryati Hartono, Penelitian Hukum di Indonesia pada Akhir Abad ke-20, (Bandung: Penerbit Alumni, cetakan ke-2, 2006), 139. and legal theory and legislation that appropriate and are associated with the problems in this study.
This normative legal research is a procedure and how scientific research is conducted to find out the truth based on scientific legal logic from normative terms 11 .
In addition to a normative legal research methods, to complete the proof of the accuracy of the data and for the sake of de-radicalization program, the authors also used a qualitative approach.
According to Creswell, qualitative research is research that produce and process the nature of descriptive data, such as the transcription of interviews, field notes, questionnaires, pictures, photographs, videotapes, and others.
In the dissertation, it was done an indepth interviews with participants who were former terrorism convicts to collect relevant and valid data on the implementation of deradicalization conducted by Badan Nasional Penanggulangan Terrorisme (BNPT) or the National Counter-Terrorism Agency in tackling terrorism in Indonesia, so the next step that be done in-depth analysis and improvement of the implementation of deradicalization of the National Counterterrorism Agency (BNPT).
11 Johnny Ibrahim, Teori dan Metodologi Penelitian Hukum Normatif, (Malang: Bayu Media Publishing, 2006), 57.
164 III.
RESULTS AND DISCUSSIONS 1.
What is Radicalism and Fundamentalism?
Radicalism is a view that wants to do a fundamental change in accordance with the interpretation of espoused ideology or social reality.
Radical changes can be done not only in a peaceful persuasive way but also with physical violence or symbolic violence.
At the end, radicalism tends to be synonymous with violence even to the suicide for the meaningfulness of life which he believed 12 .
As if judging from linguistic, radical comes from the word radix or radical that means root 13 .
So it can be said that a person could be a radical in any caseradically because could be interpreted as rooted, very deep, or appreciate the particular teachings or doctrines.
However, radical is not only in the carrying out of the context of a particular religious teachings or doctrines, but can also be on other things outside of the teachings or doctrines such as the genre of arts, music, or painting.
The important thing here is someone who has radical symptom is almost the same or very similar to those with addiction.
As someone who is addicted to things like cigarettes, gaming, and many more will do anything to satisfy the desire of 12 Gelose, Petrus Reinhard, Deradikalisasi Terorisme : Humanis, Soul Approach, dan Menyentuh Akar Rumput, (Jakarta : Yayasan Pengembangan Kajian Ilmu Kepolisian, 2009), 38.
13 Bill, Lillian, Black Law English Dictionary, (Michigan Press : UCLA 1988), 367 the addiction, a radical also will do anything to run something he believes 14 .
Johan Galtung tried to conceptualize the kind of radicalism into three forms, namely cultural radicalism, structural radicalism, and direct radicalism.
Cultural radicalism is a radicalism that legitimizes the structural radicalism and direct radicalism.
Direct radicalism (violence-asaction) itself is interpreted as a radicalism that looks directly in the form of events or actions, making it easy to identify the kind of radicalism.
While the structural radicalism (violence-as-structure) is defined as the systematic exploitation of radicalism that is shaped with a mechanism that block the formation of consciousness, as well as inhibiting the presence of institutions that could oppose the exploitation and oppression.
15 The structural radicalism which posed by Johan Galtung was basically provides an understanding, that radicalism can be done by anyone and under any circumstances, whether the state, communities, specific groups, or even individuals can become perpetrators of radicalism.
However, the country still seen by John Galtung as having great potential to eliminate the right of its citizens to realize themselves in the political field.
14 Toshiro, Yuma, „Addict and Radix, Radical : Are Same?‟, (2003) Jurnal Psikologi, 62.
15 Galtung, Johan, „Violence, Peace and Peace Research‟, (1969), 6 3 Journal of Peace Research, 170-171.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 165 2.
What is Terrorism?
In a various acts of violence which are categorized as the act of terrorism, both in domestic and foreign, it appears that what happened actually is ordinary crimes.
The perpetrators (whatever his motivation) is basically guilty of commonly recognized as murder or death threats, violence and threats of violence, assault, bombing or the use of explosives, destruction, or even a bank robbery or just plain theft.
What exactly makes ordinary crimes be different and thus be qualified in the category of a criminal act of terrorism?
16 .
To answer this question can be referenced to how international crime formulated.
In the statute of the International Criminal Court 17 , crimes of genocide, war crimes, and crimes against humanity are also includedas murder or violence that committed with the specific purpose of destruction of part or all members of a particular group (racial, national, ethnic, or religious).
On war crimes, the ordinary similar crimesshould be proved that has been done in terms of their situations of armed conflict (international or internal) and constitutes a serious violation of humanitarian law set forth in the Geneva Conventions of 1949.
Meanwhile, to qualify as crimes against humanity, a number of other elements must be proven.
The first is 16 Wulandari, Widati, (2013), above n. 3, 22.
17 International Criminal Court (ICC) was established by Rome Statute 1998 that the culprit is a state or a stateorganizations; second, that the act was directed against a civilian population; and third, the act is part of an attack whose characteristic is widespread and systematic.
In other words, the evil nature of acts qualified as an international crime is special and can not be equated with evil nature of ordinary crimes 18 .
It also said that the crime is considered the most serious crimes of concern to the international community as a whole 19 .
That's also why the offense is set up specifically as an international crime in the Statute of the International Criminal Court.
Likewise with terrorism,the crime of terrorism is basically referring to the usual crime acts committed in a particular context and led to the belief that the state reactions must also be specific.
It is indicated on the international instruments to criminalize a wide form of terrorism since 1970s 20 , such 18 Schabas, W, Introduction to the International Criminal Court, 2 nd , (Cambridge : Cambridge, University Press, 2004), 36 – 66.
19 Triffterer, O, Commentary on the Rome Statute of The International Criminal Court, 2 nd , (Beck oHG : Verlag C.H., 2004), 16.
20 Tokyo Convention on Offences and Certain Others Acts Committed on Board Aircraft (1963), Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970), Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971), Protocol for the Suppression of Unlawful Act of Violence at Airports Serving International Civil Aviation (1988), Convention of the Prevention and Punishment of Crimes Against Internationally Protect Persons (1973), International Convention Against the Taking of Hostages (1979), Convention on the Physical Protection on Nuclear Material (1980), Convention for the Suppression of Unlawful Acts Against the Safety of Maritime 166 as aircraft hijacking, kidnapping hostage of people certain people, and so on.
The acts are allegedly specific(political) objectives.
The background of certain motivations, as well as defines the action or an act of terrorism, also distinguishes it from ordinary crime.
In general, terrorism is defined as "the use of violence or threat of violence againstcivilian population, to achieve a political goal" or "any actions to threaten or intimidate the civilian population to influence the policy of the government" or "the act of creating and exploiting the fear of civilians through violence or threats of violence to achieve political change " 21 .
Thus, it seems clear that their "political motivation" is the most important element is the context or background to do theterrorismaction.
This motivation in the last analysis is aimed to overthrow the legitimate government or simply force the government to change or drive the direction of political policy.
Such understanding is in line with the text of Article 2 Draft Text of the Convention International Terrorism which Navigation (1988), Protocol for the Suppression of Unlawful Act Against the Safety of Fixed Platforms Located on the Continental Shelf (1988), Convention on the Marking Plastic Explosive for the Purpose of Identification (1991), European Convention on the Suppression of Terrorism (1977), Council Framework Decision of 13 June 2002 on Combating Terrorism, Intern American Convention Against Terrorism (2002), The Arab Convention for the Suppression of Terrorism (1998), Convention of the Organization of the Islamic Conference on Combating International Terrorism (1999).
21 Goodwin, J, „A Theory of Categorical Terrorism‟, (2006) 844 Social Forces, 2027 – 2046 was prepared by the Counter Terrorism Committee 22 .
In the design of such provision, terrorism is defined as a criminal offense committed by a person (any person commits an offense), by any means, unlawfully (unlawfully) and deliberately (intentionally) and said, 'inter alia' death or serious bodily injury to any person ... when the purpose of the conduct, by it's nature or context, is to intimidate a population, or compel a Government or an international organization to do or abstain from doing any act. '
The approach can also be found in the U.S. Code.
Terrorism in this U.S. Code is defined as "premeditated, politically motivated violence, perpetrated against non combatant targets by sub national groups or clandestine agents, usually intended to influence an audience."
23 Implicitly stated that the main victims of terrorism acts (whose background was political) is the civil society (non combatants) and directed, usually (meaning not necessarily) to influence a group of people (not necessarily state / government).
There is no mention here of any separatism actions that often use terror as a way to pressure the government.
Slightly different is the understanding of the definition of terrorism in Indonesia.
In the Government Regulation in Lieu of Law No.
1 year 2002 on the Eradication of Terrorism which has been set into an act 22 Counter Terrorism Committee was wstablished by UN SC Resolution 1373 (2001) 23 U.S. Code, title 22, sec 265 f (d) Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 167 through Law No.
15 year 2003, terrorism is defined as an act "... that deliberately use violence or threat of violence, creating an atmosphere of terror or fear of the widespread or cause the victim that is massive, by robbing the independence or loss of life or property of others, or cause damage or destruction of vital strategic objects or environment or public facilities or international facilities ".
Terrorism provisions in the above legislation is also extended to any actionsthat include planning and other preparatory actions undertaken in the context of terrorism.
What is noteworthy here is the exclusion of interest or political motivation or will to influence government‟s policy as the elements of crime.
Within the provisions of Article 5 decree above, it mentiones that "The criminal acts of terrorism are stipulated in the Government Regulation in Lieu of Laws which is excluded from political crimes, crimes related to political crimes, criminal acts with political motives, and criminal offenses with political objectives, which inhibit the process of extradition.
"It appears that the makers of the legislation explicitly intend to separate political nuanced crimes (subversion, insurrection, or separatism) from criminal acts of terrorism by removing the element of political motivation behind the terrorism actionson the formulation of the offense of terrorism.
24 24 Wulandari, Widati, 2013, above n. 3, 24.
It appears also that the release of the political motivation of the formulation of the offense of terrorism was motivated by pragmatic interests, namely that the perpetrator (suspect, defendant, or convict) of terrorism remains can be requested or extradited to another country and not obstructed general prohibition in the (legal) extradition, which is not to hand over fugitives of political criminal suspect 25 .
Other legal consequence is that the Prosecution does not have to prove the element of intent to achieve the political or ideological objectives.
It does not need to be revealed in court.
The actions of terrorism which have occurred in Indonesia, usually have a purpose or a particular political background or at least done as a form of resistance (protest) against government‟s policies or to force the government to do something.
Even according Djelantik in this context, it is implicitly distinguishes terrorism based on the presence or absence of political motivation.
He stated that political terrorism is a phenomenon that is an extension of political opposition, which is a product of a long process of delegitimation against public order or the existing regime 26 .
25 See Article 3 Model Treaty on Extradition (Adopted by General Assembly resolution) 45/116, subsequently amended by General Assembly resolution 52/88).
Also see Article 5 Paragraph (1) Law No.
01 Year 1979 on Extradition.
26 Djelantik, S, “Terorisme : Tinjuan Psiko – Politis, Peran Media, Kemiskinan, dan Keamanan Nasional, (Jakarta : Yayasan Pustaka Obor Indonesia, 2011), 4 – 6.; See also Djelantik, S, 168 Based on this, we could conclude that there are a number of elements that distinguish terrorism from conventional criminal offense.
The most important distinguishing element is that (1) the effect or intention to put fear in the community (indiscriminately); (2) through violence or threat of violence (manifested in a variety of form of crime; and (3) performed to achieve certain political goals (influence government‟s policy in public order).
Such a conclusion also appears when we look at the historical development of the terrorismactions.
From this point of view,it can be distinguished some waves as well as the type or motive of terrorist movements in the world.
According to Rapoport, there are four waves of terror with a different motive, namely: anarchism, national liberation, social revolution, and religious transcendence 27 .
From this perspective it is clear that a terrorist act is aimed at the ruling government, with or without the intention to overthrow or replace it.
Political motivation, thus, even if confirmed in Indonesian National Laws that it is not an element of the crime of terrorism and cannot be separated from the terrorist actions.
The chosen way might be very cruel, inhuman, Terrorism in Indonesia : The Emergence of West Javanese Terrorist, East – West Centre Paper No.
22, 2006, available on http://www.eastwestcenter.org/fileadmin/stored/pdf s/IGSCwp022.pdf 27 Rapoport, D, in Weinberg, L & Eubank, W, „An End to the Fourth Wave of Terrorism ?‟, (2010) Vol.
33 No.
7 Studies in Conflict & Terrorism, 594 – 602. and clearly against the state laws, but often with specific purposes.
In this case,the purposes of terror is as a mean to achieve political or ideological objectives from another viewpoint that is believed by many actors.
3.
Teachings of Religions Has Potential -to be Usedas the Tool of Radicalization The author has to sort out and spoke about fundamentalism or radicalism and terrorism clearly.
There is a visible red thread on the relationship between one to another.
This was confirmed at least by the analysis and scientific argumentation that religious doctrine directly or indirectly, have contributed to terrorism through the misused doctrine or teaching, thus creating radicalism or fundamentalism by Rapoport and Juergensmeyer summed up as one of the causes of terrorism.
Further still associated with these opinions, Afadlal explains,theoretically, how the shift from radicalism or fundamentalism to terrorism were initially moved from the concept of fanaticism.
Expressing fanaticism and radicalism or fundamentalism can appear in many forms.
Yet, it is generally proportional to the reaction or the attitude of the opposing group.
The action and reaction between the two opposing groups may be different, but in general both is approaching a similar degree and pattern.
Violence will be http://www.eastwestcenter.org/fileadmin/stored/pdfs/IGSCwp022.pdf http://www.eastwestcenter.org/fileadmin/stored/pdfs/IGSCwp022.pdf Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 169 countered with violence and one of its forms can be tangible to terrorism.
28 Tito Karnavian explained the relationship between Religion, Violence, Terrorism, and Radicalism in detail in the riot in Poso around the years 2000s ago.
It is undeniable that the riots were triggered from fanaticism of two major religions, Islam and Christianity, which is prolonged even continues until the writing of this journal.
Poso riot became one of the dark history of radicalism in this nation and easy to resolve even through the 20 December 2001 Malino Peace Declaration, which was pioneered by Mr. Jusuf Kalla and the religion leaders of Islam and Christianity.
29 Tito Karnavian analyzed that the initial cause of the riot was actually just because of misunderstanding between youths/teenagers who happened to come from a different religion.
30 A few years later, even to the completion of this article, operation Tinombala 2 has been officially given the title of terrorists to Santoso and his flock.
It is apparent here that there is a common thread between radicalism or fundamentalism with terrorism.
Observing the Poso case as national concern, the author found that all religions have the potential to be radicalized by some paragraphs in religious scripture, which can 28 Afadlal, Afadlal et all, Islam dan Radikalisme di Indonesia, (Jakarta : LIPPI Press, 2005), 9.
29 Karnavian, Tito, Indonesia Top Secret – Membongkar Konflik Poso, (Jakarta : Gramedia Pustaka Utama), 375.
30 Ibid.
52. be interpreted not in the real purpose of the paragraphs when those holy verses were revealed.
Paragraphs on Jihad in Al-Quran, among others, are "O Prophet, do strive (against) infidels and Hypocrites, and be firm against them.
Their place is Hell.
And it is the worst place to return" (At Tawbah: 44), "Do not follow infidels, jihad against them with Al-Quran by a great Jihad "(Al Furqan: 52).
There are more than 30 verses in Al-Quran about Jihad that frequently being misused by unscrupulous person to radicalize those with low levels of faith.
31 While in Al – Kitab, there was discovered some verses that can be used or misused to radicalize a Christian, among others, "They crush them with the sword everything in the city, both men and women, both young and old ..." (Joshua 10: 28), "Do not suppose that I came to bring peace on the earth; I come not to bring peace, but to bring a sword" (Matthew 10: 34), and "ye shall chase your enemies, and they shall fall before you by the sword, five of you will chase a hundred, and a hundred of you will chase ten thousand and all thine enemies shall fall before you by the sword" (Leviticus 26: 78).
32 The facts demonstrate that although there is a link between terrorism and radicalism, but religious radicalism is 31 Mustafa, Ali, “30 Ayat Al – Quran Dilarang Baca Mengandung Seruan Jihad”, (13 September 2016), <http://www.kompasiana.com> 32 Ayat – ayat radikal dalam Al-Kitab, (13 September 2016), <http://www.wordpress.com> 170 actually no more than a contributing factor to a variety of basic issues that going complex.
There is no single deal about things that become the factors into the cause of the birth of radical attitudes and behavior, but what is clear is that radicalism can not be separated by acts of violence such as terrorism.
Even the understanding of radical by many countries including Indonesia is considered as the root that causes terrorism, as well as the emergence of the Islamic State of Iraq and Sham (ISIS) that carries religious motive in the form of a khilafah, and later became an organization that similar to states via the proclamation of Islamic State (Daulah Islamiyah) to lift Abu Bakr al Baghdadi as caliph at the end of June 2014.
Therefore, in efforts to deal with them, it can not be viewed only from one side, but need a comprehensive approach.
It means that counter-terrorism that sourced from radicalism or fundamentalism is not enough just through the repressive-actions measures alone, but on the other hand need to be completed thoroughly and fairly to the root causes that give rise to the phenomenon of terrorism.
IV.
CONCLUSIONS AND SUGGESTIONS Freedom of religion is fully guaranteed in the Constitution of the Republic of Indonesia and the International Human Rights.
Even the ICCPR (International Covenant on Civil and Political Rights 1966).
However, in case of a state of national emergencies (public emergency) a state is allowed to put aside Human Rights but is limited by Article 4 paragraph (1): "in times of public emergency which threaten the life of the nation and the existence of which is Officially proclaimed, the States Party to the preset Covenant may take measures derogating from their obligation under the present Covenant by the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with reviews their other obligations under international law and do not involve; discrimination solely on the ground of race, color, sex, language, religion or social origin."
Even further in paragraph 2 the above provisions confirmed that the restriction can not be done to the rights that qualified as a non-derogable rights: the right to life, freedom from torture, freedom from enslavement, the right not to be tried by a court that is retroactive, and the right to pertain freedom of religion.
All religion‟s members have the potential to be fanatic and could further be radical or fundamental.
However, a person does not automatically mean radical terrorists.
Because radicalism only one motive causes of terrorism.
Religion (Agama) comes from the word A – not, and Gama corrupted.
Therefore, essentially, religions should have the power to fix order, improve a corrupted Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 171 human being and bring him back to his nature as the creation of God that nourishes the earth.
The state's obligation to protect all its people and prevent religion for not being used as a tool to radicalize its followers so that potential to perform terrorism.
For example the Religious Rehabilitation Group (RRG) held in Singapore, it is good for religious leaders who had participated in this deradicalization programs to be included in a training or certification, so these religious leaders are ready to caress the prisoners of terrorism that still inherent radicalism in their ideology.
Empowering communities to participate in combating criminal acts of terrorism such as religious education to promote the true and moderate value, as well as, moral education based on Pancasila in schools.
Given the latent danger of terrorism and the threat of the high intensity, then the introduction of the budget allocation for the deradicalization program needs to be considered and granted, unlike today.
Because with an adequate budget, the quality and quantity of human resources that responsible for de-radicalization program could be improved, and the infrastructure also will be able to support this program.
REFERENCES Journal Articles Burgoon,B, „On Welfare and Terror : Social Welfare Policies and Political – Economic Roots of Terrorism‟, (2006), 50 2 The Journal of Conflict Resolution, 176 – 203.
Goodwin, J, “A Theory of Categorical Terrorism”, (2006), 84 4 Social Forces, 2027 – 2046 Krueger, A, B, and Maleckova, J, „Education, Poverty and Terrorism : Is there a Causal Connection‟, (2003), 17 4 Journal of Economic Perpectives, 119 – 144.
Rapoport, D, in Weinberg, L & Eubank, W, „An End to the Fourth Wave of Terrorism ?‟, (2010) 33 7 Studies in Conflict & Terrorism , 594 – 602.
Toshiro, Yuma, „Addict and Radix, Radical : Are Same ?‟, (2003) Jurnal Psikologi , 62 Wulandari, Widati, „Public Emergency Sebagai Alasan Mengeyampingkan Kewajiban Negara Dibawah Iccpr : Reaksi Terhadap Terorisme‟, (2013) 1 1 Jurnal Hukum Internasional, 27.
Books Afadlal, Afadlal et all, Islam dan Radikalisme di Indonesia, (Jakarta : LIPPI Press, 2005).
Bill, Lillian, Black Law English Dictionary, (Michigan Press : UCLA, 1988) 172 Djelantik, S, Terorisme : Tinjuan Psiko – Politis, Peran Media, Kemiskinan, dan Keamanan Nasional, (Jakarta : Yayasan Pustaka Obor Indonesia, 2011) Galtung, Johan, Violence, Peace and Peace Research, (Oslo:Journal of Peace Research, Vol 6 No.3, 1969) Gelose, Petrus Reinhard, Deradikalisasi Terorisme : Humanis, Soul Approach, dan Menyentuh Akar Rumput, (Jakarta : Yayasan Pengembangan Kajian Ilmu Kepolisian, 2009) Johnny Ibrahim, Teori dan Metodologi Penelitian Hukum Normatif, (Bayu Media Publishing, Malang, 2006) Karnavian, Tito, Indonesia Top Secret – Membongkar Konflik Poso, (Jakarta : Gramedia Pustaka Utama).
Schabas, W, Introduction to the International Criminal Court, 2 nd , (Cambridge : Cambridge, University Press, 2004) Sunaryati Hartono, Penelitian Hukum di Indonesia pada Akhir Abad ke-20, (Bandung: Penerbit Alumni, cetakan ke-2, 2006) Triffterer, O, Commentary on the Rome Statute of The International Criminal Court, 2 nd’ , (Beck oHG : Verlag C.H., 2004).
Gurr, T, R, “Economic Factors”, in Richardson, L, ed, The Roots of Terrorism, (New York : Routledge, 2006).
Conventions Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (1971) Convention of the Prevention and Punishment of Crimes Against Internationally Protect Persons (1973) International Convention Against the Taking of Hostages (1979) Convention on the Physical Protection on Nuclear Material (1980) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988) Convention on the Marking Plastic Explosive for the Purpose of Identification (1991) European Convention on the Suppression of Terrorism (1977) Council Framework Decision of 13 June 2002 on Combating Terrorism Intern American Convention Against Terrorism (2002) Convention of the Organization of the Islamic Conference on Combating International Terrorism (1999) Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970) Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 173 Protocol for the Suppression of Unlawful Act of Violence at Airports Serving International Civil Aviation (1988) Protocol for the Suppression of Unlawful Act Against the Safety of Fixed Platforms Located on the Continental Shelf (1988) The Arab Convention for the Suppression of Terrorism (1998) Tokyo Convention on Offences and Certain Others Acts Committed on Board Aircraft (1963) United Nations Documents Whittaker, D, J, Pg..193, The promised legislation emerged in the form of Act for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (The USA PATRIOT Act) UNSC Res.
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eastwestcenter.org > Mustafa, Ali, „30 Ayat Al – Quran Dilarang Baca Mengandung Seruan Jihad‟, (13 September 2013), <http://www.kompasiana.com> Trump, D, Islam dan Teroris, (02 July 2016), <http://www.detik.com> 174
[90] Authoritarianism and Constitutional Politics in PostAuthoritarian Indonesian Society: Reemergence or Legacy Yuzuru Shimada Nagoya University Email: shimadayuzuru@gsid.nagoya-u.ac.jp DOI: http://doi.org/10.21776/ub.blj.2022.009.01.07 Submitted: 2022-01-14 | Reviewed: 2022-02-21 | Accepted: 2022-03-25 | Published: 2022-04-30 How to Cite : Shimada, Yuzuru.
2022.
“Authoritarianism and Constitutional Politics in Post-Authoritarian Indonesian Society: Reemergence or Legacy?”.
Brawijaya Law Journal 9 (1):90-106. https://doi.org/10.21776/ub.blj.2022.009.01.07 Abstract: This paper discusses how the legacy of authoritarianism in Indonesia has influenced the country’s post-authoritarian constitutional politics.
Because of some degree of ideological continuity from the authoritarian period, post-authoritarian Indonesia shows a unique situation of constitutional politics.
Specifically, the positioning of Pancasila as an incontestable state ideology exposes the freedom of expression and association to severe risks, even in post-authoritarian Indonesia.
In the discussion of post-authoritarian Indonesian society and constitutional politics, I review how the violation of Pancasila has been defined in Indonesia both during and after the authoritarian period.
To explore this issue, I examine the court judgments concerning the anti-subversion law in which antiPancasila activities were defined to restrict opinions.
I then review the social organization law amended in 2017 to argue how the law links Pancasila with the discourse of Asian values.
In conclusion, this paper argues that both during and after the authoritarian period, the interpretation of Pancasila was restricted, thus subjecting Indonesia’s political freedom to risk.
Keywords: anti-subversion law, constitutionalism in Indonesia, Pancasila, postauthoritarianism, social organization law.
I.
Introduction One of my lasting impressions of Indonesia after May 1998 was the “red” zone in bookstores.
The anti-communist Soeharto regime had strictly prohibited the publication of books on the Indonesian Communist Party (Partai Komunis Indonesia, or PKI) and its 1 Among all, article 2 of the resolution of tentative MPR (MPRS) no.
XXV in 1966 prohibits any activities, including publication, to propagate Marx-Leninism and communism.
The basic press law (The law no.
1966/11) prohibited press publications based on Communism and MarxLeninism (art.
11) while the law provided that no leading figures, as well as translations of books on socialism and communism.1 After the end of the Soeharto regime, these topics became so popular that the display area in bookstores appeared red from a distance because of the symbolic book covers.
Moreover, there were active critical ban is imposed on national press and national press does not need a publication permit.
Furthermore, the circulation letter of the director-general of press and graphic of the Ministry of Information No.
1988/01 (no.
01/SE/Ditjen-PPG/K/1988) prohibited printing publications that contain Communism and Marx-Leninism teachings.
mailto:shimadayuzuru@gsid.nagoya-u.ac.jp http://doi.org/10.21776/ub.blj.2022.009.01.07 http://doi.org/10.21776/ub.blj.2022.009.01.07 https://doi.org/10.21776/ub.blj.2022.009.01.07 E-ISSN: 2503-0841, P-ISSN: 2356-4512 [91] arguments against Pancasila, 2 the state ideology, in mass media and in political and academic arenas.
This fact represents how issues of state ideology, once monopolized by the authoritarian regime, could now be openly discussed.
However, by 2010, more than ten years since the beginning of the reformation, the situation had changed completely.
Pancasila was once again enshrined as a sacred, inviolable state ideology, and the mood of open discussion on the meaning and status of Pancasila had diminished.
I attended various academic conferences where I read academic papers published in Indonesia that used Pancasila as part of their titles, and the assumption was always that the inviolable state ideology should not be taken seriously or treated critically.
Nevertheless, a stark difference exists between the indoctrination of Pancasila in the Soeharto regime and the current manifestation of Pancasila as a state ideology.
The Soeharto regime’s definition of Pancasila supported the authoritarian regime, as is evident in the Orientation of Realization and Implementation of Pancasila (Pedoman Penghayatan dan Pengamalan Pancasila, P4), which differentiates Indonesian 2 Pancasila means ‘five principles’ in Sanskrit.
In Indonesia, it refers to the five principles stated in the last paragraph of the preamble of the Constitution, which is considered to be the state ideology.
The five principles in the preamble of the Constitution are as follows: (1) belief in the one almighty God, (2) a just and civilized humanity, (3) the unity of Indonesia, (4) democracy guided by wisdom through consultation and representation, and (5) social justice for all Indonesian people.
3 Regarding democracy, the fourth principle of Pancasila, P4 stipulates that a person should give priority to the interests of the state and society, without forcing its will on other people, and prioritize consultation and discussion (musyawarah) for taking decisions in the common interest.
Robert Cribb, “The Incredible Shrinking Pancasila: Nationalist Propaganda and the Missing Ideological Legacy of Suharto,” in The Return to democracy from liberal democracy.
3 Then, this government-sanctioned interpretation of Pancasila restricted political and social activities using various guidelines or regulations.
Regarding press freedom, for instance, the press council (Dewan Pers) formulated the guideline for developing an ideal press that obligated press media to be "free but responsible" and not to make negative criticism.4 As for labor issues, the minister of labor issued the ministerial decision on the guideline for implementing Pancasila in industrial relations in 1985.
5 This guideline also emphasized the laboremployer relationship based on the principles of family and mutual assistance, thus restricting a confrontational labor union.
Furthermore, as discussed in the following sections, courts criminalized opinions and activities critical of the government as antiPancasila in many political cases.
In other words, Soeharto’s government monopolized the authority to interpret Pancasila.
By contrast, since the reformation began, at least for now, no entity has enjoyed such a monopolistic power to define the contents of Pancasila, while Pancasila itself is considered an inviolable state ideology.
As a result, the lack of a superior interpreter of Constitutional Democracy in Indonesia, ed.
Thomas Reuter (Melbourne: Monash Asia Institute, 2010), 68; Wakhidun Abdurrahman, Adi Sulistiyono, and Abdul Manan, “The Concept of The State Law of Pancasila,” Souuth East Asia Journal of Contemporary Bussiness, Economics and Law 17, no.
5 (2018): 71–72.
4 Press council decision (keputusan dewan pers) No.79/XIV/ 1974.
The guideline was issued in 1974 after the largescale media banning caused by Malari affairs in order to delimitate media freedom in Indonesia.
Although the press council is supposed to be advisory body of press companies and journalists to assist the government, it was chaired by the information minister and was not independent of the government.
5 The decision of the minister of labor (keputusan menteri tenaga kerja) No.
KEP-645/MEN/1985.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [92] Pancasila forms a unique condition of postauthoritarian Indonesian constitutional politics, where plurality in politics, active parliamentarianism, the separation of powers, a long list of human rights in the Constitution and the severe restriction on freedom of expression exist simultaneously under a vague but uncontestable ideology.
To examine post-authoritarian Indonesian society and constitutional politics, I will review how the violation of Pancasila has been defined in Indonesia, both during and after the authoritarian period.
First, I review the judgments on cases of offense against the anti-subversion law during the Soeharto regime.
Second, I discuss the amended law on social organization in 2017 (hereinafter referred to as the social organization law of 2017), which was first enacted as a presidential regulation in lieu of the law, and then adopted by the parliament (Dewan Perwakilan Rakyat, DPR) as a law (Law No.
16/2017).
The social organization law of 2017 provides the Minister of Internal Affairs with the administrative discretion to disband any social organization considered hostile to the state’s Pancasila ideology.
6 The article argues that, as an absolute state ideology, the vaguely conceptualized Pancasila has a chilling effect on the freedom of thought and expression as well as on democracy in Indonesian society.
6 The Social Organization Law of 2017 provides for the competence of the Interior Minister as follows: Article 59 (4) c ‘[Social organization is prohibited] to adhere to, develop, and spread teachings or understandings that are contrary to Pancasila’, Article 60 (2) ‘Social organization that violate provisions in article 52 and article 59 section (3) and (4) shall be subject to administrative or criminal sanctions’, and Article 61 (3) ‘The administrative sanctions as referred to in Article 60 (2) are: a.
Revocation of registered certificate by the [Interior] Minister.’ Important research on authoritarian tendencies was done from the political perspective in Indonesia after the reformation.
Hadiz argues that local elites whose predatory power is rooted in Soeharto’s regime formed localized oligarchic alliances.7 Heryanto and Hadiz attribute an insufficient pro-democracy civil society based movement after the reformation to the legacy of the 1965 anti-communist massacres and argue that the post-authoritarian environment remains the "arena of old elites and their protégés" despite the existence of free elections and a multi-party system.
8 Those works of political science correctly point out that the cause of the current authoritarian turn in Indonesian politics is a remnant of the Soeharto regime.
This article examines the remnant of authoritarianism in the context of law and constitutionalism to offer a new perspective on Indonesia’s constitutional politics.
For that purpose, this article investigates the court judgments and legal statutes that are not addressed by previous research.
II.
Legal Materials and Methods The research in this article applies a sociolegal approach, which analyzes the law in the context of society to recognize their mutually constitutive relationship.
9 Specifically, it 7 Vedi R. Hadiz, Localising Power in PostAuthoritarian Indonesia: A Southeast Asia Perspective (Redwood: Stanford University Press, 2010).
8 Ariel Heryanto and Vedi R. Hadiz, “PostAuthoritarian Indonesia: A Comparative Southeast Asian Perspective,” Critical Asian Studies 37, no.
2 (2005): 251.
9 Naomi Creutzledt, Marc Mason, and Kristen MacConnachie, eds., Routledge Handbook of Socio-Legal Theory and Method (New York: Routledge, 2020), 4.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [93] examines how a political ideology has been defined through positive laws in Indonesia and developed through interaction within Indonesian social and political contexts.
For that purpose, this article reviews court decisions and statutory regulations, paying special attention to their backgrounds and consequences in Indonesian constitutional politics.
The author corrects court decisions cited in this article from case books compiled by the Indonesian supreme court, NGO offices that are involved in political cases, various law journals, and, as secondary sources, from mass media and NGO reports.
III.
Result and Discussion What Constitutes “Anti-Pancasila”?
The Case Of the Anti-Subversion Law a.
Multiple interpretations of Pancasila Initially, Pancasila was intended to be a flexible, pluralistic state philosophy that accommodated diverse social philosophies in Indonesian society.
Pancasila was proposed in 1945 at the meeting of the Indonesia Independence Preparation Investigation Committee (Badan Penyilidik Usaha Persiapan Kemerdekaan Indonesia, or BPUPKI) to discuss diverse ideas on the formation of the future independent state.10 There was a stark division between the group that claimed an independent state based on secular nationalism and the group that desired Islam as the state ideology.
To reach a compromise, the then committee chair Soekarno proposed the idea that one of the 10 Wendra Yulardi, “The Dynamic Interpretation of Pancasila in Indonesia State Administration History : Finding Its Authentic Interpretation,” Novelty 11, no.
1 (2020): 42–47.
11 In this article, I assume a relatively narrow meaning of an authoritarian regime—a regime in which political participation is strictly restricted and governmental power is concentrated in a principles included in Pancasila should be a state based on belief in one almighty God.
Another interpretation of Pancasila is communitarianism.
Soekarno insisted that Pancasila contained principles that reflect the communitarian values inherently respected by Indonesian society.
Soekarno explained that the principles contained in Pancasila could be summarized as mutual support within society (in Javanese, gotong-royong).
In the same meeting, a leading legal scholar of that time and the de facto composer of the constitution, Soepomo explained that the future state constitution should not be a liberal one, but one that reflected the communitarian values of traditional Indonesian society.
According to Soepomo, a Pancasila-based constitution would not contain any mechanism that supposed a contradiction between the ruler and the ruled, such as the limitation of state power or the protection of human rights against an arbitrary government.
The first interpretation of Pancasila as a state concept compromising secular nationalism and Islam created a complex implication about religious issues both for Islamism and the freedom of religion in Indonesia.
The second interpretation of Pancasila, which reflected the communitarian social structure, implied the weak protection of individual freedom and democratic government.
Indonesia achieved independence in 1945.
After the war of independence and a brief period of unstable parliamentary democracy, Indonesia became an authoritarian regime.
11 relatively small group under the strong executive branch of the government.
It follows that the legislative and judicial branches are subject to the control of the executive branch.
Periodic elections are held under the authoritarian regime but only nominally.
Based on this definition, both the Soekarno regime after 1955 and the Soeharto regime are authoritarian regimes.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [94] During the political transition, the government used Pancasila to legitimize the authoritarian regime.
Various security regulations referred to Pancasila as a reason for criminalization if any activities were seen as violating it.
The anti-subversion law12 was one of these security regulations and was the most powerful legal tool for suppressing antigovernment activities.
The next section reviews how an activity that violates Pancasila is defined under the antisubversion law.
b. Anti-subversion Law The anti-subversion law was enacted in October 1963, during a relatively stable period for Soekarno’s government.
13 Although Soekarno lifted martial law in May 1963, Soekarno needed a legal tool to sustain his power, which was built on a fragile balance between the military and the PKI.
Thus, Soekarno enacted the anti-subversion law to suppress any activity threatening his regime.
However, by the September 30 incident in 1965, Soekarno had lost political power and Soeharto was able to drive Soekarno away from the presidency.
Despite Soeharto’s claim that he would recover constitutional order, the new parliament decided to maintain the anti-subversion law and 12 The official title of the anti-subversion law is Law no.
11/PNPS/1963 on eradicating subversive activities (Undang-undang tentang pemberantasan kegiatan subversi).
PNPS stands for the Penetapan Presiden (i.e., Presidential Decision) issued by the President in lieu of law under the emergent situation.
After the transition of presidential power to Soeharto 1965, the Parliament authorized this presidential decision as a law.
13 Until the early 1960s, Soekarno’s government was plagued by regional uprisings.
Rebellions in Sumatra and Sulawesi that were directly caused by martial law occurred in 1957 and were suppressed by 1961.
The rebellion by the Darul Islam group in authorized it as a parliamentary law (Law No.13/1963).
14 As a result, the Soeharto regime also utilized the anti-subversion law as means to suppress first the PKI, and then other political dissenters such as radical Islamic groups and democratization movements.
Article 1 of the anti-subversion law states that any person shall be punished if: the person conducts such acts, intentionally, or with obviously assumed intention, or with knowledge of the result or obviously assumed knowledge of the result: 1.
To destroy, damage, or deviate from the Pancasila state ideology or the Broad Guidelines of State Policy (GBHN)… The anti-subversion law was a useful legal tool used by past authoritarian regimes in Indonesia to suppress political dissent.
In particular, because of its vague definition, activity against Pancasila state ideology in article 1(1) was the most frequently used reason for criminalizing political dissent.
Even though the Soekarno government enacted the anti-subversion law, the Soeharto government, which took over Soekarno’s power and criticized the deviation of constitutionalism in the Soekarno government, was the regime that more frequently used the anti-subversion law.
This chapter identifies what was considered West Java was also suppressed in 1962.
The ‘Republic of South Maluku’ was crushed in 1963.
Finally, in 1963, Indonesia agreed to cease the armed conflict with the Netherlands regarding the status of West Papua (Irian Jaya).
14 In the special session convened after the 30 September incident, MPRS adopted resolution no.19/1966 that ordered the parliament to review presidential decisions and presidential regulations issued by Soekarno since 1959.
Based on this MPRS resolution, after two years of work for review, the parliament enacted Law no.
5/1969 which declared several presidential decisions and regulations as parliamentary laws, including the anti-subversion law.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [95] Pancasila during the Soeharto regime by examining how the crime of “anti-Pancasila” activity of the anti-subversion law was judged in different political criminal cases.
c. Cases of the Indonesian Communist Party (PKI) After the September 30 incident, the Indonesian Communist Party (PKI) and its affiliated organizations were outlawed,15 and former PKI members who had engaged in armed resistance in several regions were tried for violating the anti-subversion law.
In PKI-related cases, the courts reasoned that the ideology of the Communist Party pursued the destruction or replacement of Pancasila as a sole state ideology.
Furthermore, in a series of trials, the courts decided that the mere participation of the Communist Party 16 or non-violent propaganda activity for the Communist Party17 constituted a subversive crime because the PKI’s object was to overturn Pancasila by establishing a communist regime.
d. Cases of Islamic radicals Radical Islamic groups also proved a serious political risk for authoritarian regimes.
Although Soekarno’s government suppressed the regional insurgencies of Darul Islam in the early 1960s, radical Islamic groups continued to exist.
In the 1970s, the government suppressed the 15 Article 1 of MPRS resolution No.25 of 1966.
16 Madiun district court decision on 31 December 1977 (No.
431/ 1977) and Buntok district court decision on 14 April 1979 (No.
1/1978/PID/TML/PN.BTK.(SUBV)).
17 Wonogiri district court decision on 20 May 1978 (No.38/Kts/1978 WNG).
According to the indictment, the accused, a member of the PKI, committed the crime for disseminating communism in the district command of the military, in collaboration with the commander since 1958.
Furthermore, after the September 30 political movement of Islamic groups called Komando Jihad.
Many Komando Jihad members were accused of anti-Pancasila activities under the anti-subversion law.
The Bojonegoro District Court passed a judgment on 11 November 1981 that actual conduct violating Pancasila was not necessary to constitute an anti-subversion crime; it was sufficient for a person to simply recognize the possibility of damaging Pancasila.
18 Furthermore, the judge maintained that the accused should recognize no legitimate state ideology other than Pancasila.
Therefore, the judgment that membership in an organization aiming to establish an Islamic state constituted an act of destroying Pancasila was upheld.
The judgment by the Kotabumi District Court on 9 February 1982 reasoned that establishing such an organization was a subversive act, arguing that committing a robbery was not the main reason for conviction.
19 Another judgment by the Bojonegoro District Court on 31 March 1983 found a defendant who had failed to even recruit new members guilty of a subversive crime.
20 These judgments demonstrate the view that there was an uncompromized contradiction between Pancasila and the Islamic State, and that any political activities that intended to replace Pancasila ideology with Islamic state ideology were an incorrect interpretation of Islam, which constituted a subversive act.
incident occurred, the accused tried to conduct military training for party members and mobilize soldiers in the regional military command.
However, the accused did not conduct violent activities.
The court judged that the accused committed the crime of violating Pancasila morality and required a heavier penalty so that the conduct would not be repeated.
18 No.9/PTS.PID.SUBV/1981/ PN.Bojonegoro 19 No.01/PID.SUBV./1981/PN.KTB 20 No.2/ III/ 1983/ PIDANA BIASA SUBVERSI/ PN.BJN Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [96] e. Cases of Separatist groups The judgment of the Lhokseumawe district court on 14 February 1983 convicted a sympathizer, who was not even an armed combatant, of the Free Aceh Movement (Gerakan Aceh Merdeka, GAM) because GAM’s political purpose was to destroy Pancasila by establishing an authority other than that of the legitimate government.21 On 15 December 1984, the Serui District Court found a student member of the Free Papua Organization, who did not even engage in armed activities, guilty of a subversive crime.
22 According to the judgment, while the accused understood Pancasila, and especially the principle of unity of the state, the student participated in a subversive activity by distributing the organization’s anthem and tentative constitution with the intention to deny Pancasila as a sole state ideology.
The Penal Code of Indonesia also has treason clauses (Book 1, Chapter I: Crime against the State Security).
However, the crime of subversion is significantly different from treason in terms of requirements.
As understood from the cases above, even if no engagement in militant activities was proven, the courts passed judgment that involvement in separatist activities was a crime of subversion because it created a severe division in society and loss of trust in the legitimate government.
21 No.7/ PTS.PID.B.SUBV/1983/ PN-LSM and No.06/ PTS.PID.B.SUBV/ 1983/ PN.LSM.
In both cases, the accused persons only offered meals and meeting places for the GAM members but were not involved in armed operations.
22 No.3/ PID.B/ 1984/ PNS 23 The PKI also intended to organize the people’s army (Tentara Rakyat) and prepared armed insurgency against the government by organizing PKI cells within the national armed forces.
24 The Tanjung Priok incident occurred on 12 September 1984.
Tanjung Priok is in the northern f. Cases of the Democratization movement The cases mentioned above confirm that under the anti-subversion law, the use of violence was not a requirement for an activity to be judged anti-Pancasila.
Thus, even nonarmed activities were deemed anti-Pancasila and penalized for subversion.
Soeharto’s government effectively utilized this interpretation of the “anti-Pancasila” activity to suppress political dissents that demanded a democratic government.
This section reviews three cases in which the government applied the crime of subversion to the mere expression of opinion or peaceful activities by labeling them as anti-Pancasila.
In the cases discussed previously, while the accused persons did not directly commit violent activities, they were affiliated with organizations who had armed operations.
23 However, Soeharto’s government also applied the anti-subversion law to purely unarmed activities.
The following alleged subversion cases reviewed here involved no violent activities whatsoever.
The first case is the arrest of retired Army General Dharsono, who was accused of subversion for publishing an unofficial report of the Tanjung Priok incident titled “White Paper on Tanjung Priok”.
24 Dharsono was arrested in November 1984 for involvement in a terrorist explosion conspiracy that part of Jakarta near the Tanjung Priok port, one of the largest industrial ports in Indonesia.
The military troops shot demonstrators that protested the military’s behaviour alleged to be disrespectful to Islam in this area, causing many casualties.
This incident was followed by a terrorist explosion on 4 October against Bank Central Asia, a Chineseowned bank in Jakarta.
For details on Dharsono’s case regarding the Tanjung Priok incident, see: Peter Burns, “The E-ISSN: 2503-0841, P-ISSN: 2356-4512 [97] occurred after the Tanjung Priok incident.
However, during the court process, the prosecutor’s indictment referred mainly to the contents of the “White Paper” that, according to the prosecutor, contained damaging statements about the government’s authority.
Regardless, the prosecutor stated that Dharsono’s influence on the riot in Tanjung Priok was indirect.25 Despite the fact that Dharsono’s indictment did not mention any organized armed activities, the Central Jakarta District Court still found Dharsono guilty of subversive activities and sentenced him to imprisonment for ten years.
The court judgment stated that the criticism against the government made through the “White Paper” did not adhere to the constitution, which was based on Pancasila democracy.
In other words, because the accused did not trust the parliamentary bodies (MPR and DPR) to debate the political issue in accordance with “the family principle” but chose instead to criticize the government by presenting the “White Paper,” his behavior was perceived to be based on liberalist culture.26 The second case is a series of the government’s actions to suppress student pro-democracy activities.
In the late 1980s, the negative aspects of the Soeharto government’s development policy, including economic disparity, corruption, and autocracy, became increasingly visible.
Despite these social problems, student political activities had been strictly controlled for the so-called “normalization of Post Priok Trials: Religious Principles and Legal Issues,” Indonesia 47 (1989): 61–88, https://hdl.handle.net/1813/53910.
25 Tempo, 24 February 1985.
26 “Indonesia: The Anti-Subversion Law: A Briefing,” Amnesty International, 1997, https://www.amnesty.org/en/documents/asa21/00 3/1997/en/.
campus life” since 1978.
Consequently, instead of large-scale rallies in public spaces, students organized small study groups outside of campuses27 and sought solidarity with laborers and farmers, including establishing various NGO activities.28 The government suppressed even these small-scale pro-democracy student activities.
On 26 February 1990,28 the Supreme Court convicted the accused for criticizing the economic policy and undemocratic nature of Soeharto’s government in a small study group.
The court deemed it a subversive act, reasoning that even though societal criticism of the government was necessary, the objection must be made in a manner that would not contradict Pancasila and the Constitution.
Furthermore, according to the decision, the opinion of the accused was influenced by Marxism and Leninism gained from the novels of Pramoedya Ananta Toer.
In this case, the court condemned the style in which critical activity against the government was delivered and decided that it constituted a subversive act.
According to the court’s judgment, the defendant made their statement at the study group in a manner that constituted subversive activity.
The defendant’s statements were deemed so hardliner and radical as to cause hostility, division, and confusion among the people disturbing national security.
The judgment maintained that although social criticism was necessary and acceptable in Indonesia, such criticisms must be moderate, nonconfrontational, not contrary to the interests 27 Edward Aspinall, “Student Dissent in Indonesia in the 1980s” (Centre of Southeast Asian Studies, Monash University, 1993), 14.
28 Anders Uhlin, Indonesia and the ‘Third Wave of Democratization’: The Indonesian ProDemocracy Movement in a Changing World (Routledge, 1997), 86–87, 105–10.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [98] of the people, not destructive of unity, and not contrary to Pancasila and the Constitution.
In addition, the judge decided that the defendant’s statement indicated an intention to expel Pancasila ideology.
Because the communism from Pramoedya’s novels was found to have influenced the defendant, their statement purported to replace Pancasila ideology with other ideologies, thereby causing hostility among the social classes.
The third case concerns the People’s Democratic Party (PRD).
The government claimed that the PRD masterminded a riot that occurred after the condemnation of the occupation of the Indonesian Democratic Party Headquarters by supporters of Megawati Soekarnoputri on 27th July 1996.
The chairperson of the PRD and leaders of the sub-organizations were arrested for a subversive act.
The Central Jakarta District Court decided that the mobilization of laborers and students for the demonstration organized by the party could destroy Pancasila and the Broad Policy Guidelines (Garis-garis Besar Haluan Negara, GBHN).29 The PRD’s party platform, action plan, and manifesto objected to the fundamental systems of Soeharto’s authoritarian regime.
The PRD’s platform outlined the principle of the “People’s Social Democracy,” which aimed to create a democratic multi-party system.
In their action plan, the PRD further proposed the abolishment of the five laws enacted in 1985 relating to political systems that legally supported Soeharto’s authoritarian regime 30 and the military’s political function (dwi-fungsi ABRI): controlling inflation; increasing the minimum wage; allowing a presidency other 29 No.225/ Pid.B/ 1996/ PN.Jkt.Pst.
30 These political laws refer to the laws on the general election, parliament bodies, political parties, and than Soeharto’s; monitoring general elections; operating a referendum in East Timor; supporting Megawati Soekarnoputri; and rejecting Pancasila as the sole state principle.
The “Manifesto of PRD” also declared that there was no democracy in Indonesia; that the 30-year-long Soeharto regime had oppressed the political rights of people, and that the parliament had been maliciously structured to maintain the regime.
The PRD also collaborated with labor and student groups to stage various protests.
The Central Jakarta District Court decided that the PRD’s activities constituted antiPancasila subversive acts.
According to the court’s decision, the PRD rejected Pancasila as the sole principle and demanded that the five political laws enacted in 1985 (that parliament had duly enacted by the parliament following the MPR decision in 1983) be revoked.
Furthermore, the judge indicated that the PRD had incited students and workers who did not understand the PRD’s political demands to achieve its political interests.
Therefore, according to the court’s judgment, these activities were potential destroyers of Pancasila and the GBHN.
Meanwhile, regarding the violent July 27 incidents in which the PRD was allegedly involved, the decision only briefly mentioned that the PRD participated.
These three cases indicate how broad the notion of “anti-Pancasila” was under Soeharto’s authoritarian regime.
At first, the “security” to be protected by the antisubversion law was the closed profit-sharing system in an authoritarian Soeharto regime that advocated develop mentalism.
In this system, broad political participation by ordinary citizens was not permitted, and any Golkar, and the law on referendums enacted in 1985.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [99] open criticism against the negative aspects of the development policy, such as nepotism, wealth concentration, or the widening income gap, were deemed anti-Pancasila subversive activities that could pose a risk to security.
Furthermore, even if the defendants’ violent acts were not sufficiently proven during the court process, the law on antiPancasila subversive acts could still be applied based on the defendants’ previous speeches or opinions.
Another important point is that the Indonesian authoritarian government allowed the expression of critical opinions of the government only through extremely limited channels.
In this context, the Pancasila way of criticism was understood to be a non-confrontational expression of criticism.
Thus, as in prior court judgments, opinions should only be delivered through “deliberations in DPR/MPR to conduct consultation based on the family principle,” or in a “moderate, not confrontational, not contradicting people’s interest and not violating Pancasila and the Constitution” manner.
In fact, the President controlled the parliament through strict regulations on the parties’ activities and nominated seats appropriated for military officials, and the meaning of a manner “not violating Pancasila and the Constitution” was so opaque that any political activities faced the risk of arbitrary criminal punishment by the government.
31 According to Grimm, in discussing the constitutional typology of Loewenstein, ‘The decisive line runs between systems based on a supra-individual absolute truth, on the one hand, and systems that give primacy to individual autonomy on the other hand’.
While this absolute truth can be either religious truth or secular truth, a vision of the perfect society—the final goal of all historical development—‘always entails subordination of the constitution to the truth’.
See: Dieter Grimm, “Types of Constitutions,” in The By monopolizing the interpretation of Pancasila, the authoritarian government under Soeharto could penalize any expression that did not serve the regime’s interests.
Using oppressive measures backed by the strong presidential powers afforded by the 1945 Constitution, Soeharto’s regime strictly limited free argument about Pancasila and monopolized the interpretation of the Pancasila ideology.
Pancasila was positioned as a supra-individual absolute truth transcending the Constitution, 31 and constitutionalism in Indonesia became merely semantic, failing to restrain the President’s arbitrary exercise of political power.
After more than 30 years as president, Soeharto’s resignation in 1998, combined with the amendment to overhaul the Constitution, which supported the legitimacy of authoritarianism, meant that the situation should have changed completely.
However, reality seems to reflect the opposite.
Therefore, the gap between normative democratic constitutionalism under the amended Constitution and the restrictions on political freedom should be examined.
The next chapter discusses how the legacy of Soeharto’s regime regarding “anti-Pancasila” activities is still entrenched in current Indonesian constitutional politics.
Oxford Handbook of Comparative Constitutional Law, ed.
Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012), 114; For the comparison of the constitutional typologies of Loewenstein, Grimm and Sartori, see: Albert HY Chen, “The Achievement of Constitutionalism in Asia: Moving Beyond “Constitutions without Constitutionalism,” in Constitutionalism in Asia in the Early Twenty-First Century, ed.
Albert H.Y.
Chen (Cambridge University Press, 2014), 9–12.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [100] Post-Authoritarian Constitutionalism and Social Organization Law a.
Legal situation during the postauthoritarian period Among various legal products of Soeharto’s regime, the “five political laws” enacted in 1985 were the most powerful legal tools for sustaining an authoritarian regime.
These five political laws and their functions are as follows: • The General Election Law (UU Pemilu, Law No.
1/1985) – restricted political parties’ activities in a general election • The Parliaments Law (UU MPR, DPR dan DPRD, Law No.
2/1985) – provided non-elected seats for the military in parliament bodies at both national and local levels • The Political Party Law (UU Partai Politik dan Golkar, Law No.
3/1985) – restricted the freedom of political parties32 • The Referendum Law (UU Referendum, Law No.
5/1985) – protected the 1945 Constitution as a tool of the authoritarian regime • The Social Organization Law (UU Organisasi Kemasyarakatan, Law No.
8/1985) – restricted freedom of association The first four laws were abolished or amended soon after the end of Soeharto’s regime.
Only the Social Organization Law 32 Since the beginning of Soekarno’s authoritarian regime, the Indonesian government has insisted that Golkar (a functional group) is different from political parties.
However, in practice, Golkar has played the role of a powerful political organization.
To avoid complexity, ‘Law no.
3/1985’ in this article is referred to as the political party law.
33 Article 8, Law no.
8/1985 provides that ‘to play a greater role in carrying out its functions, social organizations gather in a guiding and development remained untouched until its amendment by Law No.
17/2013 in 2013.
While the most severe threat to the freedom of association during Soeharto’s regime, the single umbrella organization rule33 was not applied as strictly as in the previous regime, the prohibition of anti-Pancasila organizations remained unchanged.
The laws in 2013 and 2017 (Law No.
16/2017 that recognized the government regulation in lieu of Law No.
2/2017 as a parliamentary law) amending the Social Organization Law formally abolished the single umbrella organization rule, but interestingly seemed to tighten restrictions on organizations assumed to be anti-Pancasila.
The amendment of the social organization law in 2017 was initially enacted as a government regulation in lieu of law, and the parliament authorized this presidential regulation as a law pursuant to Article 22 of the Constitution.34 In its preamble, social organizations were obliged to defend Pancasila as follows: a.
The state has an obligation to defend the sovereignty of the Republic of Indonesia as a unitary state based on Pancasila and the 1945 Constitution.
b.
The violation of the principle and purpose of social organization based on Pancasila and the 1945 Constitution is reprehensible in view of the morality of the Indonesian nation regardless of the ethnic, religious, or national background platform of the same category’.
Thus, a social organization is obliged to be a subordinate part of the upper national umbrella organization that the government authorizes.
34 Article 22 of the Constitution states that: (1) Should exigencies compel, the President shall have the right to enact government regulations in lieu of laws.
(2) Such government regulations must obtain the approval of the DPR in its next session.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [101] of the perpetrator.
To achieve this purpose, the preamble further explains why the Interior Minister, not the judiciary, had the legal authority to disband alleged anti-Pancasila organizations: a.
Because Law No.
17/2013 on social organizations has not adhered to the principle of contrarius actus,35 it is not effective to impose sanctions on social organizations that adhere to, develop, and spread teachings or ideas that are contrary to Pancasila and the 1945 Constitution.
Even though civil freedoms had expanded significantly since the end of the Soeharto authoritarian regime, as the law’s preamble declares, the government considered Pancasila an inviolable state ideology and any organization that denied or rejected Pancasila was not permitted to exist in Indonesia.
Furthermore, based on the principle of contrarius actus, because of the Interior Minister’s wide discretion, this law represented a severe restriction on the freedom of association guaranteed by the Constitution (Articles 28 and article 28E).
As discussed in the previous chapter, Soeharto’s authoritarian government suppressed political dissent through a monopolized interpretation of Pancasila.
In the next section, this article considers the implications of the previous regime’s legacy that are reflected in the amended social organization law that prohibits and even disbands organizations deemed “antiPancasila.” For this purpose, I refer to the notion of “Indonesian values” or 35 This Latin term means that if a state authority has specific competence, that competence includes the competence to reverse the previous decision.
36 Strangely, the reference to the declaration in the elucidation part of the amended social organization law is written in English and the quotation from the original text of the declaration is not complete.
the “Indonesianess” and the concept of illiberal constitutionalism.
b. Indonesian values The references to “Asian values” that emerged in popular human rights discourses in the 1990s indicates the most significant characteristic of the amended social organization law of 2017.
Interestingly, in the elucidation section, the amended social organization Law of 2017 refers to the Bangkok Declaration on Human Rights in 1993.
The Bangkok Declaration of 1993 was adopted in the Asia-Pacific regional preparatory meeting for the Vienna International Human Rights Conference in 1993.36 Around the time of that conference, there was heated controversy over the concept of human rights between Western developed countries and non-European (mainly East and Southeast Asian) countries.
The Bangkok Declaration of Human Rights was the first direct collective refutation by Asian authoritarian countries of the accusations of poor human rights records in that region.
The declaration stated that because each state had its own socio-cultural values and human rights based on their unique culture and society.
Therefore, Western countries should not force nonWestern countries to accept their values, including those concerning human rights.
This argument is often referred to as the “Asian value discourse” or “Asian Human Rights” discourse.
Despite the bold claim of the Asian value discourse in the 1990s, this argument did not have an adequate author has not yet found a reason for this part of the law being written in English.
Furthermore, the English part seems to be a quotation from other documents; however, there is no reference to the source.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [102] theoretical foundation, and it was ultimately no more than a self-legitimation of domestic human rights restrictions by authoritarian Asian regimes.
The amended social organization law reiterated the Bangkok Declaration in 1993 to support the legitimacy of the restrictions on the freedom of association in the name of Pancasila.
The elucidation of the law refers to the Bangkok Declaration on two points: the matter of the fair application of human rights, and Indonesia’s unique social values.
Regarding the matter of the application of human rights, the elucidation of the law refers to paragraph 10 of the Bangkok declaration, which states: “10.
Reaffirm the interdependence and indivisibility of economic, social, cultural, civil, and political rights, and the need to give equal emphasis to all categories of human rights.” The law interprets this sentence as a rejection of the unconditional recognition of civil and political rights by insisting that: “The barely disguised subtext here is that civil and political rights (with their assertions of democratic and protest rights) have been wrongly prioritized by the supporters of human rights in the Global North with the result that the subject of human rights often appears exhausted once the issue of democratic freedom has been fully ventilated (penjelasan umum the 4th paragraph).” This argument reminds us of the authoritarian develop mentalism that characterized Suharto’s regime, which suppressed labor unions, farmers’ organizations, and groups of urban poor who complained that they suffered from the consequences of allowed mega-development projects.
37 For more details on the ‘integralistic state’ discourse in the Soeharto regime, see: Marsillam As for the emphasis on Indonesia’s unique social values, the law quotes the eighth paragraph of the Bangkok Declaration, which states: “8.
Recognizing that while human rights are universal, they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural, and religious backgrounds.” This elucidation insists that the interpretation of the Universal Declaration of Human Rights should not be made or applied as contradicting historical, cultural, or religious backgrounds.
At this point, Pancasila was referenced as defining Indonesia’s historical, cultural, and religious backgrounds.
During Soeharto’s regime, the discourse on cultural values played a significant role in restricting alleged “anti-Pancasila” activities based on the anti-subversion law.
Subversion was not a crime of violence, but a crime against the values of Indonesian society as contained in Pancasila.
Therefore, as indicated during the trials of General Dharsono, student activities, and PRD, a subversive activity meant an act against any mode of behavior and thought consistent with Pancasila values.
Furthermore, Soeharto’s government monopolized the authority to determine what Pancasila meant and what activities were deemed inconsistent with the Pancasila values.
To justify Pancasila values, the Soeharto regime referred to the story of a “good traditional Indonesian society.” For instance, in this context, the family principle, mutual support, and an integrated state37 was presented as the reality embodying the “Indonesian values” or Simanjuntak, Pandangan Negara Integralistik (Jakarta: Grafiti, 1994).
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [103] “Indonesianess” 38 that distinguishes Indonesian society from Western liberal society.
Therefore, arguing the meaning of these values was disallowed by the broader public, and any opinion that raised doubt about the government’s interpretation of Pancasila was restricted and even criminalized.
The articles in the amended social organization law that prohibit anti-Pancasila activities indicate that post-authoritarian Indonesia shares this social value discourse and thus maintains the legacy of the authoritarian regime.
c. Illiberal constitutionalism What effect does the emphasis on Indonesian social values have on post-authoritarian constitutionalism in Indonesia?
The concept of illiberal constitutionalism offers rich implications for this discussion.
While the liberal polity recognizes individual autonomy and state neutrality as its two main pillars, the illiberal polity prioritizes community interests and actively promotes a particular vision of communal life.39 Thus, unlike a liberal polity, an illiberal state is “expressly non-neutral, privileging a substantive vision of the good, informed by ethnicity, religion, or communal morality”.40 From this viewpoint, the 1945 Constitution, which deems Pancasila as the state ideology, has characteristics of illiberal constitutionalism.
38 Although these values were referred to as being inherent in traditional Indonesian culture, the fundamental concepts were imported from European political and legal ideas, such as the historical legal school or organic state concept during the pro-independence nationalism period.
As for the foreign roots of the traditional value discourse in Indonesia, see: Peter Burns, The Leiden Legacy: Concepts of Law in Indonesia (Netherlands: Brill, 2002); David Bourchier, Illiberal Democracy in Indonesia: The Ideology of While illiberal constitutionalism does not necessarily result in an undemocratic regime, “communitarian and theocratic constitutional orders, in their search for identity and authority, may not sufficiently restrain the abuse of public power or articulate a substantive articulation of the good and common life which is satisfactorily inclusive”.
41 Therefore, even though the amended Constitution of Indonesia provides for the protection of human rights and the restriction of executive power that is far stronger than it was before, this Constitution is still vulnerable to authoritarianism.
It is especially dangerous if there is no opportunity to debate the meaning of ideology and the common good.
A tendency to exclude opinions not favored by society’s majority is also evident in other laws.
Among all, the frequent application of defamation charges under the Electronic Information and Transaction Law (Law No.
11/2008) restricts free expression of opinions unfavored by the political and social status quo.
The blasphemy law (Government regulation in lieu of Law No.
1/1965) is yet another case that limits free space for the argument on “Indonesianess.” In the judicial review decision in 2009 on the Blasphemy Law,42 the Constitutional Court used the concept of “Indonesianess” (keindonesiaan) as the main basis for its judgment confirming the constitutionality of the Blasphemy Law.
The the Family State (New York: Routledge Politics in Asia Series, 2014).
39 Li-Ann Thio, “Constitutionalism in Illiberal Polities,” in The Oxford Handbook of Comparative Constitutional Law, ed.
Michel Rosenfeld and András Sajó (Oxford: Oxford University Press, 2012), 134.
40 Thio, 136.
41 Thio, 149.
42 The constitutional court decision No.
140/PUUVII/2009 Brawijaya Law Journal: Journal of Legal Studies 9(1): 90-106 [104] court reasoned that any religious propaganda contradicting Pancasila, which provides the principle of “the State based on one almighty God,” shall not be accepted by good Indonesian citizens.
Furthermore, the judgment defined blasphemy as an interpretation of religious teachings which are assumed to be deviations from the authoritative Indonesian Ulamas (Islamic law scholars) or clerics.
In other words, this court decision referred to the opinions of conservative religious organizations in Indonesia as congruent with “good Indonesian values.” Furthermore, these conservative religious organizations have a strong influence on the government.
Among all, the blasphemy charge in 2017 against Basuki Tjahaja Purnama alias Ahok, the former Jakarta Governor, proved the risk of a monopolized interpretation of ideology.
Despite the very weak grounds of the charge, the court found Basuki guilty of blasphemy because of his election campaign speech of the previous year.
IV.
Conclusion All three Indonesian Constitutions have positioned Pancasila in their preambles that declare fundamental constitutional principles.
In fact, the interpretation of Pancasila has varied throughout Indonesia’s history of constitutional politics.
However, the two authoritarian regimes of Soekarno and Soeharto successfully monopolized authority over Pancasila and suppressed political dissents.
The Anti-Subversion Law enacted in 1963 was one of the most effective legal tools for an authoritarian government that utilized the Pancasila ideology for its political interests.
As seen in the series of court judgments regarding the crime of subversive activities, anti-Pancasila activities have been widely defined, ranging from armed organization against the government to unfavorable opinions of the government.
Furthermore, Soeharto’s government attached a cultural meaning to Pancasila, combining it with the idealized traditional culture of Indonesian society in which community members live peacefully for the communal good without conflict among members or between the ruler and the ruled.
As a consequence of labeling Pancasila as cultural, even moderate opinions could be labeled as anti-Pancasila if the mode of expression was deemed subversive.
While the current Constitution provides for the protection of the freedom of opinion, and most security regulations restricting political dissents have been abolished or revised so that the law protects political and civil liberties, the ambiguous meaning of Pancasila values and the lack of freedom to discuss state ideology still has a chilling effect on the freedoms of expression and association in Indonesia.
As seen in the amendment of the social organization law, the potential risk of arbitrary use of the “antiPancasila” argument remains high.
Therefore, the current emerging risk of authoritarianism in post-authoritarian Indonesian society is partially the result of the legacy of the authoritarian regime that made Pancasila an unquestionable absolute value in Indonesia.
At present, the targets of the amended social organization law are confined to extreme Islamist groups.
However, as in Suharto’s regime, the text of the law itself broadly and vaguely covers social organizations whose platform “denies or replaces Pancasila,” including communism and Marxism– Leninism.
The Soeharto regime often labeled groups or persons who demanded accountability from the government as “communists” and excluded human rights E-ISSN: 2503-0841, P-ISSN: 2356-4512 [105] protections from political forums.
Therefore, the amended social organization law remains a serious risk of authoritarianism in Indonesia.
V. Acknowledgments This work was supported by JSPS KAKENHI Grant Numbers JP 17H02444 and JP19K01260.
We thank Editage (www.editage.com) for English language editing.
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[16] Civil-Military Cooperation in Humanitarian Assistance and Disaster Relief: The Legal Frameworks Panita Chaisorn School of Political and Social Science, University of Phayao Email: Panita.ch@up.ac.th DOI: http://doi.org/10.21776/ub.blj.2022.009.01.02 Submitted: 2022-01-16 | Reviewed: 2022-03-27 | Accepted: 2022-04-20 | Published: 2022-04-30 How to Cite : Chaisorn, Panita.
2022.
“Civil-Military Cooperation (CIMIC) in Humanitarian Assistance and Disaster Relief (HADR): The Legal Frameworks”.
Brawijaya Law Journal 9 (1):16-32. https://doi.org/10.21776/ub.blj.2022.009.01.02 Abstract: Civil-military cooperation (CIMIC) is one of the most crucial factors for a successful humanitarian assistance and disaster relief (HADR) operation.
It is important to foster the relationship between these two sectors to pursue effective outcomes for the operation.
Therefore, a developed mechanism for civilian-military coordination including clear CIMIC frameworks is needed.
This paper explores the frameworks/guidelines on CIMIC in HADR issued by three international organizations, namely the United Nations (UN), the North Atlantic Treaty Organization (NATO), and the Association of Southeast Asian Nations (ASEAN).
The focus of this study will be on the operation at the operational phase.
The CIMIC fundamentals and principles of the foreign military sector will be scrutinized.
Consequently, the analysis would help identify the essential subjects for policymakers to consider and issue the proper national framework for CIMIC in HADR.
Keywords: civil-military cooperation; humanitarian assistance and disaster relief; legal frameworks.
I.
Introduction Natural disasters, which are one of the most dangerous hazards to humans, have frequently occurred across the world.
It causes a great loss of lives, especially in developing countries that lack comprehensive and effective disaster management systems.
To deal with these catastrophes, several stakeholders must take part in the operations of the “humanitarian assistance and disaster relief (HADR).” Although the relief operation is traditionally believed to be a civilian-domain mission, the military sector has gradually shown its efforts in assisting the victims, especially those affected by the large-scale disaster.
Since the post-Cold War period, the range of military operations has been widened from the warfare to the military operation other than war (MOOTW) in both conflict and peacetime situations.
Therefore, in HADR, which is the unique peacetime operation, interagency cooperation among the military and civilian sectors is unavoidable.
Key factors for successful operation include quick deployment to be the first on the ground, enhanced and expanded information sharing as the basis of decision making, and the developed mechanism for civilian-military coordination such as clear civil-military mailto:Panita.ch@up.ac.th http://doi.org/10.21776/ub.blj.2022.009.01.02 https://doi.org/10.21776/ub.blj.2022.009.01.02 E-ISSN: 2503-0841, P-ISSN: 2356-4512 [17] cooperation (CIMIC) frameworks and protocols.
1 Consequently, the controversial debates on the role of the military, both ideological and operational, between related sectors and scholars arose.
For the ideological discussion, the rise of operations other than war has challenged the armed forces’ conventional focus on warfighting affairs.
Some believe that military personnel should remain focused on warfighting skills, while others mentioned a complete shift of the military roles to operations other than war.
For example, Gregory D. Foster believes MOOTW should become the military’s principal focus.
He stated that the primary purpose of the military should change from destructive to constructive forces.
The old concept of national security will not be suitable for the post-Cold War environment.2 Contrarily, Samuel Huntington insisted that “the mission of the Armed Forces is a combat mission.
The military should not be organized, prepared, or trained to perform such (non-combat) roles.
A military force is fundamentally antihumanitarian: its purpose is to kill people.”3 1 Weathering the Perfect Storm: Lessons Learnt on the ASEAN’s Response to the Aftermath of Typhoon Haiyan (2nd Edition) (Jakarta: The ASEAN Secretariat, 2014), 6–8.
2 Foster as cited by James R. Ayers, “Military Operations Other Than War in the New World Order: An Analysis of Joint Doctrine for the Coming Era” (Air University, 1996), 3.
3 Huntington as cited by Ayers, 4.
4 Ayers, 3–4.
5 Department of Defense, ed., Joint Publication 307: Joint Doctrine for Military Operation Other Than War (The Joint Chiefs of Staff, 1995), preface.
6 Ajay Madiwale and Kudrat Virk, “Civil–Military Relations in Natural Disasters: A Case Study of the 2010 Pakistan FLoods,” International Review of the Red Cross 93, no.
884 (2011): 1085–1105; Marjan Malešič, “The Impact of Military Engagement in Disaster Management on Civil– Military Relations,” Current Sociology 63, no.
7 Nonetheless, there are some in the military community who see the need for a balanced approach that affirms the MOOTW as the role subordinated to the combat mission.
4As stated in the Joint Pub.
3–07, the Joint Staff recognizes the need to increase its emphasis on MOOTW skills by stating that “while we have historically focused on warfighting, our military profession is increasingly changing its focus to a complex array of MOOTW.” 5 With their wide array of capabilities, the armed forces are the first resorts of nerve centers for relief operations, especially in the developing countries that lack a comprehensive and stable civilian structure for disaster management.
6 Considering the military’s role in HADR operations, military capacities are often regarded as valuable resources for responding to natural disaster emergencies.
Because of the increased military engagement in crisis response, some view these new roles of the military as “the forces for good” or “humanitarian warriors.”7 Several military capabilities can be highlighted as the basis of effective relief operations.
These include technological and logistical capability, which is central to (2015): 980–998; Raja Shabab et al., “Armed Forces and Disaster Management,” American Journal of Social Science Research 1, no.
3 (2015): 152–57; Manish Thapa, Out of Barracks: CivilMilitary Relations in Disaster Management: A Case Study of Nepalese Army’s Humanitarian Response during 2015 Earthquake in Nepal (University for Peace, 2016); Michael R Weeks, “Organizing for Disaster: Lessons from the Military,” Business Horizons 50, no.
6 (1995): 479–89.
7 Andrew Cottey and Ted Bikin-Kita, “The Military and Humanitarianism: Emerging Patterns of Intervention and Engagement,” in In Resetting the Rules of Engagement: Trends and Issues in Military-Humanitarian Relations, ed.
Victoria Wheeler and Adele Hamer (London: Overseas Development Institute, 2006), 21–24.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [18] humanitarian assistance, well-defined command and control, clear self-contained organizational structure, quick response, especially in inaccessible areas, wellresourced with search and rescue capacity, action-oriented and task-specific military approach, trained and multi-skilled workforce, strategic and tactical planning, effective decision making, effective communication system, 8 organizational flexibility, technical infrastructure and cultural openness (Luecha, 2014), and substantial discretionary fund.9 Additionally, many experts have introduced the idea of disaster militarism and the militarization of humanitarian relief efforts on the international agenda.10 8 Rosalie Arcala Hall, ed., Civil-Military Cooperation in Emergency Relief (Quezon City: Central Book Supply Inc, 2009); Ayers, “Military Operations Other Than War in the New World Order: An Analysis of Joint Doctrine for the Coming Era”; Jeff Drifmeyer and Craig Llewellyn, “Toward More Effective Humanitarian Assistance,” Military Medicine 169, no.
3 (2004): 161–68; Fischer E, “Disaster Response: The Role of a Humanitarian Military,” 2011, www.armytechnology.com ; Annie Isabel Fukushima and Et.al, “Disaster Militarism: Rethinking U.S.
Relief in the Asia-Pacific.,” Foreign Policy in Focus and The Nation.com, 2014, https://fpif.org/disastermilitarism-rethinking-u-s-relief-asia-pacific/; Clare Harkin, The 2004 Tsunami: Civil Military Aspects of the International Response (London: Tsunami Evaluation Coalition, 2005); Graham Heaslip and Elizabeth Barber, “Using the Military in Disaster Relief: Systemizing Challenges and Opportunities.,” Journal of Humanitarian Logistics and Supply Chain Management 4, no.
1 (2014): 60–81; Yih-Shiun Hsieh, The ROC Armed Forces and Civil Society in Natural Disaster Relief Operations: A Deepening Cooperation and the Establishment of Sound Disaster Relief System, 2010; Neil Joyce, “Civilian-Military Coordination in the Emergency Response in Indonesia,” Military Medicine 171, no.
10 (2006): 66–83; Madiwale and Virk, “Civil–Military Relations in Natural Disasters: A Case Study of the 2010 Pakistan FLoods”; Mark Phillips, The Role of the Military in International Disaster Relief Activities (Tokyo: The National Institue for Defense Studies, 2011), www.nids.mod.go.jp/english/event/symposium/p df/2011/e_03.pdf ; Timothy Edward Russell, “The However, from the military perspective, although some commanders regard the disaster relief mission as a distraction from the military primary mission of homeland defense,11 many military leaders realize that participating in HADR will provide many benefits to the armed forces and it is an appropriate duty to advance a nation’s policy objectives that would standardize the task of a modern army.
12 The benefits are, for example, the advantages to the nation’s overall policy objectives, a positive image of the military in public perception, high credibility, and training opportunities that will diversify its roles and expertise and staff morale.
13 Thus, some are ready to accept military deployment to minimize casualties Humanitarian Relief Supply Chain: Analysis of the 2004 South East Asia Earthquake and Tsunami” (Massachusetts Institute of Technology, 2005); Shabab et al., “Armed Forces and Disaster Management”; Thapa, Out of Barracks: CivilMilitary Relations in Disaster Management: A Case Study of Nepalese Army’s Humanitarian Response during 2015 Earthquake in Nepal; Weeks, “Organizing for Disaster: Lessons from the Military.” 9 Heaslip and Barber, “Using the Military in Disaster Relief: Systemizing Challenges and Opportunities.” 10 Hall, Civil-Military Cooperation in Emergency Relief; Fukushima and Et.al, “Disaster Militarism: Rethinking U.S.
Relief in the Asia-Pacific.” 11 Malešič, “The Impact of Military Engagement in Disaster Management on Civil–Military Relations.” 12 H. Allen Irish, “A ‘Peace Corps with Guns’: Can the Military Be a Tool of Development?,” in The Interagency and Counterinsurgency Warfare: Stability, Security, Transition, and Reconstruction Roles, ed.
Joseph R. Cerami and Jay W. Boggs (Carlisle, PA: Strategic Studies Institute, 2007), 53–95; Malešič, “The Impact of Military Engagement in Disaster Management on Civil– Military Relations.” 13 František Bartko, “Holistic Analysis of the Military District Units Disaster Relief Efforts,” Science & Military 1 (n.d.): 40–42; Jeffrey Engstrom, “Taking Disaster Seriously: East Asian Military Involvement in International Disaster Relief Operations and the Implications for Force Projection,” Asian Security 9, no.
1 (2013): 38–61; Fukushima and Et.al, “Disaster Militarism: Rethinking U.S.
Relief in the Asia-Pacific.”; E-ISSN: 2503-0841, P-ISSN: 2356-4512 [19] and noticed the effective cooperation between the military and civil agencies in the field.14 According to Shabab, 15 there are four trends for military participation in HADR; namely, disaster management as part of MOOTW, military acting as the communication hub, foreign humanitarian assistance, and military disaster training exercises.
The operational debates emerge.
As stated above, CIMIC is one of the most vital factors for successful operations.
Several debatable aspects dealing with such cooperation have been stated.
The key question is how the two sectors will cooperate effectively to achieve the humanitarian goal of saving lives.
How should the military sector provide such assistance?
Should the military be one of the direct aid providers or just the supporter of the civilian sector?
How long should the military be involved, especially for the largescale relief operation?
How about the command and control system between the civilian and military sectors?
Will there be any incompatibility caused by different cultures and work priorities?
Will they have the trust and understanding among themselves?
How can military operations, especially those of foreign military, match the humanitarian principles of humanity, impartiality, neutrality, and independence?
A summary of such a controversial discussion is shown in Table 1.
Table 1: Military and Humanitarian Assistance: Controversial Discussion Ideological Debates Operational Debates  Military, the fighters and killers in war, as the protectors of human security in humanitarian operation  Military operation other than war (MOOTW) as the core or marginal affairs of the military sector?
 Military potentialities for humanitarian assistance and disaster relief (HADR) to save lives of human beings: direct assistance, indirect assistance, and infrastructure support  (Foreign) Military role and the compatibility with humanitarian principles: humanity, impartiality, neutrality, and independence  Mechanism for civil-military cooperation (CIMIC)  Task division between military and civilian sectors: non-combatant evacuation, stabilization, reconstruction, etc.
 Military as the key direct providers of aid vs. Military as the supporter to civilian sector  Command and control (C2) system for CIMIC and the leadership in C2 system  Mutual trust and understanding between military and civilian sectors  Information sharing, communication, and common terminology issues  Joint planning and unifying principles  Unity of purpose, unity of efforts, for the common goals  Military and last resort principle  Aid provision, operational phase and period of time: urgent shortterm phase, immediate middle-term phase, and long-term reconstruction phase Harkin, The 2004 Tsunami: Civil Military Aspects of the International Response; Irish, “A ‘Peace Corps with Guns’: Can the Military Be a Tool of Development?”; Madiwale and Virk, “Civil– Military Relations in Natural Disasters: A Case Study of the 2010 Pakistan FLoods”; Malešič, “The Impact of Military Engagement in Disaster Management on Civil–Military Relations”; Thapa, Out of Barracks: Civil-Military Relations in Disaster Management: A Case Study of Nepalese Army’s Humanitarian Response during 2015 Earthquake in Nepal.
14 Heaslip and Barber, “Using the Military in Disaster Relief: Systemizing Challenges and Opportunities.”; Malešič, “The Impact of Military Engagement in Disaster Management on Civil– Military Relations.” 15 Shabab et al., “Armed Forces and Disaster Management.” Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [20] The importance of fostering strong civilmilitary and military-military cooperation is gaining recognition among regional countries.
As a result of this fact, several major international organizations have issued guidelines, handbooks, and agreements concerning CIMIC in HADR to set the framework for effective cooperation between the two sectors.
This paper explores and highlights the key concerns stated in some international frameworks/guidelines on CIMIC in HADR.
The frameworks/guidelines from three international organizations, namely, the United Nations (UN), the North Atlantic Treaty Organization (NATO), and the Association of Southeast Asian Nations (ASEAN), were selected.
The emphasis will be on CIMIC at the operational phase, focusing on CIMIC fundamentals and principles for foreign military sectors.
The author intends to examine and separate the specific features designed for foreign militaries stated in the selected documents.
In conclusion, specific fundamentals applicable to both national and foreign military personnel for the effective CIMIC and successful HADR will be discussed.
As a result, the important subjects of consideration could be identified for policymakers to create the national framework for CIMIC.
II.
Legal Materials And Methods This academic paper adopted qualitative methodology and descriptive and comparative methods.
The data from relevant documents are investigated, analyzed, and discussed to bolster the author’s argument.
16 For more information, see United Nations, Deliver humanitarian aid, available from III.
Result And Discussion As stated in the introduction, the relevant legal frameworks/guidelines will be selected from three international organizations, namely, the UN, NATO, and ASEAN, with two from the UN, one from NATO, and three from ASEAN.
The selected details relating to the main theme of this paper are demonstrated as follows.
The UN: Relevant Guidelines and Related Organs When WWII was about to end in 1945, the UN, which was the world’s only global organization, was founded to maintain international peace and security, give humanitarian assistance to those in need, protect human rights, and uphold international law.
One of the key tasks of the organization was the humanitarian aid delivery.
To deal with natural and man-made disasters in areas beyond the capacity of national authorities, the UN is now relied upon by the international community to coordinate humanitarian relief of emergencies.
The office for the Coordination of Humanitarian Affairs (OCHA) of the UN Secretariat is the major organ responsible for coordinating responses to emergencies together with other UN entities responsible for delivering humanitarian aid, for example, the United Nations Development Programme, the United Nations Children’s Fund, and the World Food Programme.16 There are several UN civil-military relations (CMR) guiding documents.
However, two guidelines, namely, the Oslo Guideline and Asia-Pacific military assistance to disaster relief operations (APC-MADRO) Guideline, https://www.un.org/en/our-work/deliverhumanitarian-aid E-ISSN: 2503-0841, P-ISSN: 2356-4512 [21] are selected for this study due to their relevance to HADR.
a.
The Guidelines on the Use of Foreign Military and Civil Defense Assets (MCDA) in Disaster Relief (Oslo Guideline) Developed in 1994 and revised in 2007, the Guidelines on the Use of Foreign MCDA in Disaster Relief, which is also known as the Oslo Guideline, aim to establish the basic framework for formalizing and improving the effectiveness and efficiency of the use of foreign MCDA in international disaster relief assistance (IDRA).
It is the guidelines intended to create principles and standards that would improve the cooperation and use of MCDA in response to natural, technological and environmental emergencies in peacetime.
17 According to the guidelines, MCDA comprises relief personnel, equipment, supplies, and services provided by foreign military and civil defense organizations for IDRA.
According to the guideline, “military” is a tool that complements disaster management mechanisms to bridge the gap between civilian capabilities and the shortage in emergency disaster needs.
The assistance can be divided into three categories, which are: direct assistance, indirect assistance, and infrastructure support.
The categories are classified based on the degree of contact with the affected population.
Humanitarian assistance must be provided following the basic humanitarian principles of humanity, impartiality, and neutrality.18 However, apart from the three humanitarian principles, other key principles and concepts that should be adhered to are shown in Box 1.
To elaborate on the three humanitarian principles and those in Box 1, Table 2 shows the explanation of each principle.
Source: OCHA.
Oslo Guideline Revision 1.1 November 2007 Table 2: Key principles from Oslo Guideline Principles Explanation Humanity Human suffering must be addressed wherever it is found, with particular attention to the most vulnerable in the population, such as children, women and the elderly.
The dignity and rights of all victims must be respected and protected.
(pr.
20, p. 12) 17 OCHA, Oslo Guideline -Guidelines on the Use of Foreign Military and Civil Defence Assets in Disaster Relief (Revision 1.1 November 2007)., 2007.
18 OCHA.
Box 1: Oslo Guideline and Principles for Military Sector  The last resort principle  Consent and request of the affected states  No cost to the affected states  The unarmed and self-supporting foreign military  Civilian control  Military as the supporter and not encompass direct assistance  Limit in time and scale undertaken by civilian personnel Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [22] Neutrality Humanitarian assistance must be provided without engaging in hostilities or taking sides in controversies of a political, religious or ideological nature.
(pr.
20, p. 12) Impartiality Humanitarian assistance must be provided without discriminating as to ethnic origin, gender, nationality, political opinions, race or religion.
Relief of the suffering must be guided solely by needs and priority must be given to the most urgent cases of distress.
(pr.
20, p. 12) The last resort principle Military and civil defense assets (MCDA) should be seen as a tool complementing existing relief mechanisms in order to provide specific support to specific requirements, in response to the acknowledged «humanitarian gap» between the disaster needs that the relief community is being asked to satisfy and the resources available to meet them.
Therefore, foreign MCDA should be requested only where there is no comparable civilian alternative and only the use of military or civil defense assets can meet a critical humanitarian need.
(pr.
5, p.8) Consent and request of the affected states the United Nations seeks to provide humanitarian assistance with full respect for the sovereignty of states.
As also stated in General Assembly Resolution 46/182: “The sovereignty, territorial integrity and national unity of states must be fully respected in accordance with the Charter of the United Nations.
In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country.” (pr.
21, p. 12) No cost to the affected states Foreign MCDA assistance should be provided at no cost to the affected state, unless otherwise agreed between concerned states or regulated by international agreements.
An Assisting State deciding to employ its MCDA should bear in mind the cost/benefit ratio of such operations as compared to other alternatives, if available.
In principle, the costs involved in using MCDA on disaster relief missions abroad should be covered by funds other than those available for international development activities.
(pr.
27 and 28, p.13) The unarmed and selfsupporting foreign military In principle, foreign military and civil defense personnel deploying on disaster relief missions will do so unarmed and in national uniforms.
The overall responsibility for providing adequate security for authorized foreign MCDA support remains with the affected state.
(pr.
29, p. 13) Civilian control A UN humanitarian operation using military assets must retain its civilian nature and character.
The operation as a whole must remain under the overall authority and control of the responsible humanitarian organization.
This does not infer any civilian command and control status over military assets.
(pr.
32, p. 14) Military as the supporter and not encompass direct assistance Humanitarian work should be performed by humanitarian organizations.
Insofar as military organizations have a role to play in supporting humanitarian work, it should, to the extent possible, not encompass direct assistance, in order to retain a clear distinction between the normal functions and roles of humanitarian and military stakeholders.
(pr.
32, p. 14) Limit in time and scale undertaken by civilian personnel Any use of MCDA should be, at its onset, clearly limited in time and scale and present an exit strategy element that defines clearly how the function it undertakes could, in the future, be undertaken by civilian personnel.
(pr.
32, p. 14) Source: OCHA.
Oslo Guidelines: GUIDELINES ON THE USE OF FOREIGN MILITARY AND CIVIL DEFENCE ASSETS IN DISASTER RELIEF.
Revision 1.1 November 2007 b. APC-MADRO Guideline APC-MADRO Guideline, a living document developed through the APC-MADRO series of conferences, establishes voluntary and non-binding recommendations for member states to deploy their armed forces in response to international disasters and requests for humanitarian assistance.
It also contextualizes the Oslo Guidelines for use in the Asia-Pacific region.
Thus, several principles and concepts are similar to those of the Oslo Guideline (see Box 2).
In line with the Oslo Guidelines, the foreign military does not typically provide direct assistance, E-ISSN: 2503-0841, P-ISSN: 2356-4512 [23] however, it may require a case-by-case assessment in some circumstances.
19 Source: APC-MADRO.
Asia-Pacific Regional Guidelines for the Use of Foreign Military Assets in Natural Disaster Response Operations.
Version 8.01–14/01/14 The guideline also stated the essential features needed for the successful CIMIC in HADR, for instance, the distinct lines of communication, timely information sharing, a collective and coordinated team effort, and mutual trust between the two sectors.
These essential factors can be achieved through civil-military coordination, joint exercises, conferences, workshops, and timely sharing of information (OCHA, 2014, 8).20 NATO: Relevant Guidelines and Related Organs NATO was founded in 1949 and is an intergovernmental military organization consisting of 30 member states.
The fundamental role of an organization is to guarantee the freedom and security of its member countries by political and military means.
The organization has taken an active role in a broad range of operations and missions, including disaster relief operations and missions to protect populations against 19 OCHA, Asia-Pacific Regional Guidelines for the Use of Foreign Military Assets in Natural Disaster Response Operations (Version 8.01 – 14/01/14), 2014.
20 OCHA, 8. natural, technological, or humanitarian disasters.21 In 2001, the civil-military cooperation centre of excellence (CCOE) was established to support NATO’s transformation program as part of the NATO center of Excellence program.
This center of Excellence, which is multinational-sponsored and NATOaccredited, provides innovative and timely advice and subject matter expertise on CIMIC with the primary aim of conceptual and doctrinal development, policy and doctrine, specialized education and training, and contribution to the lessons learned processes.
22 The center created the CIMIC Handbook, which consists of several key knowledge about civil-military interaction (CMI) such as CMI principles, CIMIC in operations, NATO and CIMIC fundamentals, CIMIC activities, information sharing, and the CIMIC center.
As stated in the handbook, CMI principles for an effective CMI include the understanding of non-military actors and respect for civilian 21 For more information, see NATO official website, available from: https://www.nato.int/natoelcome/index.html 22 For more information, see CCOE official website, available from: https://www.cimic-coe.org/ Box 2: APC-MADRO Guideline and principles in line with the Oslo Guideline  Humanitarian principles (humanity, neutrality, impartiality, and independence)  The last resort principle  Consent and request of the affected states  No cost to the affected states  Do no harm  Limit in time and scale Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [24] primacy, mutual information sharing with the willingness and ability to share, 23 act with integrity, unity of purpose, and proactive communication to establish an effective relationship with non-military actors, the awareness of cultural aspects, the promotion of local ownership and capacity, and the preparation for transiting non-military tasks as early as possible.
24 See Box 3 for more information.
Source: CCOE.
CIMIC Handbook.
1.2.2 CMI principles (pp.
3–4) The handbook defined the term “crisis response” to cover the military contribution to peace support, non-combatant evacuation operations, humanitarian assistance, stabilization, and reconstruction.
For the military contribution to humanitarian assistance, stabilization, and reconstruction, the military sector intends to support the efforts of the host nation’s civil authorities.
Nonetheless, although all activities are usually civilian-led missions, the military might be tasked to provide security to facilitate the activities of other actors in insecure circumstances.
25 23 Willingness to share generally revolves around a cultural openness to pursue relationships based on respect, trust and common goals, while the ability to share depend on the established organizational policies and procedures of those involved (CCOE, 7-9).
The ASEAN: Relevant Guidelines and Related Organs The ASEAN was established on August 8, 1967, with the signing of the Bangkok Declaration.
This regional multi-purposed organization comprises three main communities, which are the political-security, economic, and socio-cultural communities.
The political-security community ensures peace and a democratic and harmonious environment in the region, which includes strengthening ASEAN cooperation on disaster management and emergency response.
According to the ASEAN politicalsecurity community blueprint, one of the 24 CCOE, “CIMIC Handbook,” n.d., 3–9, https://www.cimic-coe.org/publications/ccoepublications/field-handbook.
25 CCOE, 6–7.
Box 3: CCOE CIMIC Handbook: Civil-Military Interaction Principles  Understand nonmilitary actors and respect their autonomy in decision-making and so encouraging them to do the same.
Nevertheless, aim at promoting cooperation, reciprocal information sharing, and unity of purpose if circumstances allow.
 Engage, via proactive communication and on respective level, with all nonmilitary actors involved in the operation  Interact with respect, knowledge of respective roles, trust and transparency, and be aware of cultural aspects.
 Incorporate nonmilitary expert advice and factors, if applicable.
 Promote local ownership and build local capacity.
Prepare for transition of nonmilitary tasks as early as possible.
 Ensure internal NATO military coherence and consistent NATO messaging in interacting with nonmilitary actors.
 Operate within the framework of the NATO mission, responsibilities, and authorities and legal obligations.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [25] crucial tasks to achieve the community’s goal is to enhance the civilian-military coordination in providing effective and timely responses to major natural disasters (ASEAN Secretariat, 2009, 14).
Hence, several mechanisms were created, for example, the ASEAN Defense Ministers’ Meeting (ADMM) and ADMM Plus, the Joint Task Force for HADR, ADMM plus experts’ working group on HADR (EWG on HADR), ASEAN military ready group, the AHA Center (Center for Humanitarian Assistance on disaster management), and the ASEAN Center of Military Medicine.
In consideration of the relevant frameworks/guidelines, three documents, namely the ASEAN agreement on disaster management and emergency response (AADMER), ASEAN Standard Operating Procedure for Regional Standy Arrangements and Coordination of Joint Disaster Relief and Emergency Response Operation (SASOP), and ASEAN regional forum (ARF) strategic guidance for HADR, were selected to scrutinize the framework.
a. AADMER In 2005, AADMER was enacted.
It was the first legally-binding Hyogo Framework that established regional policies, and operational and logistical mechanisms for ASEAN member states to seek out and extend assistance in disaster response, consisting of 36 articles, several articles highlighted the principles relating to the roles and regulations of the military in providing aid and the concerns about CMR, as shown in Box 4.
Source: The ASEAN Secretariat.
ASEAN Agreement on Disaster Management and Emergency Response.
Jakarta: ASEAN Secretariat, 2021 b. ASEAN SASOP: Standard operating procedure for regional standby arrangements and coordination of joint disaster relief and emergency response operations ASEAN SASOP was adopted at the 11th ASEAN Committee Disaster Management Meeting held in March 2008.
The Standard operating procedure provides (i) the guides and template to initiate the establishment of the ASEAN Standby Arrangements for Disaster Relief and Emergency Response, (ii) the procedures for joint disaster relief and emergency response operations, (iii) the procedures for the facilitation and use of military and civilian assets and capacities, and (iv) the methodology for the periodic conduct of the ASEAN regional disaster Box 4: AADMER Principles Relating to CMI  Consent and request of the affected states [Article 3: Principles, p. 4 and Article 11: Joint emergency response through the provision of assistance, p. 9]  Military and civilian assets available for the regional standby arrangements of HADR on a voluntary basis [Article 9: ASEAN standby arrangements for disaster relief and emergency response, p. 8]  Unarmed military personnel and related civilian officials [Article 12: Direction and control of assistance, p. 10]  Respect and abide by all national laws and regulations [Article 13: Respect of national laws and regulations, p. 11] Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [26] emergency response simulation exercises.
The roles of the military sectors and CIMIC are displayed in Table 3.
Table 3: ASEAN SASOP and Concerns Relating to CIMIC Sections Contents III.
Disaster preparedness B.
Inventory of earmarked assets and capacities: (ii) military and civilian assets and capacities (p. 5) Military and civilian assets and capacities required for the water and sanitary, medical, transportation, communication, utilities, bulk storage, and staging facilities categories V. Emergency response C. Mobilization of assets and capacities: (i) response time (p. 16) Effective and timely response, Urban Search and Rescue team within 10 hours of notification of mobilization V. Emergency response D. On-site deployment of assets and capacities (p. 21) On-site operational briefing which includes details of the incident command system, the on-going operation, and coordination details.
The military personnel and related civilian officials are not to carry arms V. Emergency response E. Direction and control of assistance (p. 23) The assisting entity conform to the national incident command system of the affected party.
Where military personnel involved, designate a person-in-charge (Head of the assistance) to exercise supervision in cooperation with the appropriate authorities VI.
Facilitation and utilization of military assets and capacities (p. 29) Being developed Source: The ASEAN Secretariat.
SASOP-Standard operating procedure for regional standby arrangements and coordination of joint disaster relief and emergency response operations.
Jakarta: ASEAN Secretariat, September 2021 c. ARF strategic guidance for HADR (draft version 8–March 2010) Developed by members of the ARF, ARF Strategic Guidance for HADR was designed to provide high-level guidance for both civil and military actors in the HADR.
The guidance is intended to promote a common understanding of CIMIC and its coordination procedures.
Since it acknowledges the primacy of sovereignty, it is legally nonbinding and focuses only on emergency response activities, excluding rehabilitation and reconstruction activities (ARF, 2021, Chapter 1).
The guidance defines the term “CIMIC” as illustrated below.
“CIMIC is the coordination and cooperation in support of the military mission between the commander and civil stakeholders, including the national population and local authorities, as well as international, national, and non-governmental organizations and agencies.
CIMIC is a military function establishing relationships with civilian agencies active within the area” (ARF, 2021, 43).
Some chapters in the guidance stated the military involvement in HADR as well as its capabilities and relations with the civilian sector.
In Chapter 2: Characteristics of Disaster, the guidance states that military roles in providing such assistance to the affected states can be categorized into five basic types, which are relief, affected population support, security, technical assistance, and consequence management (ARF, 2021, pr.
213–215).
Military assets stated in Chapter 3: disaster relief are E-ISSN: 2503-0841, P-ISSN: 2356-4512 [27] becoming a major contributor to disaster due to rapid mobilization and logistic capabilities, trained and cohesive workforce, and conducting large-scale tasks at short notice.
In some countries, the military sector plays a primary responsibility for HADR response, while in other countries, it plays only the supporting role directly involved in lifethreatening situations under conditions where there is no comparable civilian alternative.
The military assistance includes 1) transport and logistical support, evacuation, rescue, tactical and strategic heavy-lift 2) deployable engineering and security 3) communications 4) medical services, accommodation, and emergency supplies.
Multi-National Force (MNF) involvement in HADR as stated in Chapter 3, will most likely be limited in scope and duration in the initial response to the immediate life-saving phase and last until the affected state and international humanitarian community can sustain long-term rehabilitation and reconstruction (ARF, 2021, pr.
319–326).
Chapter 4 of the guide presents the role of the military in terms of CMR, command, and control, cooperation and coordination, and an arrangement model.
As stated in paragraph 409, military degrees of authority can be split into three levels: operational control, tactical control, and support.
For the medical services, military health service support can be quickly created to provide preventive medicine, sanitation and disease control, and treatment under harsh field conditions.
The role of the military is to support, not to lead, and must be in concert with civil actors.
Thus, the military command and control structure should be able to coordinate and communicate with all key actors.
Military liaison officers who were trained in politicalmilitary affairs are expected to reach this goal (ARF, 2021, pr.
406–423).
Discussion Before considering the key aspects of all selected relevant legal frameworks or guidelines from three different international organizations, it is necessary to detect the characteristics of each organization to comprehend the specific manner found in each framework/guideline.
The UN is a global multi-purposed organization that consists of both developed and developing member states in the world.
However, the birth of this organization attached closely to the roles of Western superpowers.
Therefore, NATO is a regional organization that consists of Western member states.
Unsurprisingly, the power of Western ideas/concepts can be noticed in the aspects of the two selected UN guidelines and one of the NATO.
Contrarily, ASEAN, a multi-purposed regional organization in the Southeast Asia region, can be specified as a non-Western organization.
However, with ASEAN developing member states, ASEAN’s ways of thought and social contexts might be different from those of the UN and NATO.
The key features of all selected guidelines, similarities, and differences can be recognized and compared, as displayed in Table 4.
From Table 4, there are some common values and practices for the foreign military sector in providing humanitarian assistance to the affected states, as highlighted by the same colors.
Nonetheless, the major differences can be found in the selected documents of ASEAN.
To summarize and clarify these points, Table 5 is created Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [28] Table 4: The Comparison of Key Specific Features, Fundamentals, and Principles for Military Sectors in Providing HADR Key fundamentals and principles UN NATO ASEAN Oslo APC-MADRO NATO CIMIC Handbook AADMER ASEAN SASOP ARF guidance  Humanitaria n principles (humanity, neutrality, impartiality, independence )  The last resort principle  Consent and request of the affected states  No cost to the affected states  The unarmed and selfsupporting foreign military  Civilian control  Military as the supporter and not encompass direct assistance  Limit in time and scale  Humanitarian principles (humanity, neutrality, impartiality, independence)  The last resort principle  Consent and request of the affected states  No cost to the affected states  Limit in time and scale  Foreign military does not typically provide direct assistance but may require a case-by-case assessment  Successful CIMIC > distinct lines of communicatio n, timely information sharing, a collective and coordinated team effort, and the mutual trust through civil-military coordination, joint exercises, conferences, workshops, and information exchanges  Humanitarian principles (humanity, neutrality, impartiality, independence)  The last resort principle  Consent and request of the affected states  Civilian primacy  The preparation for transition of non-military tasks as early as possible  Successful CIMIC > trust & respect between civilmilitary relations, the reciprocal information sharing, proactive communicatio n, the awareness of cultural aspects  Consent and request of the affected states  The unarmed military personnel  Respect and abide by all national laws and regulation s  The military personnel and related civilian officials are not to carry arms  Conform to the national incident command system  Military and civilian assets and capacities required for the water and sanitary, medical, transportation, communicatio n, utilities, bulk storage and staging facilities categories  Effective and timely response within 10 hours of notification of mobilization  Military assets as a major contributor to disaster  Shortduration and limited scope for MNF  Military roles > relief, affected population support, security, technical assistance, and consequence management  (Some states) military sector plays the primary responsibilit y for HADR response  (In other countries), it plays only the supporting role, directly involved solely in lifethreatening situations under very specific conditions  The military command and control structure should be able to coordinate and communicat e with all key actors E-ISSN: 2503-0841, P-ISSN: 2356-4512 [29] Table 5: Key Fundamentals/Principles and Their Existence in the Selected Frameworks/Guidelines Contents UN NATO ASEAN Oslo APCMADRO NATO AADMER SASOP ARF Humanitarian principles: Humanity, impartiality, neutrality, and independence       Principle: The last resort principle    Principle: No cost and do no harm   Principle: Civilian control   Foreign military: Consent and request of the affected states       Foreign military: Unarmed and self-supporting military    Foreign military: Limit in time and scale    MNF CIMIC: Information sharing       CIMIC: Mutual trust, respect, and understanding       CIMIC: Proactive communication       CIMIC: Unity of efforts       CIMIC: Command and control (C2) Not specified C2 system Mentioned military C2 structure Military as the key direct providers of aids  Military as the supporter and indirect assistance    Military assets as a major contributor to disaster  Several common fundamentals from every selected guideline, for the foreign military in IDRA, include the humanitarian principles of humanity, impartiality, neutrality, and independence; the no cost and do no harm principle; the consent and request of the affected states; the unarmed and selfsupporting military; and the limit in time and scale.
Concerning the effective CIMIC, some key factors are stated in the selected frameworks, including the matter of information sharing; mutual trust and respect; proactive communication; and the unity of efforts.
However, the major different aspects concerning the status of military and military assets in HADR, as well as the principle of last resort, are apparent.
While three frameworks of Western-oriented organizations like the UN and NATO stated that the military should play a supporting role by providing the indirect assistance to the victims and rely on the last resort principle, a non-Western organization like ASEAN seems to accept the status of the military sector as the key direct provider of aids and tends to compromise the last resort principle due to military capacities.
The other debatable issues would be the concepts of civilian control, the suitable command and control (C2) system, and the limit in time and scale of the military sector, both foreign and national.
Box 5 and 6 display the abovediscussed subjects.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 16-32 [30] Although the guidelines aim to design for the international disaster relief operation with the principles for foreign military and civilian actors in providing aid to the affected nations, there are some useful points that national military and civilian sectors should employ.
The key to achieving this success is due to the effective CIMIC, and the effective CIMIC derives from the appropriate CMR (CIMIR).
A good relationship can be enhanced based on mutual trust, respect, and understanding.
Hence, proactive suitable communication through an appropriate C2 system and effective information sharing between each other is required.
When there is mutual trust, there will be a unity of efforts.
Subsequently, success can be achieved.
IV.
Conclusion And Suggestions HADR is a multi-stakeholders mission.
For a successful operation, both the civilian and military sectors should find ways to cooperate effectively.
Several frameworks/guidelines were issued by some international organizations, providing key principles and fundamentals for CIMIC in HADR.
Some common principles can be found and different fundamentals noticed.
However, some controversial matters still need to be clarified.
The last resort principle is the role of the military in providing direct assistance, duration, and scope of military operation, and the C2 system should be flexible enough and compromise with emergencies and the conditions of affected countries.
Military capability can be used to help people either in the shortor long-term period.
If being the first on the ground is one of the key indicators to achieving the humanitarian goals, then the military’s capability should not be limited by the principle of the last resort.
Nevertheless, since the C2 system, which is designed to ensure that all resources and tasks are allocated most effectively, it can guarantee the success of relief operations using either Box 5: Foreign Military: Common Fundamentals  Humanitarian principles: Humanity, impartiality, neutrality, and independence  Principle: No cost and do no harm  Foreign military: Consent and request of the affected states  Foreign military: Unarmed and selfsupporting military  Foreign military: Limit in time and scale  CIMIC: Information sharing  CIMIC: Mutual trust, respect, and understanding  CIMIC: Proactive communication  CIMIC: Unity of efforts Box 6: Debatable Issues  Principle: The last resort principle [foreign military and national military/developing countries]  Principle: Civilian control [foreign military and national military]  CIMIC: Command and control (C2) > incident commander system, joint command and control, etc.
 National military: Limit in time and scale  Military: Key direct providers of aids  Military: The supporter and indirect assistance  Military assets as a major contributor to disaster E-ISSN: 2503-0841, P-ISSN: 2356-4512 [31] military or civilian command form.
However, it is important to note that no single C2 option works best for all HADR.
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[1] Sentencing over Objection to Mobilization as Military Reserve: An analysis of National and International Laws Abdul Madjid Faculty of Law, Universitas Brawijaya Email: majid@ub.ac.id DOI: http://doi.org/10.21776/ub.blj.2022.009.01.01 Submitted: 2022-01-28 | Reviewed: 2022-03-26 | Accepted: 2022-04-09 | Published: 2022-04-30 How to Cite : Madjid, Abdul.
2022.
“Sentencing over Objection to Mobilization as Military Reserve: An Analysis of National and International Laws”.
Brawijaya Law Journal 9 (1):1-15. https://doi.org/10.21776/ub.blj.2022.009.01.01.
Abstract: Law Number 23 of 2019 concerning National Resource Management for State Defense does not regulate conscientious objection, which refers to the right of a person to refuse to participate in a war or military service on the grounds of religion and morality.
Their absence in such services is replaced by other responsibilities such as working in public health services, providing security, and being involved in other social services.
Article 77 Paragraph (1) of Law Number 23 of 2019 expressly provides for sentences that should be imposed on those who refuse to serve as a military reserve, where the rule is not in accordance with the principle of conscientious objection which gives a person the right to refuse on the basis of conscience.
This research discusses the legal consequences of the enactment of two rules regarding military service and the application of different conscientious objections.
This study applied normative juridical methods and approaches to examine the consistency and relevance of various statutes and government regulations that govern conscientious objection.
This study also used conceptual and statutory approaches to explore why conscientious objection is considered a ground for refusal to participate in conscription according to International Human Rights Law.
The findings revealed that the conception of defense and compulsory military service in Indonesia does not leave any chance to guarantee the rights of citizens to refuse to participate in military service according to the conscience and belief of every individual (conscientious objection).
This is in contrast to the regulatory provisions of international human rights ratified by Indonesia under the International Covenant on Civil and Political Rights.
Additionally, there is a need for clear arrangements regarding conscientious objection and the requirements that must be met by citizens who submit these principles for the rejection of military service in Indonesia.
Keywords: sentence; conscientious objection; mobilization; military reserve.
I.
Introduction Each state is required to give attention to state defense in international relations, including the influences or interruptions coming from other states that may threaten the sovereignty of a state.
Activities through the diplomacy 1 A. Cottey and A. Forster, “Reshaping Defence Diplomacy: New Roles for Military Cooperation of defense strengthen the partnership between states and grow the influences and interests brought by dominant players in global politics.
Cottey and Forster elaborated diplomatic activities in defense as follows:1 and Assistance,” in Adelphi Paper No 356 (New York: Oxford University Press, 2004).
mailto:majid@ub.ac.id http://doi.org/10.21776/ub.blj.2022.009.01.01 https://doi.org/10.21776/ub.blj.2022.009.01.01 Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [2] a. bilateral and multilateral relations between senior and civil military defense officials b. deployment of defense attachés in another state c. bilateral defense partnership agreements d. training for foreign military personnel and civil personnel of defense e. improving suggestions on democratic control over armed forces, defense management, and military engineering f. exchange of military personnel and military unit and battleship visit States have taken several measures to reinforce their state defense within their military forces.
One of these measures, implemented through national policies, is related to state military reinforcement.
Indonesia is one of the states that have comprehensive national policies concerning state defense.
One of the regulations reinforcing Indonesia’s defense refers to the policy concerning military reserve as a reflection of conscription or state defense.
In terms of conscription, Indonesia has a long history of struggles for its independence, and the doctrines of universal defense are provided for in the 1945 Constitution of the Republic of Indonesia (UUD 1945).
From history, it is obvious that Law Number 66 of 1958 concerning conscription governs the rights of citizens to refuse to participate in conscription implicitly according to their conscience, which is described as conscientious objection.2 Citizens’ refusal to participate in military service, as stated in the statute, involves reasons such as health and education.
The Conscription Law also regulates the basis for refusal as well as 2 Endro Tri Susdarwono, “Analisis Terhadap Wajib Militer Dan Relevansinya Dengan Rancangan Undang-Undang Komponen Cadangan,” Khatulistiwa Law Review 1, no.
2 (2020): 134. appeals against a decision of the selection of the participants of conscription.
Indonesia enacted regulations concerning military reserve to realize the practice of conscription or state defense, as outlined in Article 28, Section IV of Law Number 23 of 2019 concerning National Resource Management for State Defense.
The military reserve constitutes citizens, natural resources, artificial resources, and national infrastructure and facilities, and it is set to help manage national resources within the confines of national defense to tackle threats that may come from military and nonmilitary sources.
Law Number 23 of 2019 concerning National Resource Management for State Defense also regulates sanctions for objectors, specifically Article 77 Paragraph (1), which states: “Every person in military reserve intentionally refusing to come to the call of military mobilization or committing deception to divert himself/herself from the mobilization as intended in Article 66 Paragraph (1) is subject to four-year imprisonment.”3 However, Law Number 23 of 2019 concerning National Resource Management does not include any regulatory provisions concerning the rights of citizens to refuse to participate in conscription on the grounds of belief and conscience, which is commonly known as the right of conscientious objection under International Human Rights Law.
Black’s Law Dictionary defines conscientious objection as follows: “A person who for moral or religious reasons is opposed to participating in any war, and who may be excused from military conscription but remains 3 Article 77 Paragraph (1) of Law number 23 of 2019 concerning National Resource Management for State Defense E-ISSN: 2503-0841, P-ISSN: 2356-4512 [3] subject to serving in civil work for the nation’s health, safety, or interest.” Therefore, conscientious objection refers to the right of a person to refuse to participate in wars or military service due to moral and religious grounds.
Following this refusal, the person concerned may be transferred by the state to other civil tasks in public health services, security, and any other social services to compensate for missed military service.
In line with the above definition, Article 1 of Human Rights Commission Resolution of the United Nations (UN) Number 77/1998 defines conscientious objection “as the right of every person to refuse to participate in military service because of conscientious objection and religious grounds as stipulated in Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights”.4 Conscientious objection to military service stems from the conscientious principle emerging from morality, ethics, humanity, and religion.5 Conscientious objection is also recognized in every individual who intends to participate in military service.
The International Covenant on Civil and Political Rights was ratified by Indonesia through Law Number 12 of 2005 concerning the Ratification of the International Covenant on Civil and Political Rights.
Forceful conscription, which may involve prosecuting and sentencing (imprisonment or capital punishment) those who refuse, is seen 4 Elizaveta Chmykh et al., “Legal Handbook on The Rights of Conscripts,” in Legal Handbook on The Rights of Conscripts (Geneva: DCAFGeneva Center for Security Sector Governance, 2020), 55. see also: CCPR General Comment No 22 5 Conscientious Objection to Military Service (New York: United Nations, 2012), 7–9.
by the UN as a violation of human rights, especially the right to live, the right to freedom and safety, the right to freedom of thought, the right to belief and conscience, and the right to religion.
In 1960, the Human Rights Commission of the UN, represented by the Sub-commission of Improvement and Protection of Human Rights, scrutinized the issue of the right to refuse to participate in conscription as a right recognized as part of the freedom of religion and belief that must not be discriminated.
The issue was then discussed in a meeting with the theme “The Role of Youth in the Protection and Promotion of Human Rights,” which discussed the right to refuse military service.
At that time, the sub commission appointed two special rapporteurs.
The recommendations made at the meeting were a) “States must recognize (through law):6 (a) the right of persons who for reasons of religious, ethical, moral, humanitarian or other similar beliefs refuse to perform military service; and b) In view of the objections to military conscription that in the past military force was often used to carry out the agenda of apartheid and ethnic cleansing (genocide) as well as for the illegal occupation of foreign territories, it is advisable for the state to absolve from military service”.
Issues regarding the right to refuse military service continue to arise in the practice of countries that implement compulsory military service.
This military service aims to strengthen a country’s defense when there is a threat, especially during armed conflict 6 “The Role of Youth in the Promotion and Protection of Human Rights, Including the Question of Conscientious Objection to Military Service, Adopted at the 60th Meeting on 11 March 1992,” UN Commission on Human Rights, n.d., https://www.refworld.org/docid/3b00f0c618.html.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [4] against the other country.
Indonesia has such regulations pertaining to military service in an effort to utilize human resources for national defense as expressed in Law No.
23 of 2019 concerning Management of National Resources for national defense.
Conscientious Objection Indonesia has ratified the International Covenant on Civil and Politics.
The validity of the practice is discussed when individuals refuse to participate in conscription simply to follow their conscience and beliefs that hold them back from getting involved in any forms of violence, the use of weapons, and murder.
When this is the case, the people refusing to do so are not appropriately protected because of the absence of regulatory provisions concerning conscientious objection, and they are prone to sentencing as outlined in Article 77 Paragraph (1) of Law Number 23 of 2019 concerning National Resource Management for State Defense.
Therefore, analyzing the policy regarding sentencing over refusal to military mobilization as a military reserve and the perspective of international and national laws and their juridical implication is essential.
This analysis applies normative juridical methods, an approach used to examine legal systems as well as the consistency between statutes and their relevance.
This study also applied conceptual and statutory approaches to analyze the law concerning conscientious objection as a ground to refuse conscription according to International Human Rights Law.
II.
Legal Materials and Methods This article comprises a normative legal research utilizing the legal conceptual approach and the statute approach.
The primary legal materials that were utilized are international regulation and Indonesian regulation related to conscientious objection and military service.
This article also utilized the legal material analysis technique of prescriptive analysis and legal syllogism and a conceptual approach to draw conclusions.
III.
Result and Discussion The Right to Conscientious Objection from the Perspective of International and National Laws a.
Provisions regarding Conscientious Objection under International Law Since the mid-19th century, the term conscientious objection has been used to refer to those refusing to participate in conscription as they follow their conscience.
Two of the published works known to have been relevant to conscientious objection back in the century are the report by the New York Assembly Committee on the Militia and the Public Defense Report Number 170, 4 March 1841.
This publication is intended to assist civil society and non-governmental organizations in the defense of rights based on conscience and provide a better understanding of these rights.
The Concise Oxford English Dictionary (twelfth ed.)
defines the word “conscience” as “an inner feeling or voice viewed as acting as a guide to the rightness or wrongness of one’s behavior.” Conscientious objection applies not only to militia but also to other purviews demanding the involvement of moral decisions such as in law, medicine, and the development of nuclear technology for the sake of state defense (notably, in some cases, some people decided to quit from the development of nuclear weapons following their awareness of the danger it poses to humanity).
However, since the mid-20th E-ISSN: 2503-0841, P-ISSN: 2356-4512 [5] century, the term conscientious objection has been specifically used to refer to the refusal to conscription following a conscientious consideration or belief.
The definition of conscientious objection also stems from legal experts and philosophers.
Peter Rowe, a professor of military law and humanitarian law at Lancaster University, agrees with the two definitions above.
He contends that the implementation of conscription should also accommodate conscientious objection as the right to believe that is owed to every individual in armed forces among other rights such as the right to worship, to congregate, and to be involved in an organization, which are all rights guaranteed by instruments of human rights and recognized in military routines.
The Head of International Community for Military Law and War Law, Peter Brock, confirms that conscript soldiers refusing military service simply because they follow their conscience can offer other services such as noncombatant military service or civilian alternative service.
Therefore, conscientious objectors (COs) can skip military service.
Kees Bertens, a professor of philosophy and ethics at Universitas Atmajaya, has defined conscientious objection as the right to refuse to participate in conscription as a compulsory task a citizen has to meet due to conscience.
Bertens further defined such a person as a CO.7 The implementation of conscription in several states, which comes with the prosecution against the refusing individuals and sentencing (imprisonment and capital punishment), is seen by the UN as a violation of human rights, especially the right to live, the right to freedom and safety, the right to 7 Kees Bertens, Etika (Jakarta: Gramedia Pustaka Utama, n.d.).
the freedom of thought, the right to believe and to follow one’s conscience, and the right to religion.
Following this perspective, in 1960, the Human Rights Commission of the UN, represented by the Sub-commission of Improvement and Protection of Human Rights, scrutinized the issue regarding refusal to conscription being recognized as part of the right to freedom of religion and belief that no one should be discriminated.
In 1970, this issue was agreed upon by the Human Rights Commission of UN in a meeting agenda “Peran Kaum Muda dalam perlindungan dan Pemajuan Hak Asasi Manusia,” which discussed the right to refuse to serve in the military.
In 1981, the SubCommission brought two petitioners who submitted their final petition in 1984.
This petition encouraged states to recognize under their laws: a.
A person’s right to refuse to serve in the military on the grounds of religion, ethics, morality, humanity, or belief.
The state should voice the right to refuse for those with beliefs that restrict them from serving in the military under any circumstances.
b.
The person’s right to be exempt from military service/conscription due to the awareness of violence and the violation of human rights caused by the war, recalling that in the past, the military was often used to give way to apartheid, genocide, and illegal occupation.
c. The person’s right to be exempt from joining armed forces due to concerns regarding the use of mass destruction weapons and other types of weapons proscribed by international law because they may cause humans to unnecessarily suffer.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [6] In 1987, the Commission adopted Resolution 1987/46, encouraging states to recognize the right to refuse to participate in conscription, which also considers the right to freedom of thought, the right to belief, and the right to religion.
Furthermore, in 1989, the right to this refusal was recognized by the Commission in Resolution 1989/59, which encouraged states to draft a statute intended to give exemption to COs from military service to ensure their human rights would remain protected.
The Commission’s views on the right to refuse to participate in conscription are based on Article 3 and Article 18 of the UDHR regarding the right to live, the right to freedom and safety, the right to the freedom of thought, the right to belief, and the right to religion.
In 1993, through Resolution 1993/84, the Commission encouraged states that required conscription for citizens to have substitutes for the conscription to accommodate noncombatant civilians, and the states were to ensure that these substitutes would not be seen as a punishment.
The UN Human Rights Committee issued General Comment Number 22/1993 of Paragraph 11, which evaluated the implementation of ICCPR, especially for the right to the freedom of thought, to religion, and to use of conscience: “The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article18, in as much as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.” Since the compulsory requirement for citizens to join armed forces is likely to raise conscientious objection issues, there should be a complaint mechanism available.
The Committee asserted that the guarantee of the right to conscientious objection must be ensured in terms of all responsibilities in the armed forces.
The case of Paul Westerman v. the Netherlands brought about the term “total objector,” meaning that not only do citizens have the right to refuse to join any armed forces, but they may also refuse other forms of military service, including noncombatant ones.
Westerman, whose petition was turned down by the government, had to serve a ninemonth jail sentence because he refused to wear a military uniform and comply with military rules.
In this case, he should have been considered a CO.
In 1995, the Human Rights Commission of the UN in Resolution 1995/83 further moved to offer protection to those refusing to join conscription that is legally inextricable from the right to the freedom of thought, the right to belief, and the right to religion as guaranteed under Article 18 of the UDHR and Article 18 of ICCPR.
The Commission further strengthened the protection of the right to refuse to join conscription (conscientious objection) under Resolution 1998/77, issued on 22 April 1998 in the 58th session of the Commission.
Resolution 1998/77 confirms that conscientious objection is a legal part of the right to the freedom of thought, the right to belief, and the right to religion, considering that citizens selected for conscription may choose to refuse.
The Commission suggested that states should set institutions responsible for making independent and impartial decisions on whether a CO has the attention they need and ensuring that their needs are met and they are not discriminated against.
Under international law, conscientious objection is recognized under Article 1 of the E-ISSN: 2503-0841, P-ISSN: 2356-4512 [7] Commission on Human Rights Resolution of the UN Number 77/1998, which states:8 “Draws attention to the right of everyone to have conscientious objections to military service as a legitimate exercise of the right to freedom of thought, conscience and religion, as laid down in Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights” This right is part of the right to the freedom of thought, the right to follow one’s conscience, and the right to religion, as outlined in Article 18 of the UDHR and Article 18 of ICCPR.
This principle was derived from the principles regulating the right to follow one’s conscience, including the belief emerging from morals, ethics, humanity, and religion, and it is recognized for every individual to perform their tasks.
Articles 5 and 6 of Resolution 1998/77 require each state to take measures to refrain from imposing any sentencing or punishment on COs following their refusal to conscription.
These measures are intended to protect the economic, social, cultural, civil, and political rights of the citizens.
Article 4 of the Resolution encourages states that make conscription compulsory in the absence of regulatory provisions concerning conscientious objection to ensure that alternative civilian service is made available for the sake of public interest.
Civilian service may involve social work and other public services relevant to the COs, and this alternative must not be seen as punishment.
In circumstances where COs are forced to leave their states due to the threat of punishment imposed by the government or 8 Commission on Human Rights, Resolution 1998/77.
due to fear of possible prosecution or torture following their refusal to conscription amidst the absence of the regulatory provisions concerning conscientious objection, Resolution 1998/77 encourages other states to grant them asylum by referring to the 1951 Refugee Convention, which also serves as a juridical basis of the Resolution (Article 7 of the Resolution).
Resolution 77/1998 also recommends that states with conscription should provide information on the status of COs, procedures, and requirements to receive the status for citizens serving conscription, including armed forces.
Every person also has a chance to get the status of a CO before, during, and after he/she serves the conscription or military service (Article 8 of the Resolution).
In terms of the regulatory provisions concerning conscription set by states that come along with criminal sentencing regarding the refusal to conscription, the UN views these as being a violation of human rights, especially the right to live, the right to freedom, and safety.
This explains why the UN held sessions to scrutinize and formulate regulations regarding the right to refuse to join conscription.
Regarding conscientious objection and the essence of the implementation of this principle in conscription, Peter Rowe, among other experts, asserts that the practice of conscription should constitute conscientious objection as the right to belief along with the right to worship, to congregate, and to participate in an organization of those in armed forces, all of which are recognized as Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [8] human rights and form part of military routines.9 Under circumstances where conscript soldiers have a chance to pick noncombatant military service or civilian alternative service, military law and the law of war restrict them from refusing to serve in military service due to conscience.10 States recognize the right to conscientious objection to military service by implementing policies that allow citizens to pick alternatives to military service.
The right to conscientious objection was observed by several states even during world war.
During World War II, conscript soldiers were widely used, and this condition led to the birth of policies concerning conscientious objection, especially in states that deployed conscript soldiers.
Many states have also enacted national legislations that govern conscientious objection, and some have even entrenched this right in their constitutions.
This is further corroborated by the fact that states practicing conscription have ratified and adopted the UDHR and ICCPR, meaning that they must also protect the right to conscientious objection.
b.
Provisions of Conscientious Objection in National Law Indonesia ratified the International Covenant on Civil and Political Rights through Law Number 12 of 2005 and adopted the Universal Declaration of Human Rights through Law Number 39 of 1999 concerning human rights.
Notably, the rights protected by these two instruments also include the right to conscientious objection.
9 Peter Rowe, The Impact of Human Rights Law on Armed Force (New York: Cambridge University Press, n.d.).
10 Ibid.
Conscientious objection is related to policies governing conscription that have been adopted by the Indonesian government.
Conscription features in the history of Indonesia, starting from its independence, when the doctrine of universal defense was recognized in the 1945 Constitution of the Republic of Indonesia.
However, the right to conscientious objection is not fully protected because of the influential concept of compulsory state defense that features in the doctrine of universal defense.
Three philosophical grounds justify the enforcement of conscription in Indonesia, namely, the universal defense of Indonesia, state defense, and si vis pacem para bellum.11 The first ground refers to the system of state defense whose implementation is based on the awareness of the rights and obligations of all citizens, the belief in an individual’s capacity to survive, and the need to protect the sovereignty and independence of Indonesia.12 The use of the term universal in these circumstances implies the involvement of all citizens and all national resources, national infrastructure, national facilities, and all areas of Indonesia as a whole unity of defense.
In other words, all national resources are empowered to support state defense.
The second ground refers to the enforcement of conscription as the responsibility of Indonesian citizens.
The implementation of the state defense concept represents demands toward citizens to embrace nationalism or a sense of belonging to the state, as governed by positive law in Indonesia, which protects people’s rights and imposes obligations that 11 A. Ridwan Halim, Evaluasi Kuliah Filsafat Hukum (Jakarta: Ghalia Indonesia, 1987), 226.
12 Buku Putih Pertahanan Indonesia 2008 (Departemen Pertahanan Republik Indonesia, 2008), 45.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [9] they should fulfill.
State defense is embodied in the system of universal state defense that responds to military threats by positioning Indonesian Armed Forces as the main defenders backed up by military reserve and other supporting components such as citizens, natural resources, artificial resources, and national infrastructure and facilities.
The third philosophical ground refers to the adage si vis pacem para bellum, meaning whoever upholds peace and love should be prepared for war or, in other words, a “fight is the only way and it knows no limit to bring peace.”13 Military defense mainly constitutes the utilization of national resources, including the function of military defense within the framework of facing military threats that may be represented by military reserve and supporting reserve and within the framework of civil defense, according to the function and authority of government institutions outside defense.14 Departing from these three philosophical grounds, the Indonesian government came up with a regulation-making process concerning conscription for citizens of Indonesia.
Law Number 66 of 1958, in article 12 part 1 (d), allows citizens to raise their objections against conscription according to their beliefs and human rights.
This provision protects the right to conscientious objection as regulated in Article 10 of Conscription Law, which states that conscription is not for those with certain circumstances or those who may suffer from it when they are forced to join the conscription.15 13 Departement of Defense of the Republic of Indonesia; Regulation of the Minister of Defence Number Per/23/M/XII/2007 concerning Doctrine of State Defense.
This regulation also applies to those holding official positions in religious or humanity organizations that do not allow participation in conscription.
In 2019, the Indonesian government drafted Law Number 23 of 2019 concerning National Resource Management for State Defense, which replaced Law Number 66 of 1958 concerning Conscription.
Law Number 23 obligates citizens to serve as a military reserve as a form of conscription and state defense carried out by citizens.
Military reserve is regulated by Section IV of Law Number 23 of 2019 concerning National Resource Management for State Defense.
Article 28 of the law describes military reserve as constituting citizens, natural resources, national artificial resources, and national infrastructure and facilities, all prepared for the management of national resources for state defense to face military, nonmilitary, and hybrid threats.
Article 77 (1) of Law Number 23 also governs sanctions:16 “Every person in military reserve intentionally refusing to come to the call of military mobilization or committing deception to divert him/her from the mobilization as intended in Article 66 Paragraph (1) is subject to four-year imprisonment” The above statement implies that this statute does not protect citizens’ right to refuse to join conscription on the grounds of belief and conscience or, as it is commonly referred to under International Human Rights Law, the right to conscientious objection.
However, Indonesia protects this right under national regulations preceded by ratifications of 14 Ibid p. 46 15 Article 10 of Law Number 66 of 1958 concerning Conscription 16 Article 77 of Law Number 23 of 2019 concerning National Resource Management for State Defense Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [10] international instruments such as ICCPR and international human rights conventions.
The absence of regulatory provisions concerning citizens’ right to conscientious objection is likely to result in a violation of human rights.
This statute asserts that those above eighteen, working as civil servants, working in private institutions, or are exarmy soldiers, are required to serve in military reserve and participate in military training.
Members of military reserve are distributed to the Indonesian navy, army, and air force and deployed to battlegrounds to offer support to the Indonesian Armed Forces.
Therefore, those involved in military reserve are combatant members, and they must comply with the provisions of military law and international law of war.
Those who refuse to participate in conscription are not offered any form of protection, and they are prone to a jail sentence and other prosecutions.
Notably, the absence of clear provisions regulating conscientious objection in Law Number 23 of 2019 is likely to lead to this unfair situation.
This study explores the concept of the right to conscientious objection as part of human rights and the chance and the challenge given by the implementation of the international community, especially in Indonesia, which is a state that recognizes the obligation of state defense.
The sentence imposed on those who refuse to participate in conscription is contradictory to what has been adopted and ratified by Indonesia.
Several international human rights instruments governing conscientious objection serve as the basis for states to make policies governing conscription.
Article 18 of 17 Article 18 of The Universal Declaration of Human Rights.
the Universal Declaration of Human Rights states:17 “Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.” Furthermore, Article 18 of the International Covenant on Civil and Political Rights states:18 a.
Everyone shall have the right to freedom of thought, conscience, and religion.
This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching.
b.
No one shall be subject to coercion that would impair his freedom to have or to adopt a religion or belief of his choice.
c. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
d. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children conform with their own convictions.
Both articles mention several rights that are guaranteed by the state under national 18 Article 18 of International Covenant on Civil and Political Rights.
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [11] regulations, and these forms of freedom apply to all regulatory provisions governing citizens and their obligation to join conscription.
The Human Rights Council Resolution Number 24/77 of 2013 states that “each state has to take measures to refrain from imposing any sentencing or punishment on COs following their refusal to conscription and from repeated sentencing, and the state should be aware that repeated sentencing violates the principle of nebis in idem.” Resolution 1998/77 asserts that conscientious objection is a valid part of the right to freedom of thought, the right to belief, and the right to religion, and it encourages those in military service to exercise their right to conscientious objection.
The Commission asserts that states should establish institutions responsible for making independent and impartial decisions when ascertaining whether conscientious objection has been rightfully exercised.
Additionally, states are required to take into account the needs of COs and ensure that the objectors are not discriminated against.
Articles 5 and 6 of Resolution 1998/77 assert that states should refrain from imposing any punishment and condemnation on COs following their refusal to conscription.
This is intended to guarantee the protection of the economic, social, cultural, civil, and political rights of citizens.
Article 4 of the Resolution encourages states that make conscription compulsory, especially states that have no regulations governing conscientious objection, to allow citizens to provide alternative services to compensate for the missed conscription.
Alternative services may include social work and public services relevant to the needs of the COs, and these services must not be seen as a punishment.
Considering the provisions of Article 18 of the UDHR and Article 18 of ICCPR, it can be argued that Law Number 23 of 2019 concerning National Resource Management for State Defense does not guarantee citizens’ rights to conscientious objection.
Furthermore, Article 77 of Law Number 23 criminalizes conscientious objection to military service and prescribes a four-year jail term for COs.
This article is a clear indication that some national laws contradict the provisions of the international instruments that Indonesia has adopted and ratified, such as the UDHR and ICCPR.
This certainly has juridical implications on the enforcement of the policies set by the government concerning the obligation of citizens to serve in the military.
Juridical Implications of the Legal Loophole in Regulations Governing Conscientious Objection to Mobilization in Military Reserve in Indonesia The policy of the Indonesian government concerning military reserve, as reflected in Law Number 23 of 2019 concerning National Natural Resource Management for State Defense, violates the right to conscientious objection implied in the UDHR and ICCPR, which are both international instruments adopted and ratified as part of national law in Indonesia.
This raises questions as to the juridical implication of the enforcement of the policy governing military reserve since Indonesia is bound by the international instruments it has ratified.
When deciding whether a treaty is considered a law within a national system, states follow the incorporation doctrine or a transformation approach.
Selecting doctrines is deemed to be part of an internal procedure for ratifying a treaty.
As a regulation that further governs the formulation of Article 11 Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [12] of the 1945 Constitution of the Republic of Indonesia, which states that “the President with the approval of the House of Representatives declares war, makes peace and treaties with other countries,” more specific rules about the internal procedure of the ratification of treaties in Indonesia is governed by Article 9 Paragraph (2) of Law Number 24 of 2000 concerning treaties, which states that “The approval of treaties as intended in Paragraph (1) is given under a statute and presidential decree.” This provision is perplexing because it combines both internal and external ratification procedures.
It seems to imply that a treaty can be ratified through both internal and external procedures under a statute or presidential decree yet it is not a statute or presidential decree that ratifies a treaty; it is ratified by instruments of ratification/accession/acceptance/approval made by the minister of foreign affairs.
Statutes and presidential decrees only represent the internal procedures of ratification.19 Under article 9 of Law Number 24 of 2000 concerning international treaties does not completely discuss the substance of the internal procedures followed in the ratification of treaties.
Consequently, there are several interpretations of this provision becoming an obstacle in the implementation of rules.
The first interpretation opines that a statute or presidential regulation ratifying a treaty transforms a treaty into national law.
The second interpretation suggests that a statute or presidential regulation results from the approval given by the DPR and the 19 Damos Dumoli Agusman, Hukum Perjanjian Internasional Kajian Teori Dan Praktik Indonesia (Bandung: Refia Aditama, 2010), 76–78.
20 Article 2 subsection (1) b Vienna Convention on The Law of Treaties 1969 states: ““ratification,” President incorporating a treaty into national law.
Therefore, treaties should apply in Indonesia in their original conditions as is the norm under international law.
The last interpretation sees a statute or the appointment of a president as a representation of the approval of the DPR or President to be bound to treaties.
That is, Indonesia needs another specific legislative product to convert the substance governed in a treaty into national law.
These varied interpretations, especially the third interpretation, clearly indicate that Law Number 24 of 2000 concerning treaties does not separate internal and external procedures of treaties in Indonesia.
The ratification understood in the statutory theories is far different from that of the external procedures.
Additionally, the ratification given by the DPR in the form of treaty ratification law is not about the binding of treaties; that is, it does not reflect what is intended in Article 2 (1) b of the Vienna Convention on the Law of Treaties 1969.20 The varied interpretations about the status of treaties in the system of national law in Indonesia and the mechanism of the enforcement of treaties in the legal system in Indonesia are an indication that Article 11 of the 1945 Constitution of Indonesia needs urgent revision to give legal protection to international law in general and treaties in specific.
The revision of Article 11 of the 1945 Constitution of the Republic of Indonesia should embrace the following provisions: a.
The authority of the president to negotiate and sign treaties with other states “acceptance,” “approval” and “accession” mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a Treaty E-ISSN: 2503-0841, P-ISSN: 2356-4512 [13] b.
Approval from the DPR in the internal ratification of treaties.
This approval should not be made in the form of a statute; instead, it should be made in the form of a resolution or a decree.
This procedure applies to treaties, widely affecting the finance of the state and/or anything that requires changes or legislative drafting.
c. The position of treaties within the system of national law in Indonesia that sets statutes or statutory regulations under statutes should not be applicable if the enforcement contravenes the provisions of treaties in Indonesia.
The implementation of treaties in a state is intended to determine the position of treaties in the system of national law.
The Vienna Convention on the Law of Treaties 1969, which is the legal basis for the drafting and enforcement of treaties, prioritizes treaties over national law, as outlined in Article 27: “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” However, member states are not bound to position treaties in higher ranks in the system of national law.
Article 27 of the Vienna Convention on the Law of Treaties 1969 is simply meant to prevent any likelihood of national law being used to justify violations of treaties.21 When international law contravenes national law, each state has a right to decide which law should be deemed reliable.
Article 27 of the Vienna Convention on the Law of Treaties (now Article 23 bis) provides that “A 21 Ximena Fuentes Torrijo, “International Law and Domestic Law: Definitely an Odd Couple,” University of Puerto Rico Law Review 77 (2008): 483, http://www.law.yale.edu/documents/pdf/sela/Xim enaFuentes English_.pdf.
22 Mohd.
Burhan Tsani, “Status Hukum Intenasional Dan Perjanjian Internasional Dalam Hukum Nasional Republik Indonesia (Dalam Perspektif party may not invoke the provision of its internal law as a justification for its failure to perform a treaty.” Therefore, international law does not require a state to follow either dualism or monism.
From a political point of view, national law is the primary law.
Conversely, from a sympathetic viewpoint toward internationalism, international law should be prioritized.22 International relations in Indonesia are affected by the foreign policy that Indonesia complies with, and this policy serves as a guideline for the state to set regulations regarding international relations.
International relations are not only determined by foreign policy, but treaties also affect these relations.
Foreign policy guides Indonesia to determine which streams to follow, and it is affected by the condition of international citizens in international law.
Since the beginning of its independence, Indonesia has adhered to free and active foreign policy, even when the east and west wings were separate.
According to free and active foreign policy, dualism tends to lean more toward home affairs and creates narrow access to international relations for Indonesia.
Mochtar Kusumaatmadja opines that23 “The heaviest burden brought by the dualism is an absolute separation between national and international laws, and it never gives satisfactory justification implying that national law frequently complies with international law.
The fact that the national law that applies occasionally contravenes Hukum Tata Negara),” in Perjanjian Internasional Dalam Teori Dan Praktek Di Indonesia (Direktorat Jenderal Hukum dan Perjanjian Internasional Departemen Luar Negeri, 2008), 2– 3.
23 Mochtar Kusumaatmadja and Etty R. Agoes, Pengantar Hukum Internasional (Bandung: Alumni, 2004), 60.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 1-15 [14] international law does not represent structural differences as voiced by dualists, but it rather serves as evidence showing the ineffective nature of international law.” The above statement implies that the Indonesian policy reflected in Law Number 23 of 2019 concerning National Resource Management regarding the obligation to serve as a military reserve in Indonesia and the sanctions imposed by the Indonesian government when a citizen refuses to serve as a military reserve contradicts the national law that represents the adoption and ratification of international law.
In terms of the provisions prioritizing treaties or international law ratified by Indonesia, other national regulations that follow the ratification must comply with the ratified regulations.
This is intended to prevent any legal conflict between international and national regulations according to what is mandated by Article 27 of the International Convention on Treaties, which requires treaties to be prioritized over national law when it comes to the implementation and adjustment of national law by a state.
IV.
Conclusion and Suggestions The policy reflected in Law Number 23 of 2019 concerning National Resource Management for State Defense does not protect citizens’ right to conscientious objection.
Moreover, Article 77 of the Law criminalizes conscientious objection.
These two articles contradict the provisions of the international treaties that Indonesia has adopted and ratified such as the UDHR and ICCPR.
This has juridical implications for the implementation of the policies made by the government that require the citizens to serve as military reserves for the sake of state defense.
Additionally, the policy reflected in Law Number 23 of 2019 concerning National Resource Management for State Defense regarding the availability to be part of military reserve and the criminal sanctions imposed by the government when citizens refuse to serve as military reserve also contradict other national regulations that support the ratification and adoption of international law.
In terms of the provisions prioritizing treaties or international law ratified by Indonesia, other national regulations that follow the ratification are required to comply with the ratified regulations.
This is intended to prevent any legal conflict between international and national regulations as provided for under Article 27 of the International Convention on Treaties.
Therefore, Law Number 23 of 2019 concerning National Resource Management should be revised to protect the right to conscientious objection to serve as a military reserve to safeguard the basic rights of Indonesian citizens and ensure compliance with the provisions of ICCPR, which Indonesia has ratified.
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Chmykh, Elizaveta, Grazvydas Jasutis, Rebecca Mikova, and Richard Steyne.
“Legal Handbook on The Rights of Conscripts.” In Legal Handbook on The E-ISSN: 2503-0841, P-ISSN: 2356-4512 [15] Rights of Conscripts.
Geneva: DCAFGeneva Center for Security Sector Governance, 2020.
Conscientious Objection to Military Service.
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Pengantar Hukum Internasional.
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The Impact of Human Rights Law on Armed Force.
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2 (2020): 134.
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Torrijo, Ximena Fuentes.
“International Law and Domestic Law: Definitely an Odd Couple.” University of Puerto Rico Law Review 77 (2008): 483. http://www.law.yale.edu/documents/pd f/sela/XimenaFuentes English_.pdf.
Tsani, Mohd.
Burhan.
“Status Hukum Intenasional Dan Perjanjian Internasional Dalam Hukum Nasional Republik Indonesia (Dalam Perspektif Hukum Tata Negara).” In Perjanjian Internasional Dalam Teori Dan Praktek Di Indonesia, 2–3.
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[76] Malaysia and the Rome Statute of the International Criminal Court Fareed Mohd Hassan1, Mohd Hazmi Bin Mohd Rusli2, Amalina Ahmad Tajudin3 1 Faculty of Syariah and Law, Universiti Sains Islam Malaysia Email: fareed@usim.edu.my 2 Faculty of Syariah and Law, Universiti Sains Islam Malaysia Email: hazmirusli@usim.edu.my 3 Faculty of Syariah and Law, Universiti Sains Islam Malaysia Email: amalina@usim.edu.my DOI: http://doi.org/10.21776/ub.blj.2022.009.01.06 Submitted: 2022-02-18 | Reviewed: 2022-03-24 | Accepted: 2022-04-13 | Published: 2022-04-30 How to Cite: Hassan, Fareed Mohd, Mohd Hazmi Bin Mohd Rusli, and Amalina Ahmad Tajudin.
2022.
“Malaysia and The Rome Statute of The International Criminal Court”.
Brawijaya Law Journal 9 (1):76-89. https://doi.org/10.21776/ub.blj.2022.009.01.06.
Abstract: Through its founding treaty, the Rome Statute, the establishment of the International Criminal Court (ICC) has received support and opposition from many countries.
Despite working toward universal ratification or accession to the Rome Statute, Signatories and State Parties to the Rome Statute have decided not to ratify and withdraw from being Member States due to, among other reasons, the issue of immunity and criminal responsibility of the Head of State, which are not in line with their respective Constitution, particularly by Malaysia.
As such, this study analyzes the position of immunity of the Head of State as well as the criminal responsibility of a military commander under international law, particularly under the Rome Statute and the Malaysian Constitution.
Based on doctrinal analysis, this study argues that the Yang di-Pertuan Agong, as the Malaysian Head of State and the Commander-in-Chief of the Malaysian Armed Forces, has immunity before the national court and, thus, will be highly exposed to ICC jurisdiction because the complementary principle under the Rome Statute cannot be implemented.
This study concludes that being a part of the ICC Membership is untimely for Malaysia without the reconciliation of these contradictions.
Keywords: International Criminal Court, Rome Statute, YDPA, Head of State, Commander in Chief.
I.
Introduction The Federation of Malaysia (hereafter, Malaysia) is a sovereign country1 located in 1 Malaysia gained its independence on August 31, 1957 and became a United Nations Member on September 17, 1957 by the name of the Federation of Malaya.
On September 16, 1963, its name was changed to Malaysia, following the Southeast Asia, which is a subregion in Asia located east of India, south of China, and admission to the new federation of Singapore, Sabah (North Borneo) and Sarawak.
See Charter of the United Nations (October 24, 1945) 1 UNTS XVI, art 3; “United Nations Member States,” n.d. http://doi.org/10.21776/ub.blj.2022.009.01.06 E-ISSN: 2503-0841, P-ISSN: 2356-4512 [77] north of Australia.2 Malaysia consists of 13 States and 3 Federal Territories3 and practices parliamentary democracy with constitutional monarchy,4 where the King or the Yang di-Pertuan Agong (YDPA) is the Supreme Head of State of the Malaysian Federation.5 Malaysia has been a staunch supporter of the establishment of the International Criminal Court (ICC) through its founding treaty, the Rome Statute.6 This stance is evident when Malaysia actively participated in a debate7 to adopt the Rome Statute at the Rome Conference in 1998.8 Together with 119 countries, Malaysia voted9 in favor of adopting10 the Rome 2 Eunice Low, ‘Southeast Asia’ in Eunice Low (ed), The George Hicks Collection (Brill 2016) 47–49.
3 The Malaysian Federal Constitution (As at August 10, 2018) (Malaysia) art 1.
4 Andrew J Harding, “Monarchy and the Prerogative in Malaysia,” Malaya L Rev 28, (1986): 352.
5 The Malaysian Federal Constitution (n 3) art 32(1).
6 Rome Statute of the International Criminal Court (adopted July 17, 1998, entered into force July 1, 2002) 2187 UNTS 3.
Hereafter, Rome Statute.
7 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole, vol II (Rome, June, 15 July 17, 1998) UN Doc A/CONF.183/13, [45]-[47] 109 and [49]-[50] 109.
Hereafter, Rome Conference (Vol II).
8 See United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Final Documents: Rome Statute of the International Criminal Court and Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court [With an Annex Containing the Resolutions Adopted by the Conference], vol I (Rome, June 15July 17, 1998) UN Doc A/CONF.183/13.
9 Although it was not completely recorded in Rome Conference (Vol II) (n 7), the Former Malaysian Deputy Minister of Foreign Affairs II, Datuk Richard Riot Anak Jaem stated before the Parliament that Malaysia supported the establishment of the ICC by voting in favour of the adoption of the Final Act of the Rome Statute.
See Penyata Rasmi Parlimen Malaysia Dewan Statute on July 17, 1998.
However, when the Rome Statute was opened for signature,11 Malaysia neither signed nor acceded to the Statute12 after it came into force in July 2002.
As of January 2021, the Rome Statute has been ratified and acceded to by 123 States from all regions,13 with Kiribati acceding to it on November 26, 2019.14 The number of States that ratified and acceded to the Rome Statute has been increasing over the years since it came into force in 2002.15 However, not only did a number of Signatories to the Rome Statute decide not to ratify the Rome Statute,16 but also several states did Rakyat: Parlimen Kedua Belas, Penggal Ketiga, Mesyuarat Ketiga (November 1, 2010) Bil.
62, DR.01.11.2010, 153.
10 Rome Conference (Vol II) (n 7) 9th Plenary Meeting, ‘Agenda Item 12: Adoption of a Convention and other Instruments deemed Appropriate and of the Final Act of the Conference’, 121 [10]: ‘The Statute was adopted by 120 votes to 7, with 21 abstentions’.
However, the detail of the voting was not completely recorded.
See, among others, Uruguay 122 [18], [19]; Belgium 123 [26]; Brazil 123 [32].
11 Rome Statute, art 125(2).
12 ibid art 125(3).
13 “The State Parties to the Rome Statute,” International Criminal Court, accessed January 30, 2021, https://asp.icccpi.int/en_menus/asp/states parties/Pages/the states parties to the rome statute.aspx.
14 United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of 17 July 1998 – Kiribati: Accession (November 26, 2019) UN Doc C.N.595.2019.TREATIESXVIII.10.
15 See Assembly of State Parties, Report of the Bureau on the Plan of Action of the Assembly of States Parties for Achieving Universality and Full Implementation of the Rome Statute of the International Criminal Court (November 10, 2016) ASP Doc ICC-ASP-15/19 [9], [31].
16 The United States, Sudan, Israel and Russia being Signatories to the Rome Statute decided not to ratify the treaty.
See United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 United States of America: Communication (May 6, 2002) UN Doc C.N.434.2002.TREATIES-21; United Nations, Depositary Notification of the Brawijaya Law Journal: Journal of Legal Studies 9(1): 76-89 [78] withdraw17 and did attempt to withdraw18 from being State Parties to the Rome Statute.
These State Parties include Malaysia.
Specifically, this country, a few months after it has deposited its notification of accession19 to the United Nations (UN) Secretary-General as the Depositary to the Rome Statute of the International Criminal Court of July 17, 1998 Sudan: Notification (August 27, 2008) UN Doc C.N.612.2008.TREATIES-6; United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 Israel: Notification (August 28, 2002) UN Doc C.N.894.2002.TREATIES-35; United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 Russian Federation: Communication (November 30, 2016) UN Doc C.N.886.2016.TREATIES-XVIII.10.
17 Currently, there are two countries which have withdrawn from the Rome Statute after being Member States to this treaty.
See United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 – Philippines: Withdrawal (March 17, 2018) UN Doc C.N.138.2018.TREATIES-XVIII.10; United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of 17 July 1998 Burundi: Withdrawal (October 28, 2016) UN Doc C.N.805.2016.TREATIESXVIII.10.
See also Law No.
1/011 of August 30, 2003 on Ratification by the Republic of Burundi of the Rome Statute of the International Criminal Court, adopted in Rome on July 17, 1998 (Burundi) / Loi No.
1/011 Du 30 Août 2003 Portant Ratification Par La République Du Burundi.
18 The Gambia and South Africa initially deposited their respective notification of withdrawal from the Rome Statute.
However, they rescinded their withdrawal a few months after the notification of their withdrawal was made.
See United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of 17 July 1998 Gambia: Withdrawal of Notification of Withdrawal (February 16, 2017) UN Doc C.N.62.2017.TREATIES-XVIII.10; United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 South Africa: Withdrawal of Notification of Withdrawal (March 7, 2017) C.N.121.2017.TREATIES-XVIII.10.
19 United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 – Malaysia: Accession (March 4, 2019) UN Doc C.N.69.2019.TREATIESXVIII.10.
Hereafter, UN Depositary Notification – Malaysia: Accession.
Statute,20 decided to withdraw its accession to this treaty21 before the Statute came into force on Malaysia.22 Among the reasons for Malaysia’s withdrawal is the contradictions between the Constitution of the Malaysia and the Rome Statute on the immunity of the YDPA before the national court.23 By virtue of his positions as Head of State and as the Commander-in-Chief of the Malaysian Armed Forces,24 the YDPA will be highly exposed to ICC prosecution in the case that crimes have been allegedly committed by its subordinates.
Moreover, the Conference of Rulers (COR), which has been established in Part IV, Chapter 2 of the Constitution, has not been consulted and deliberated25 prior to Malaysia making accession to the Rome Statute.
To address these issues, the remainder of the paper is structured as follows.
Section II examines the position of Heads of State under international law, particularly under the Rome Statute.
Section III elucidates the roles and powers of the YDPA as the Head of State of Malaysia and the Commander-inChief of its Armed Forces.
Lastly, Section 20 Rome Statute, art 125(3).
21 United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 – Malaysia: Withdrawal of the Instrument of Accession (May 15, 2019) UN Doc C.N.185.2019.TREATIES-XVIII.10.
22 UN Depositary Notification – Malaysia: Accession (n 19) “[t]he Statute will enter into force for Malaysia on June 1, 2019 in accordance with its article 126(2) [of the Rome Statute]” (emphasis added).
23 The Malaysian Federal Constitution (n 3) art 182; Ida Lim, “Rome Statute: What is it?
Will Agong’s immunity be at risk?,” Malay Mail (March 25, 2019), accessed October 1, 2020, https://www.malaymail.com/news/malaysia/2019/ 03/25/rome-statute-what-is-it-will-agongsimmunity-be-at-risk/1736067.
24 ibid arts 32(1) and 41.
25 The Malaysian Federal Constitution (n 3) art 38(2).
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [79] IV summarizes the key arguments and findings on prior discussions.
II.
Legal Materials and Methods Based on doctrinal and comparative analyses, this study analyzes primary and secondary sources as legal and supporting materials.
The primary sources referred to are based on but not limited to the relevant documents of the UN, numerous international conventions and agreements, historical legal records, relevant legislations, and the Federal Constitution of Malaysia, as well as decided cases from international and national courts.
In addition, reviews of numerous academic publications of scholarly journal articles, books, and conference papers, as well as other sources from the Internet relevant to the discussion are also used to form part of secondary sources contributory to the analysis.
III.
Results and Discussion Heads of State and the Rome Statute Since the outbreak of World Wars I and II, many leaders have been investigated and prosecuted before national and ad hoc international tribunals for international crimes26 of genocide, crimes against humanity, war crimes, and the crime of aggression or the crime against peace.
These scenarios are evident in the establishment of several ad hoc tribunals, such as the Turkish Military Tribunal,27 trials before the courts 26 See William A Schabas, “International Crimes,” in Routledge Handbook of International Law, ed.
David Armstrong (Routledge, 2009), 268–77.
27 See Gabrielle Simm, “Paris Peoples’ Tribunal and the Istanbul Trials: Archives of the Armenian Genocide,” LJIL 29, no.
1 (March 2016): 245268, 254–57; Vahakn N Dadrian, “The Documentation of the World War I Armenian Massacres in the Proceedings of the Turkish in Leipzig, Germany,28 the Nuremberg Tribunal,29 the Far East Tribunal,30 and the Former Yugoslavian,31 Rwandan,32 and ad hoc hybrid tribunals established in EastTimor,33 Sierra Leone,34 and Cambodia, among others.35 The ICC was established through its founding treaty, that is, the Rome Statute, with a jurisdiction similar to that of its Military Tribunal,” Int’l J Mid E Stud 23 (1991): 549.
28 William J Bosch, Judgment on Nuremberg: American Attitudes Toward the Major German War-Crime Trials (North Carolina UP, 1970), 6; Sheldon Glueck, “War Criminals Their Prosecution and Punishment The Record of History,” Law Guild Rev 5 (1945): 4.
29 Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, (signed at London on August 8, 1945, with Charter of the International Military Tribunal, entered into force August 8, 1945).
Hereafter, the IMT Charter.
30 Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo (19 January 1946); Charter dated January 19, 1946; Amended Charter dated April 26, 1946 Tribunal established January 19, 1946.
Hereafter, the IMTFE Charter.
See also Tony R. Mullis, “Douglas MacArthur,” in Generals of the Army Marshall, MacArthur, Eisenhower, Arnold, Bradley, ed.
James H. Willbanks (Kentucky UP, 2013), 63–104.
31 UNSC Res 827 (May 25, 1993) UN Doc S/RES/827.
32 UNSC Res 955 (November 8, 1994) UN Doc S/RES/955.
33 UNTAET Reg No 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offence (June 6, 2000) UN Doc UNTAET/REG/2000/15, art 1.
34 Agreement between the Government of Sierra Leone and the UN pursuant to UNSC Res 1315 (August 14, 2000) UN Doc S/RES/1315.
35 Arrangement between the UN General Assembly and the Cambodian Government pursuant to UNGA Res 57/228 (February 27, 2003) UN Doc A/RES/57/228.
Brawijaya Law Journal: Journal of Legal Studies 9(1): 76-89 [80] predecessor tribunals on genocide,36 crimes against humanity,37 war crimes,38 and the crime of aggression or the crime against peace.39 As customary international law,40 immunity attached to Heads of State under national or international law will be set aside, where such immunity shall not bar the ICC from exercising its jurisdiction over such a persons, as stipulated under Article 27 of the Rome Statute.
Moreover, the International Law Commission41 and the 36 Rome Statute, art 6; William A Schabas, Genocide in International Law: The Crimes of Crimes (2nd edn, CUP 2009) 460.
37 ibid art 7; Leila Nadya Sadat, ‘Crimes Against Humanity in the Modern Age’ (2013) 107 AJIL 334, 352.
38 ibid art 8; Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War: An Introduction to International Humanitarian Law (4th edn, CUP 2011) 247.
39 ibid art 8 bis; Sergey Sayapin, The Crime of Aggression in International Criminal Law: Historical Development, Comparative Analysis and Present State (TMC Asser Press 2014) 253.
40 IMT Charter, art 7; IMTFE Charter, art 6; UNGA Res 95(I) (December 11, 1946) UN Doc A/RES/95(I); ILC, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, With Commentaries, vol II (UNYBILC 1950) Principle III; Joanne Foakes, The Position of Heads of State and Senior Officials in International Law (OUP 2014) 132; Mohamed Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal: A Judge’s Recollection (OUP 2012) 12–13.
41 ILC, Report of the International Law Commission on the Works of Its 65th Session UN Doc A/68/10, 52 and 58; UNGA Res 68/112 UN Doc A/RES/68/112 [4], [7]; ILC, Immunity of State Officials From Foreign Criminal Jurisdiction: Text of the Draft Articles Provisionally Adopted by the Drafting Committee at the Sixty-Seventh Session (July 29, 2015) UN Doc A/CN4/L865, Draft arts 3 and 4.
See also ILC, Report of the ILC on the Work of its 63rd Session: Draft Resolution by the Sixth Committee (November 8, 2011) (UN GAOR, 66th Session) UN Doc A/C.6/66/L.26, [8].
Special Rapporteur Roman Kolodkin submitted three reports on the topic.
See Special Rapporteur Roman Kolodkin, Third Report (May 24, 2011) UN Doc A/CN.4/646; Special Rapporteur Roman Kolodkin, Second Report (June 10, 2010) UN Doc A/CN.4/631 and Special Rapporteur Roman Kolodkin, International Court of Justice (ICJ), in cases entitled Arrest Warrant42 and Mutual Assistance in Criminal Matters,43 decided that incumbent Heads of State, Heads of Government, and Ministers of Foreign Affairs as state high-ranking officials enjoy immunity ratione personae.
However, this immunity only applies to immunity from foreign criminal jurisdiction but not from the jurisdiction of an international court, such as the ICC, if having allegedly committed international crimes.44 Nevertheless, setting aside the immunity of Heads of State under the Rome Statute is subject to the cornerstone of the establishment of the ICC, namely, the complementarity principle.45 This principle gives national authorities first-hand jurisdiction over alleged crimes committed under ICC jurisdiction to be firstly investigated or prosecuted locally, unless national authorities were unable46 Preliminary Report (May 29, 2008) UN Doc A/CN.4//601.
42 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] ICJ Rep 3 [51].
43 Case Concerning Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) (Judgment) [2008] ICJ Rep 177 [170].
44 Arrest Warrant Case (n 44) [61]; David S Koller, ‘Immunities of Foreign Ministers: Paragraph 61 of the Yerodia Judgement as It Pertains to the Security Council and the International Criminal Court’ (2004) 20 Am U Int’l L Rev 7, 14, 17 and 19; Xiaodong Yang, ‘Immunity for International Crimes: A Reaffirmation of Traditional Doctrine’ (2002) 61 CLJ 242, 244.
45 Rome Statute, preambles [4], [10] and arts 1 and 17; Jo Stigen, The Relationship Between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Martinus Nijhoff Publishers 2008) 336; Julio Bacio Terracino, ‘National Implementation of ICC Crimes Impact on National Jurisdictions and the ICC’ (2007) 5 JICJ 421, 436.
46 Rome Statute, art 17(3).
E-ISSN: 2503-0841, P-ISSN: 2356-4512 [81] physically47 or legally48 or were unwilling49 to do so.
Delegations have raised the issue of the insertion of Article 27 into the Rome Statute during its adoption at the Rome Conference in 1998.50 A number of African Heads of State faced charges before the ICC prior to the implementation of the Rome Statute.51 Thus, Kenya proposed an amendment to Article 27 of the Rome Statute52 before the Assembly of State Parties (ASP) in 2014 to exempt incumbent Heads of State from ICC jurisdiction until they cease their office.53 However, the ASP did not accept the proposal because it is akin to providing impunity, because Article 27 of the Statute is not only one of the cornerstones of the 47 Ahmed Samir Hassanein, ‘Physical and Legal Inability under Article 17(3) of the Rome Statute’ (2015) 15 Int’l Crim LR 101, 103-112.
See also Informal Expert Paper, The Principle of Complementarity in Practice (2003) ICC Doc ICC-01/05-01/08-721-Anx9, 15.
48 ibid 112-122.
49 Rome Statute, art 17(2).
50 See Rome Conference (Vol II) (n 7) United States 195 [23]; Jordan 137 [72].
51 Abel S Knottnerus, ‘The AU, the ICC, and the Prosecution of African Presidents’ in Kamari M Clarke, Abel S Knottnerus and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 154–55.
52 United Nations, Depositary Notification of the Rome Statute of the International Criminal Court of July 17, 1998 Kenya: Proposal of Amendments (March 14, 2014) UN Doc C.N.1026.2013.TREATIES-XVIII.10, Annex [2].
53 Assembly of the AU, Decision on the Progress Report of the Commission on the Implementation of the Decision of the International Criminal Court (ICC) AU Doc Assembly/AU/13(XXII) in Assembly of the AU, ‘Decisions and Declaration’ (22nd Ordinary Session, January 30-31, 2014) AU Doc Assembly/AU/Dec.493(XXII) [17(a)]; Assembly of State Parties, Report of the Working Group on Amendments (December 7, 2014) ASP Doc ICC-ASP/13/31 [12] Hereafter, ASP Report of the Working Group on Amendments 2014; Makau W Mutua, ‘Africans and the ICC: Hypocrisy, Impunity, and Perversion’ in Kamari M Clarke, Abel S Knottnerus and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (CUP 2016) 55. establishment of the ICC54 but also amendment of the provision would be contrary to customary international law.
In addition to the irrelevance of the immunity of Heads of State before the ICC under Article 27 of the Rome Statute, Article 28(a) of the Statute provides criminal responsibility of a military commander.
It states that “[a] military commander … shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces.”55 The Constitutions and legislations of the majority of countries, if not all, provides their respective Heads of State as the Commander-in-Chief of the Armed Forces with immunity before national courts.56 54 ASP Report of the Working Group on Amendments 2014 (n 53) [12].
55 Rome Statute, art 28(a) (emphasis added).
56 See, among others, The Constitution of the Republic of Korea (As Amended October 29, 1987) (Republic of Korea) art 84; The Constitution of the Hashemite Kingdom of Jordan (As Amended 2011) (Jordan) art 30; The Constitution of the Kingdom of Thailand B.E.
2550 (2007) (Thailand) arts 3, 8 and 10; The Constitution of Brunei Darussalam Constitutional Matter I Constitution of Brunei Darussalam (1984 Edition) (Brunei) arts 4(1) and 4(1B); The Constitution of the Republic of the Union of Myanmar (2008) (Myanmar) arts 16, 58, 200(a) and 201; The Constitution of Lao PDR (As Amended May 6, 2003) (Laos) arts 65 and 67(New)(7); The Constitution of the Socialist Republic of Vietnam 1992 (As Amended November 28, 2013) (Vietnam) art 86; The Constitution of the Republic of Singapore (Chapter Const) (Original Enactments: S 1/63) Revised Edition 1999 (July 1, 1999) Consolidation Version in Force from October 1, 2015 (Singapore) art 17(1); The 1945 Constitution of the Republic of Indonesia (As Amended by the First Amendment of 1999, the Second Amendment of 2000, the Third Brawijaya Law Journal: Journal of Legal Studies 9(1): 76-89 [82] Based on the words “[a] military commander” under Article 28(a) of the Rome Statute, the argument emerges that any military commander, including the Commander-in-Chief of the Armed Forces as the highest rank in the military, would face certain consequences should subordinates commit any crime under ICC jurisdiction.
Similarly, the Constitution of Malaysia provides that the YDPA not only holds office as Head of State,57 His Majesty the King is also the Supreme Commander of the Malaysian Armed Forces.58 Pursuant to Articles 27 and 28(a) of the Rome Statute, the Malaysian Parliament raises the inconsistencies of these provisions with the Malaysian Constitution, whereby the former will affect the position and sovereignty of the King of Malaysia as Head of State, including nine other hereditary Malay Rulers,59 and the Commander-in-Chief of the Malaysian Armed Forces.60 Roles and Powers of the YDPA Malaysia is a unique61 country because it has nine hereditary Rulers in the Malaysian Amendment of 2001 and the Fourth Amendment of 2002) (Indonesia) arts 9 and 10.
57 The Malaysian Federal Constitution (n 3) art 32(1).
58 ibid art 41.
59 ibid art 181(1); Penyata Rasmi Parlimen Malaysia Dewan Rakyat: Parlimen Ketiga Belas, Penggal Keempat, Mesyuarat Ketiga (November 9, 2016) Bil.
44, DR 9.11.2016, 5; Penyata Rasmi Parlimen Malaysia Dewan Rakyat: Parlimen Ketiga Belas, Penggal Keempat, Mesyuarat Ketiga (November 8, 2016) Bil.
43, DR 8.11.2016, 217–218.
60 ibid art 41; Penyata Rasmi Parlimen Malaysia Dewan Rakyat: Parlimen Kedua Belas, Penggal Kelima, Mesyuarat Khas (July 23, 2014) Bil.
1, DR 23.07.2014, 65.
61 Anthony Milner, ‘“Identity Monarchy”: Interrogating Heritage for a Divided Malaysia’ (2012) 1 Southeast Asian Stud 191, 193; Deborah A Johnson and Anthony Milner, ‘Westminster Federation who are Heads of their respective States62 within the federation, and any among them can be elected by the others to be the YDPA through the COR.63 These rulers are the sovereigns of the States within the federation,64 and the YDPA holds office as the Supreme Head of the Federation,65 as provided under Article 32(1) of the Federal Constitution.
Moreover, the executive authority of the Federation is vested in the YDPA and exercisable by him, the Cabinet, or any Minister authorized by the Cabinet or any other persons authorized by Parliament in accordance with Article 39 of the Federal Constitution.
Although Malaysia adopts a parliamentary system modeled after the Westminster system, the Federal Constitution is supreme but not Parliament compared with that of the United Kingdom.66 This position has been stipulated under Article 4(1) of the Federal Constitution and was upheld by several Malaysian jurisprudences.67 Implanted: The Malaysian Experience’ in Haig Patapan, John Wanna and Patrick Moray Weller (eds), Westminster Legacies: Democracy and Responsible Government in Asia and the Pacific (UNSW Press 2005) 85–87.
62 The States of Kedah, Kelantan, Terengganu, Pahang, Johor, Selangor, Perak, Negeri Sembilan and Perlis.
See Abdul Aziz Bari, “British Westminster System in Asia-The Malaysian Variation,” US-China L Rev 4 (2007): 2.
63 The Malaysian Federal Constitution (n 3) arts 32(3), 38(2)(a) and 38(6)(a).
64 ibid art 181.
65 ibid art 32(1).
66 ibid art 4(1); Muhamad Juzaili bin Mohd Khamis & Ors v State Government of Negeri Sembilan & Ors [2015] 3 MLJ 513 (CA) [32]; Andrew J Harding, Law, Government and the Constitution in Malaysia (MLJ 1996) 105.
67 See, among others, as per Suffian LP in Ah Thian v Government of Malaysia [1976] 2 MLJ 112 (FC) 113 where it was held that ‘[t]he doctrine of the supremacy of Parliament does not apply in Malaysia.
Here we have a written constitution’ (emphasis added); As per Hamid Sultan JCA in Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor [2013] 6 MLJ 660 (COA) 708 [83] E-ISSN: 2503-0841, P-ISSN: 2356-4512 [83] As the Supreme Head of the State, the YDPA is also the Supreme Commander of the Armed Forces and the Armed Forces Council, which were established under Articles 41 and 137 of the Constitution, respectively, and would be responsible under the general authority of the YDPA, except on the operational use of the Armed Forces.
Moreover, various provisions of the Armed Forces Act 197268 specifies various powers of the YDPA in relation to the Armed Forces.69 Malaysia practices constitutional monarchy; thus, many scholars argued that constitutional monarchy denotes that the monarchy, such as the YDPA, in the exercise of his powers under the Constitution, shall act on the advice of the Cabinet or Prime Minister as stipulated under Article 40(1) of the Constitution70 and holds office as a mere symbolic or a figurehead.71 However, no specification in the Reid Commission Report72 has stated as such.
Instead, the Report mentioned that that ‘[t]he common law position of parliamentary supremacy has limited relevance in our constitution which is founded on Constitutional Supremacy’ (emphasis added).
68 [Act 77].
69 Lt Kol Syed Ismail Bin Syed Omar, ‘Military Law: Jurisprudence and Jurisdiction’ (1997) 2 MLJ LVII, LXILXII.
70 See, among others, Nurnazida Nazri, “The Discretionary Functions of the Yang Di-Pertuan Agong: A Conceptual Approach,” MLJ 1, (2014): cxxvii.
See also Abdul Ghani Bin Ali @ Ahmad & Ors v Public Prosecutor [2001] 3 MLJ 561 (FC) 587-588; Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50 (Privy Council) 52.
71 See, among others, David Seth Jones, “Resolving the Constitutional Question of the Malaysian King and Rulers,” Asian Journal of Political Science 3, no.
1 (June 1995): 13, 16 and 20.
72 Colonial Office, Report of the Federation of Malaya Constiutional Commission 1957 (Her Majestiy’s Stationery Office 1957).
This Report was prepared by the Commissioners appointed by Her Majesty the Queen to make recommendations for a form of Constitution for a fully selfgoverning and independent Federation of Malaya within the Commonwealth.
“[h]e [the YDPA] will be a symbol of the unity of the country,”73 but not as a mere symbolic as contended,74 compared with other monarchs within the region.75 In addition, pointing out that Article 40(1) of the Constitution states that the YDPA “shall be entitled, at his request, to any information concerning the government of the Federation which is available to the Cabinet.” is crucial.
Based on the theory of constitutional monarchy, the crown, as Head of State and Supreme Commander, is not a mere figurehead.
In other words, the monarchy holds the right to be consulted, to encourage, and to warn.76 Meanwhile, the Reid Commission Report very clearly stated that “… and he will be entitled to be kept informed with regard to important public affairs and to make his views known to the Prime Minister.”77 Thus, Article 40(1) of the Federal Constitution gives entitlement to the YDPA to request for information from the Cabinet during the exercise of his powers.
If the YDPA is to act on advice and only as a mere symbolic or a figurehead, then the Constitution would not have provided him with such an entitlement.
In his dissenting judgment, Mohd Hishamudin JCA (Judicial Appointments Commission) in the case of Armed Forces 73 Reid Commission Report (n 72) [58](i) (emphasis added); Dian AH Shah, ‘Constitutionalising Multiple Pluralities in Malaysia.
Pluralist Constitutions in Southeast Asia’ in Jackyln L Neo and Bui Ngok Son (eds), Constitutionalism in Asia: Pluralist Constitutions in Southeast Asia (Hart Publishing 2019) 36.
74 Nazrin Shah, The Monarchy in Contemporary Malaysia (Institute of Southeast Asian Studies, 2004), 5.
75 The Cambodian monarch for instance, reigns but does not exercise any power.
See the Constitution of the Kingdom of Cambodia (1993) As Amended 2008 (Cambodia) art 7.
76 R. H. Hickling, “The Prerogative in Malaysia,” Malaya L Rev 17 (1975): 219.
77 Reid Commission Report (n 72) [58](i).
Brawijaya Law Journal: Journal of Legal Studies 9(1): 76-89 [84] Council, Malaysia & Anor v Major Fadzil bin Arshad78 mentioned that “[i]n my judgment … [a]s the Supreme Commander of the Armed Forces, His Majesty’s role could not have been intended by the framers of our Constitution to be merely symbolic or just a figure head.
Surely His Majesty is expected to play an effective and meaningful role as the Supreme Commander.”79 Although this judgment is a dissenting one and has not been decided by the majority of the judges, the subsequent Court of Appeal or Federal Court has not overruled His Lordship’s dissenting judgment on such a principle thus far.80 Moreover, in certain cases, a dissenting opinion has affected subsequent court practice by transforming into a majority opinion,81 which would be adopted in future judgments and become the basis for the future development of legal doctrine.82 This scenario is evident in a number of examples, such as in the Federal Court case of Soon Singh a/l Bikar Singh v Pertubuhan 78 [2012] 1 MLJ 313 (CA).
79 ibid 328-329 [38] (emphasis added).
80 Hamid Sultan JCA also, in his dissenting judgments reiterated a similar position as with Mohd Hishamudin JCA in the cases of Pathmanathan a/l Krishnan (also known as Muhammad Riduan bin Abdullah) v Indira Gandhi a/p Mutho and Other Appeals [2016] 4 MLJ 455 (CA) [102] 497 and [113] 501-502; Nik Nazmi bin Nik Ahmad v Public Prosecutor [2014] 4 MLJ 157 (COA) [122] 194 and Nik Noorhafizi bin Nik Ibrahim & Ors v Public Prosecutor [2013] 6 MLJ 660 (COA) 708, 733-734 and 735.
81 A similar situation has been taken by New Zealand; a commonwealth and a common law country as with Malaysia.
See Brighouse Ltd v Bilderbeck [1994] 2 ERNZ 243 (CA) where the dissenting opinion in this case was subsequently affirmed by another panel of the Court of Appeal in Aoraki Corporation Ltd v McGavin [1998] 3 NZLR 276 (CA).
82 See Ashgar Ali Ali Mohamed, “Dissenting Opinion: The Voice of the Future,” MLJ 4 (July 2016): lxxxiv.
Kebajikan Islam Malaysia Kedah & Anor,83 whereby the Federal Court approved the decision of the trial judge of the High Court,84 which relied on the minority view of the Supreme Court case in Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Ors.85 The ICJ also allows its judges to deliver their respective dissenting or separate judgment,86 such as in the case of South West Africa Cases,87 where the ICJ VicePresident Wellington Koo,88 Judge Koretsky,89 Judge Tanaka,90 Judge Jessup,91 Judge Padilla Nervo,92 Judge Forster,93 and Judge Sir Louis Mbanefo94 appended their respective dissenting opinions from the majority.95 This judgment includes a number of dissenting opinions of ICC cases96 as well as its predecessor tribunals.97 83 [1999] 1 MLJ 489 (FC).
84 Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1994] 1 MLJ 690 (HC).
85 [1992] 1 MLJ 1 (Supreme Court).
86 See, the Statute of the International Court of Justice (ICJ Statute) arts 57.
87 (Ethiopia v South Africa; Liberia v South Africa) (Second Phase, Judgment) [1966] ICJ Rep 6.
88 ibid (Dissenting Opinion of Vice-President Wellington Koo) [1966] ICJ Rep 216-238.
89 ibid (Dissenting Opinion of Judge Koretsky) [1966] ICJ Rep 239-249.
90 ibid (Dissenting Opinion of Judge Tanaka) [1966] ICJ Rep 250-324.
91 ibid (Dissenting Opinion of Judge Jessup) [1966] ICJ Rep 325-442.
92 ibid (Dissenting Opinion of Judge Padilla Nervo) [1966] ICJ Rep 443-473.
93 ibid (Dissenting Opinion of Judge Forster) [1966] ICJ Rep 474-483.
94 ibid (Dissenting Opinion of Judge Sir Louis Mbanefo) [1966] ICJ Rep 484-505.
95 ICJ Statute, art 3(1) “The Court shall consist of fifteen members”.
96 See, among others, Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi (Dissenting Opinion of Judge Anita Usacka on the Appeal of Libya Against the Decision of Pre-Trial Chamber I of 31 May 2013) ICC-01/11-01/11-547-Anx2 (May 21, 2014); Dissenting Opinion of Judge Hans-Peter Kaul in Situation in the Republic of Kenya (Decision Pursuant to Article 15 of the E-ISSN: 2503-0841, P-ISSN: 2356-4512 [85] Thus, dissenting judgment, whether it is a national98 or international99 case, is not only persuasive but may also be highly influential100 and should not be regarded as insignificant, underestimated, or overlooked, given that the judgment by judges has been properly addressed, complete, and thorough.101 The reason is that dissenting judgment may assist the Legislature in future law-making, amendment, and revision of the existing laws.
IV.
Conclusion and Suggestion States play an important role toward universal ratification and accession to the Rome Statute; thus, this commitment can only be achieved if domestic legal issues, such as contradictions between the Rome Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya) ICC-01/09-Corr, Pre-T Ch II (April 1, 2010) 84-163 .
97 See, among others, Prosecutor v Jadranko Prlic, Bruno Stojic, Slobodan Praljak, Milivoj Petrkovic, Valentin Coric and Berislav Pusic (Separate and Partially Dissenting Opinion of Presiding Judge Jean-Claude Antonetti) IT-04-74T, T Ch III (May 29, 2013) [429]-[430]; Prosecutor v Drazen Erdemovic (Separate and Dissenting Opinion of Judge Cassese) IT-96-22A, Apps Ch (October 7, 1997); International Military Tribunal for the Far East, Dissentient Judgment of Radhabinod Pal (KokushoKankokai, Inc Tokyo 1999).
See also In Re Yamashita (1946) 327 U.S. 1 (US Supreme Court) Murphy J dissenting opinion, 26-41 and Rutledge J dissenting opinion, 41-81.
98 Speech by YA Datuk Wira Low Hop Bing, Judge of Court of Appeal, Malaysia, ‘Time Effective Grounds of Judgment’ (2012) 2 MLJ clxxii, clxxv.
99 R P Anand, “The Role of Individual and Dissenting Opinions in International Adjudication,” Int’l & Comp LQ 14, no.
3 (July 1965): 788.
100 Kuek Chee Ying, “When Obiter Dictum and Minority View Become Ratio Decidendi,” MLJ 3 (2015): xii.
101 Lyndel V Prott, “The Style of Judgment in the International Court of Justice,” Aust YBIL 5 (n.d.): 86.
Statute and Constitution of the State, are firstly settled.
State Parties to the Rome Statute will be bound by these provisions because ICC can set aside the immunity of the Head of State under Article 27 of the Rome Statute with the criminal responsibility of a military commander under Article 28(a).
As a unique country, Malaysia’s commitment toward upholding and implementing international law at the domestic level is undeniable.
However, given that the status quo of the Malaysian Constitution is not parallel with the Rome Statute, Malaysian authorities will be considered legally unable to investigate or prosecute the most wanted individuals, including the Head of State and the Commander-in-Chief of the Armed Forces held by the YDPA.
As such, becoming a State Party to the Rome Statute is untimely for this country until resolved.
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Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 189 THE IMPLICATIONS OF ASEAN ECONOMIC COMMUNITY (AEC) TO THE REGULATION OF COOPERATIVE SUPERVISION BY THE GOVERNMENT UNDER LAW NUMBER 25/1992 ON COOPERATIVE Herman Suryokumoro 1 1 Lectural of International Law, Faculty of Law, Brawijaya University Email: hermans-fh@ub.ac.id Submitted: 2017-04-16 | Accept: 2017-08-29 ABSTRACT The applicability of AEC has a profound impact on the development of economic policy in ASEAN countries, including in cooperatives.
This paper examines important aspects related to the effect of MEA on cooperative policy in particular on cooperative oversight/supervision by the government.
The supervision of cooperatives in Indonesia experienced a shift from deofficialisasi towards autonomy or independence of cooperatives.
It is argued that Law No 25 Year 1992 on Cooperative is silent on the government oversight regulation for cooperative.
With the AEC government oversight should not be eliminated completely because supervision aims at ensuring the quality and the cooperative to compete in the free market of AEC.
Thus, the Law No.
25 Year 1992 could no longer be used as a basis of reference to deal with AEC.
This paper proposes that Indonesian Cooperative Board (Dekopin) should have jurisdiction in supervising cooperative.
Such supervision is done by promoting the strengthening of the cooperative that maintains the identity of cooperatives.
Keywords: ASEAN, Regionalism, Cooperative, Supervision/Oversight I.
INTRODUCTION Since the establishment of ASEAN as a regional organization in 1967, the member countries have put economic cooperation as one of the main agenda to be developed.
At the beginning of economic cooperation is focused on programs providing trade preferences (preferential trade), joint ventures (joint ventures), and schemes are complementary (Complementation scheme) between the governments of the member states and private parties in the ASEAN region, such as the ASEAN Industrial Projects Plan (1976), Preferential Trading Arrangement (1977), ASEAN Industrial Complementation scheme (1981), ASEAN Industrial Joint-Ventures scheme (1983), and Enhanced Preferential Trading Arrangement (1987).
In the decade of the 80s and 90s, when countries around the world began to make efforts to remove obstacles to the economic, the member countries of ASEAN to realize that the best way to work is to mutually open their economies, in order to create regional economic integration 1 .
1 Dirjen Kerjasama ASEAN Kementerian Luar Negeri RI, Hand Book of ASEAN Economic DOI: http://dx.doi.org/10.21776/ub.blj.2017.004.02.04 mailto:hermans-fh@ub.ac.id Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 190 12th ASEAN Summit in Cebu in January 2007 had agreed a "Declaration on the Acceleration of the Establishment of an ASEAN Community by 2015".
In that context, the ASEAN Economic Ministers has instructed the ASEAN Secretariat to compile a "Blueprint for the ASEAN Economic Community (AEC)".
The AEC Blueprint provides a strategic work plan in the short, medium and long up to 2015 towards the establishment of ASEAN economic integration, namely: 2 a.
Towards a single market and production base (current free trade for the goods, services, investment, skilled labor and capital); b.
Towards the creation of regional economies with high competitiveness (regional competition policy, IPRs action plan, infrastructure development, ICT, energy cooperation, taxation, and the development of SMEs); c. Towards a region with equitable economic development (region of equitable economic development) through the development of SMEs and programs of the Initiative for ASEAN Integration (IAI); and d. Towards the full integration of the global economy (coherent approach in external economic relations and to Community Blueprint 2015, Kementrian Luar Negeri Republik Indonesia, 1-3 2 The ASEAN Economic Community: A work in Progress, available at http://www.adb.org/publications/asean-economiccommunity-work-progress encourage participation in the global supply network).
Since the end of 2016, ASEAN has been implementing the ASEAN Economic Community (AEC) which affects the entire order of the State's economy as well as cooperatives.
Cooperatives in ASEAN already has a container in the form of ASEAN Cooperative Organozation (ACO) that berafilisasi with the International Cooperative Allianz (ICA) at the wider international level.
However, laws or rules relating to cooperatives in ASEAN is still minimal.
There are at least two important instruments that can be filed a reference in a cooperative law sees politics in ASEAN, namely the ASEAN Economic Community Blueprint and ASEAN Strategic Action Plan for SME Development 2016-2025.
ASEAN does not specifically regulate cooperatives in ASEAN, but can be understood substantially equivalent or analogous cooperation with SMEs (MSME: Micro, small, medium enterprises).
The issues of development of small and medium enterprises (including cooperatives) becomes an important issue since become a mainstay of the state economy.
Policy development of SMEs in the ASEAN region is specifically stipulated in the ASEAN Strategic Action Plan for SME Development 2016-2025.
3 3 Robby Tulus and Balu Iyer, Co-Opeatives and The ASEAN Economic Blueprint: Call for greater Cohttp://www.adb.org/publications/asean-economic-community-work-progress http://www.adb.org/publications/asean-economic-community-work-progress Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 191 In the ASEAN Strategic Action Plan for SME Development 2016-2025 explained that in the first five-year program (2016-2020) aimed at policy integration policy on cooperatives / SMEs in the region, thus the countries in the ASEAN region should create synergistic regulations and in line with ASEAN policy.
The policy consequences should receive special attention from the government.
First, the State must synergize related regulations on cooperatives with the interests of ASEAN.
In a regionalized system synergy with policies in laws and regulations is a necessity.
No regionalization without synergy, synergy aims to strengthen the integration of the region / region.
Likewise in ASEAN, the first step is to strengthen ASEAN cooperation to synergize or integrate the rules in the State of ASEAN countries.
4 A second consequence is the setting up of cooperatives and SMEs to compete globally.
It is inevitable that the main purpose of regionalization is to realize free trade region, so inevitably, States must prepare for all economic entities (including cooperatives and SMEs) to be able to compete freely in the region.
Two consequences of this makes the role of the State and the government is very op engagement and visibility, available at www.ica.org 4 Tanza A. Borzel, Theorizing Regionalism: Cooperation, Integration and Governance, Oxford Handbook of Comparative Regionalism , (Oxford: Oxford University Press, in prep, 2014) important as regulators of the existence of cooperatives, especially with regard to the supervision of the cooperative.
Cooperative oversight by the government became urgent in view of the challenges facing cooperatives in the MEA.
In the absence of supervision by the government likely will lose the cooperative spirit of mutual cooperation and kinship and are not in accordance with the identity because it affected the economic globalization and the free market.
Individuality and profit oriented.
5 In the Indonesian positive law on cooperatives regulated in Law Number 25 of 1992 on Cooperation (hereinafter referred to as Law 25/1992).
This law created a new ode to the era, long before the ASEAN and AEC exist.
As mentioned in the explanation generally, Law 25/1992 created to foster the independence of the cooperative, but the laws are not set on cooperative oversight by the government, the government's role not only in coaching supervision.
6 Cooperative oversight by the government does not deny the existence of ASEAN regionalization through the AEC.
But precisely cooperative oversight by the government guarantee the implementation 5 Djabaruddin Djohar, „Mempertanyakan Implementasi Jati Diri Koperasi‟, paper presented at Discussions held by Deputi Bidang Pengkajian Sumberdaya UKMK Kantor Kementerian Koperasi & UKM RI at 10 November 2008 6 Mahfud MD, Politik Hukum Di Indonesia, (Jakarta: Rajagrafindo Persada, 2010), 11 http://www.ica.org/ Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 192 of the AEC program which is based on identity.
Based on the above, this study analyzed two major issues related to cooperative oversight by the government and the AEC, namely: the implications of the implementation of AEC to the cooperative oversight arrangements by the government based on Law 25/1992 on Cooperatives and model of cooperative oversight arrangements by the government in accordance with the AEC.
Therefore, it is necessary for the proper formulation can guarantee the existence of its cooperatives in the regionalization of ASEAN, especially in the era of the MEA but not out of the concept of identity, namely the independence of the cooperative.
II.
LEGAL MATERIALS AND METHODS The legal material of this paper are pimary and secondary legal materials.
Using the statute approach and historical approachs, this paper is devided into several parts.the introduction employs the eksisting of AEC and the correlation of theory of regionalism in ASEAN.
Regionalization requires a legal synchronization of cooperative arrangements The following part analyzes the cooperative policy in ASEAN trhough AEC and its implication to cooperative policy in Indonesia under Law 25/1992.
This study uses legal interpretation through the aid of methods or teachings about interpretation.
The interpretation method used in this research are: grammatical interpretation; Systematic interpretation; Historical interpretation; and futuristic interpretation.
III.
RESULTS AND DISCUSSIONS A. AEC and Cooperative Policy in ASEAN Strength and rationalist functionalist approach has strong arguments about why the state is involved in the development of regional institutions.
Globalization, economic and (non-traditional) interdependence between the security of neighboring countries and to secure survival in the region is also a major reason their regionalism.
On the one hand, the demand to dismantle the barriers to free trade intensified, while on the other hand, the State should enhance domestic capabilities and well-being of the country, given the limited government capacity in multilateral relations, thus requiring regionalism as a way out.
7 To build a strong and effective regionalization is not easy, it takes a long process, consistent with the commitment of each of the ASEAN member countries.
The main thing in building a regional system is to harmonize first ASEAN member 7 Mattli, W. “Explaining Regional Integration Outcomes”, (1999) 6 1 Journal of European Public Policy, 22 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 193 countries, in order to materialize the same standards for seluh ASEAN.
This is important because integration will be achieved if there has been a sameness and equality in the community.
8 However, harmonization is precisely the ASEAN toughest challenge today, given the characteristics of the ASEAN countries are very diverse.
Unlike the European countries which have cultural and historical background about the same, ASEAN countries have a high level of diversity, ASEAN was born from a variety of historical, cultural, and political systems are different.
To achieve solid economic integration, there must be standards that apply to all ASEAN countries.
Standardization can be achieved by harmonizing various fields.
At least, there are three things that must be in harmonisasikan: the substance / legal instrument; The same institutional structure; economic and productive culture.
a.
Substance / Legal Instruments ASEAN countries must draft a law that supports their economic integration.
The legal instrument should be consistent among ASEAN countries.
The state should create policies that encourage ASEAN.
To build a strong regional relationships that 8 Gavin, Brigid and Philippe de Lombaerde,”Economic Theories of Regional Integration”,(eds) in Farrel, Mary , Bjorn Hettne and Luk Van Langenhove, Global Politics of Regionalism: Theory and Practice, (London: Pluto Press, 2005), 11 cooperation should be based on the law (rule-based) that is clear, not only in the form of informal.
And this is where the formal legal position is very important instrument to reinforce a pattern of cooperation, purpose, until the dispute resolution process.
The provision of these legal instruments is still a daunting challenge in ASEAN.
This is because the characteristics of the ASEAN countries is very varied and many countries still consider the "national interest" as the most important thing, so if there is a conflict of interest between national interests and commitments of ASEAN, the ASEAN countries will ignore based on the principle of non interference 9 .
Therefore it needs political will of countries to harmonize ASEAN economic integration in ASEAN in its national economic policy.
For example, ASEAN countries should ratify the international conventions that standard, there is no reason for one country not to ratify for reasons of national interest or another.
b.
Institutional Structure After the harmonization of laws is formed, the next step is to create the institutions of supporters, because of the legal instrument alone can not melaksnakan law, there must be the executing agency.
In 9 Shofwan Albanna C, ASEAN di Persimpangan Sejarah: Politik Global, Demokrasi, dan Integrasi Ekonomi, (Jakarta: Yayasan Obor Indonesia, 2016), 112 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 194 this case the countries in ASEAN must have institutions (standard) which has the function of supporting the ASEAN economic integration.
For example, in the case of Competition, ASEAN countries should have at least Law Competition and Antitrust and have the Business Competition Supervisory Commission.
Albeit with different names but have the same functionality adapted to the nomenclature in every country.
The existence of these institutions will facilitate the coordination and harmonization of the level of implementation.
It will be difficult if only a few countries that have the institutional instruments in part while the other does not, because it concerns the standards that will be used within the framework of ASEAN regionalization.
c. Productive Economic Culture Social-cultural aspects are affected vulnerable aspects of the introduction of AEC, because it directly touches people's lives in real terms.
In the social aspect, the AEC is felt especially in terms of freedom of movement, berkominikasi and trade in the region, freemobiling.
ASEAN countries are no longer strangers to one another, supported by information technology is increasingly closing the bulkhead among countries.
As explained earlier, the standardization of the regionalization is a necessity, as well as the cooperative sector.
Inevitably cooperatives in ASEAN should be standardized so as to have the same value and can compete fairly in the ASEAN region.
Related on ASEAN policy on cooperatives, in fact not many documents or legal instrument (treaty) governing the specific specialized cooperatives, setting more on SMEs sector.
Although the aspects of cooperative business types included in the MSME sector, or could be SMEs cooperatives are legal entities, but philosophically there are significant differences between cooperatives and SMEs.
Cooperatives are based on the type of business that there are people-based association whose purpose is self-help and empowerment, while the MSME sector which koperasibusiness entity other than the base and the aim is profit (profit) managed by individuals.
In terms of organization, cooperation in ASEAN already has a container in the form of ASEAN Cooperative Organozation (ACO) that berafilisasi with the International Cooperative Allianz (ICA) at the wider international level.
The initial meeting of ASEAN Cooperation was held in Jakarta, Indonesia on 5-7 December 1977.
The meeting discussed ways to establish closer cooperation between ASEAN cooperation and to explore the Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 195 possibility of establishing ASEAN Cooperation Organization.
10 The meeting concluded by adopting a Joint Declaration on ASEAN Cooperative Movement representatives to form themselves into ASEAN Cooperation Organization, ASEAN abbreviated ACO Cooperative Organization which was held on December 6, 1977 in Jakarta, attended by representatives: 1.
Dewan Koperasi Indonesia/Indonesia Cooperative Council (Indonesia) 2.
ANGKASA (Malaysia) 3.
Ansurance System.
Co-operative Filipina (Filipina) 4.
Singapore National Co-operative Union Ltd (Singapore) 5.
Co-operative Liga Thailand (Thailand) Official location for the ACO had previously been in Jakarta because it was close to the office of the ASEAN Secretariat.
SPACE president, Dato 'Abdul Fattah Abdullah, was elected as the new President of the ACO for the 2014 2018 through a meeting of the Board of ACO in Nusa Dua, Bali, Indonesia on September 16, 2014.
The ASEAN Cooperation Organization or ACO serves to bridge the diversity of cooperatives in ASEAN and the role advocacy and cooperative business activities in ASEAN, especially in: 10 Blueprint for a cooperative decade 2020, available at http://ica.coop/en/blueprint-co-op-decade.
a.
Partnership Program which will assist the cooperative in this aspect of social and economic responsibility by holding seminars and conferences and exchange of expertise between ASEAN cooperative b.
Economic Development Program with the establishment of business networks among ASEAN cooperative members as well as helping to market the products of small and medium industries in ASEAN countries and globally c. Environmental issues affecting cooperatives in ASEAN countries.
Although the existing umbrella organization of cooperatives in ASEAN, laws or rules relating to cooperatives in ASEAN is still minimal.
There are at least two important instruments that can be filed a reference in a cooperative law sees politics in ASEAN, namely the ASEAN Economic Community Blueprint and ASEAN Strategic Action Plan for SME Development 2016-2025.
1.
ASEAN Economic Community Blueprint ASEAN is a regional group that began in 1967 at the height of the Vietnam War, and with only five members: Indonesia, Malaysia, Philippines, Singapore and Thailand.
At first, the establishment of the ASEAN five countries aimed at protecting against the threat of political and economic http://ica.coop/en/blueprint-co-op-decade Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 196 instability during the cold war era.
With the end of the Cold War changed the direction ASEAN cooperation to enhance economic development and bringing all countries within the framework of a strong partnership.
Brunei Darussalam joined in 1984, followed by Vietnam in 1995, Lao PDR and Myanmar in 1997, and eventually Cambodia in 1999, bringing the total to 10 members.
ASEAN made an ambitious economic agenda called ASEAN Community on 31 December 2015 has three pillars of the ASEAN Community as stipulated in the Bali Concord II, namely: Political and security, socio-cultural, and economic.
Each pillar has a blueprint (blueprint) for the realization of the ASEAN Community.
ASEAN Political-Security Community / ASEAN Political-Security Community (APSC) is designed to address threats to regional security and political stability and to promote democracy and human rights in the region.
Blueprint of the ASEAN Social Cultural Community (ASEAN Social Cultural Community / ASCC) aims to develop human resources, socially responsible, and environmentally friendly.
It lays down specific actions to be done in education, social protection, environmental sustainability, some allegedly civil society, and build an ASEAN identity.
11 11 The ASEAN Economic Community: A work in Progress available at ASEAN Economic Community / AEC reflects the strong commitment of ASEAN to deepen and broaden economic integration.
AEC blueprint outlines four pillars of the AEC will be achieved through the liberalization of trade in goods, services and investments: (a) a single market and production base, (b) the area which is very competitive, (c) the area of equitable development, and (d) a region integrated into the global economy.
ASEAN Economic Community Blueprint is an important document, and has taken seriously not only by ASEAN countries, but also by businesses and organizations in the worldwide economy.
To be inclusive and attractive, the AEC Blueprint needs to be understood the same way by the ASEAN community and the business community should have the understanding and the same light on the AEC Blueprint.
For that, need to work hard for ASEAN countries to melakukaan coordination, socialization and synergy within ASEAN.
Promotion and regional integration is a shared responsibility, not only by the ASEAN secretariat.
Associated with cooperatives policy, the cooperative sector so lightly represented in the AEC Blueprint document.
AEC Blueprint appears to have misrepresented the cooperative sector with the mere http://www.adb.org/publications/asean-economiccommunity-work-progress http://www.adb.org/publications/asean-economic-community-work-progress http://www.adb.org/publications/asean-economic-community-work-progress Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 197 mention of Agricultural Cooperatives.
In point 40 of the AEC blueprint states that: Promote ASEAN agricultural cooperatives as a means to empower and enhance market access of agricultural products, to build a network mechanism linking agricultural cooperatives, and to fulfil the purpose of agricultural cooperatives for the benefit of farmers in the region.
In ASEAN, there are 60 million members of cooperatives from a total of 640 million.
That number is significant.
Among them, a cooperative in Malaysia (Bank Rakyat Cooperation), Singapore (NTUC Fairprice and NTUC Income), Indonesia (Semen Gresik), Vietnam (Saigon Co-operative), among the 300 largest cooperatives globally.
Cooperative consists of various sectors such as consumers, workers, finance (savings and loans, insurance, and banks), women, fisheries, health, schools, universities, and others, who are all very active in the ASEAN region above and beyond that of Agriculture.
Thus ASEAN authority is obliged to work with the National Cooperative apexes (or federation) in the region, including ASEAN Cooperative Organizations (ASEAN Cooperative Organization / ACO).
ACO young organization compared with ICA, although the ACO has recently been very active in promoting inter-cooperative networks and business relationships in ASEAN.
For the ASEAN vision which states to maintain economic growth to alleviate poverty, to overcome the development gap and accelerate regional integration, outwardlooking, inclusive and fair, open manner, limiting cooperation to only one sector is a very narrow view.
12 It must be recognized that in many ASEAN countries, the growth of cooperatives reflect the actual needs of the country.
It reflects the nation's economic growth where there has been an increasing number of cooperatives in addition to an increase in GDP per capita nationwide.
The mechanism of the formation of cooperatives that includes very important socioeconomic where the combined capital and the ability of individuals of similar interests from different backgrounds helps individuals to lift their living standards.
Beginning of birth in Singapore cooperative (co-op) was triggered in 1920 in response to the problem of lack of financial institutions to help ordinary people.
With no bank or finance company declined to give financial assistance, people have little choice but to turn to debt "loan sharks".
90 years later, the credit co-ops continue to develop its social mission, 12 ILO Statement, by Juan Somavia, DirectorGeneral of the ILO, on the occasion of the 90th ICA International Co-operative Day and the 18th UN International Day of Cooperatives.
Available at http://www.ilo.org/global/about-the-ilo/mediacentre/statements-andspeeches/WCMS_184791/lang--en/index.htm.
http://www.ilo.org/global/about-the-ilo/media-centre/statements-and-speeches/WCMS_184791/lang--en/index.htm http://www.ilo.org/global/about-the-ilo/media-centre/statements-and-speeches/WCMS_184791/lang--en/index.htm http://www.ilo.org/global/about-the-ilo/media-centre/statements-and-speeches/WCMS_184791/lang--en/index.htm Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 198 members help members save for their future needs and provide unsecured loans with affordable interest rate.
Currently, the co-ops provide a range of services from thrift and loans, child, eldercare, security for health services and employment, benefit not only members but also the larger community.
Singapore facing an aging population, the Movement Co-op saw the formation of new cooperatives to help improve the quality of life for seniors.
In Malaysia, as in other ASEAN countries, the cooperative has received increased recognition as the third economic sector.
Cooperative is a unique blend of the other two sectors, namely the public sector that emphasizes the social welfare of society, and the private sector, focusing on profit maximization.
National Cooperative Policy (NCP) in 2011-2020, which was launched by Prime Minister Datuk Seri Najib Tun Razak in Malaysia proves government's recognition of the role of the cooperative movement in economic development.
He acknowledged the cooperative sector as one of the three contributors to the country's economy with the target of RM50 billion revenue in 2020.
Chart NCP aimed at cooperative development without compromising the values and philosophy of cooperatives, namely transparency, trust and honesty.
In the same way a cooperative in Thailand, the Philippines and Indonesia are good consolidation to improve public perception negatively associated too closely with the business to run the country, and to improve their quality performance of the socio-economic to improve deficiencies such as lack of quantitative data, policy advocacy, lack of standardization, as well as a step towards a Green Economy.
Credit Unions in most ASEAN countries are also actively involved in financial literacy and financial inclusion program, stressing the importance of savings and at the same time amelioration credit needs of rural and urban areas.
Education is considered an important part of the tradition of credit unions, promote saving habits and educate members how to use credit wisely.
National credit union federation ASEAN countries to work together under the auspices of the Asian Confederation of Credit Unions (Asian Confederation of Credit Unions / ACCU).
ACCU'S mission is to make the credit union community-based financial institutions more relevant.
ACCU regular membership consists of four ASEAN countries, namely Indonesia, the Philippines, Thailand and Vietnam, while affiliate members including Cambodia, Malaysia, Myanmar and Singapore.
Only Laos and Brunei in the ASEAN region are not yet members of the ACCU.
13 13 Blueprint for a cooperative decade 2020, available at http://ica.coop/en/blueprint-co-op-decade.
http://ica.coop/en/blueprint-co-op-decade Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 199 ASEAN is often touted as the Southeast Asian version of the European Union (EU).
While the EU and ASEAN both have diverse countries and a core member countries, ASEAN economic diversity and variety of their level of openness presents unique challenges in achieving regional economic integration under the AEC.
There is a need to recognize the many actors ASEAN and the EU take the example of the way the private sector is defined.
According to the Communication of the European Union: the activity of the private sector can take many forms and will have an impact on economic development in a variety of ways.
The private sector is very diverse, ranging from enterprising individuals to large multinational corporations and financial institutions; of the company to create shareholder value with the social centers of businesses, cooperatives and workers 'and employers' organizations.
They can operate locally, nationally, regionally and internationally, in rural or urban area, in the formal or informal sector and in the context of a very different country.
Each of these private sector players require different conditions and incentives to contribute to the development, which involves a different approach to the support and involvement for development.
A combination of required actions, and cooperative as a people-centered company can play an important role in this regard.
On the one hand, the cooperative because it can help increase the incentive for the formalization of those still living in rural communities, by providing the right legal support, securing property rights (especially land), which can be used as collateral for loans.
On the other hand, measures need to be taken to improve the productivity and working conditions in the informal sector through the work environment safer and easier access to markets, finance, infrastructure and social services.
Cooperatives can lead the way in providing decent jobs, sustainable livelihoods and inclusive solution to social problems in a way: a.
Associating with producers and other individuals in making the production and commercialization / marketing of a good or service that is more predictable and sustainable economy; b.
Build SMEs with a single production system and achieve economies of scale allow it to turn into a formal economic enterprise; c. Create and / or the incorporation of credit and a system that will give them credit productive, enabling them to consolidate their economic activities, laying the foundation towards the formal economy savings.
Thus, the cooperative should receive special attention in the ASEAN Economic Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 200 Community Blueprint as many cooperatives have an important role in the transformation of potential socio-economic life of the people in urban and rural communities ASEAN countries.
ASEAN needs to take into account the cooperative in consultation with the sector when developing policies and economic regulation, creating a legal framework and conduct administrative practices on social issues and the economy.
Diperlakuan feasible cooperative sector similar to other economic sectors, as many cooperatives have their typical structure that is a member as a driving force, then the cooperative sector well integrated ASEAN community will build from the bottom.
2.
ASEAN Strategic Action Plan for SME Development 2016-2025 More than three decades, ASEAN has established cooperation among the member states in the field of Micro, Small and Medium Enterprises (SMEs).
The cooperation aims to strengthen the competitiveness and sustainability of SMEs, cooperation which started in 1985 was finally cemented with the establishment of the ASEAN Strategic Action Plan for Small Medium Enterprises Development (SMED SAP) from 2012 to 2015, and is now followed by the ASEAN Strategic Action Plan for Small medium Enterprises Development (SMED SAP) 2016-2025.
From an economic perspective, SMEs are the backbone of the ASEAN economies.
The number of SMEs reached 96% of all companies in ASEAN, and is able to absorb a workforce of about 50 to 97%.
In addition, the contribution to GDP of about 30-60% and the contribution to export reached 19-31%.
For Indonesia, SMEs have a special meaning.
Historically, there is no doubt that SMEs were able to maintain economic stability in the current banking crisis in 1998 until today where SMEs still contribute to national economic growth.
SMEs are the backbone of the economy of Indonesia and ASEAN.
Approximately 88.8 to 99.9 percent of establishment in ASEAN are SMEs, and absorb 51.7 to 97.2 percent of the workforce in ASEAN.
14 In other words, SMEs are the "hero" for the development of the national economy.
However, SMEs often face challenges, particularly in terms of capacity building, access to capital and financing alternatives, access to technology, access to global markets, and the integration of regional and global chains.
In addition, low entrepreneurial spirit and managerial capabilities also become another challenge for SMEs in Indonesia.
To that end, a container of SMEs in ASEAN cooperation is deemed able to help SMEs Indonesia in facing these challenges.
14 I Made Diangga, “Masa Depan UMKM ASEAN”, (2016) 12 Majalah Masyarakat ASEAN Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 201 Policies and programs for SMEs in ASEAN is now focused on entrepreneurship and human resource development; capacity building related to the management, marketing, supply chain network, technology and innovation; and advocacy and support information through cooperation with various ministries, sectoral agencies and institutions in order to create an understanding of SMEs to financial products and helping SMEs benefit from ASEAN cooperation in other economic fields.
As a process, the cooperation of SMEs in ASEAN will continue to evolve to support sustainable regional economic integration.
To that end, ASEAN agreed to establish a Strategic Action Plan for SME Development 2016 2025 with the function of formulating the strategic vision and objectives in order to realize the vision of ASEAN SMEs in 2025 itself; explicitly defines the desired results of each of the strategic objectives; providing a set of key policy indicators (key performance indicators) to measure the results and evaluate the achievement of objectives; aligning step action from a regional perspective with concrete action steps to achieve the goals set; set a roadmap to clarify the action plan and design the mechanism so that ASEAN members can perform periodic evaluations and to submit the results at a meeting of Small Medium Enterprises Working Group (SMEWG).
It should be underlined that regional integration and openness to the global economy through free trade agreements (free trade area) is a necessity.
It makes ASEAN as a platform that "sexy" for the multinational corporation (MNC) so as to encourage competition with local companies.
However, such competition reap polemic on a certain level.
The competitive environment requires local SMEs to increase productivity so it can be integrated with the global chain.
To be able to face the competitive environment, SMEs need to proactively take steps to be able to take advantage of opportunities and minimize challenges.
Understand that SMEs in all ASEAN countries are quite varied with the complexity of the issues and challenges, for example in terms of setting the classification of SMEs and other policies, it is vital that SMEs policy directed strategically relevant to consider the priority action steps and time range.
Target first five years (2016-2020) of SAP SMED 2016-2025 is focused on the integration of SMEs in MEA era of free and aligned with the chain of production, while the next five years (2021-2025), SMEs are targeted to become globally competitive, innovative, inclusive and resilient.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 202 To achieve this vision, there are two approaches.
First, the competitive approach that emphasizes initiatives to improve global competitiveness in terms of diversification and innovation.
Second, an inclusive approach confirms the initiative to facilitate the transition from a traditional economy through industrialization to increase revenue.
Such an approach ultimately reflects efforts to set strategic goals and desired out comes.
15 In the Strategic Action Plan for SME Development 2016 2025, strategic goals include the following: 16 1.
Advancing productivity, technology, and innovation.
2.
Improving access to finance.
3.
Improving market access and internationalization.
4.
Improving the realm of policies and regulations.
5.
Promote entrepreneurship and human resources development.
15 Ibid, 16 ASEAN Strategic Action Plan for SME Development 2016-2025 From these strategic objectives, the expected role of SMEs will be increased so that SMEs can benefit as much as possible and be ready to face the AEC, 2025.
For example, with the improvement of the domains and system policies, SMEs can play a role in the decision making process.
In short, SMEs in ASEAN is an important element in the national economy of each country member so that the promotion of the SME sector is a necessity.
With the ongoing AEC 2015, SMEs in ASEAN needs to improve itself in order to face the challenges and take opportunities in the future.
Therefore, the Strategic Action Plan for SME Development 2016 2025 comes to realize the future of SMEs that are more useful and sustainable.
Table 1: Cooperative Strategic Goals ASEAN SME Approach 2016 2020 2021 2025 AEC Integration and regional value cain Competitive, innovative, inclusive, and strong globally Competitive Cluster Industry Inovation Inclusive Global production chain enterpreneurship Productivity export Increased employment Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 203 Of the Strategic Action Plan can be seen that ASEAN's policy for SMEs SMEs is designed to be a player in the global world.
SMEs which have limited access, both in terms of capital and resources, can be improved and global energized.
SMEs are designed to compete with big business even though the MNC.
This is certainly a breath of fresh air for the existence of its SMEs in the global competition.
In the Strategic Action Plan also does not distinguish whether bnetuk efforts of MSMEs form of individual business or cooperative form, all received the same treatment.
The thing to note is that if SMEs in the form of cooperatives.
Cooperatives differ from other forms of business profitability, the cooperative was born as a form of business that bridges the disparity between private (capital base and profit) with state-owned (managed entirely by the State).
SMEs shape other than a cooperative can immediately adjust to the ASEAN policy, globalization.
But the form of cooperatives should pay attention to aspects of cooperative values.
1 And this is where the role of government is needed, especially in terms of supervision.
Government exists to supervition cooperatives should continue to 1 Shofwan Albanna C, ASEAN di Persimpangan Sejarah: Politik Global, Demokrasi, dan Integrasi Ekonomi, (Jakarta: Yayasan Obor Indonesia, 2016) run according to the corridors.
Cooperatives differ from other business entities, can not be equated with the others who only teach interests.
There is a social function in a cooperative so there needs to be oversight of the government.
The absence of government supervision would be fatal, it could be possible cooperative identity will fade due to the influence of globalization, which is encased in AEC.
This result can be seen from the enactment of Law No.
17 of 2012 concerning Cooperatives.
Historically, the existence of this law is a response from the MEA imposed free market end of 2015.
To accelerate the business climate and readiness to face the free market, Cooperatives equated with other business entities (PT) that nuance is capitalistic.
Law was finally canceled by the Constitutional Court because it is not in accordance with the constitution and co-operative identity.
The role of government oversight in the AEC, particularly related to the existence of the cooperative is to ensure that cooperatives remain in accordance with the identity.
Supervision is not intended to inhibit the cooperative to compete, but in order for the cooperative to face global competition with still based cooperative identity.
Cooperative continues to be cooperative instead of resorting to other forms of business.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 204 Likewise, ASEAN's policy in the field of cooperatives, ASEAN should ensure the standardization carried out in the ASEAN region does not eliminate the identity of cooperatives.
The position of the cooperative should be strengthened by encouraging Accessibility cooperatives in ASEAN; and cooperative involved in the chain of ASEAN economic policy does not eliminate the value of the identity of cooperatives.
B.
The Implication of AEC to the Cooperative Policy Since the end of 2016, ASEAN has been implementing the ASEAN Economic Community (AEC) which affects the entire order of the State's economy as well as cooperatives.
At least there are two consequences that should receive special attention from the government with the implementation of AECs.
First, the State must synergize related regulations on cooperatives with the interests of ASEAN.
In a regionalized system synergy with policies in laws and regulations is a necessity.
No regionalization without synergy, synergy aims to strengthen the integration of the region / region.
Likewise in ASEAN, the first step is to strengthen ASEAN cooperation to synergize or integrate the rules in the State of ASEAN countries.
A second consequence is the setting up of cooperatives and SMEs to compete globally.
It is inevitable that the main purpose of regionalization is to realize free trade region, so inevitably, States must prepare for all economic entities (including cooperatives and SMEs) to be able to compete freely in the region.
Two consequences of this makes the role of the State and the government is very important as regulators of the existence of cooperatives, especially with regard to the supervision of the cooperative.
2 Cooperative oversight by the government became urgent in view of the challenges facing cooperatives in the AEC.
In the absence of supervision by the government likely will lose the cooperative spirit of mutual cooperation and kinship and are not in accordance with the identity because it affected the economic globalization and the free market.
Individuality and profit oriented the main thing.
To respond to the AEC, from the aspect of policy, the Government has prepared a variety of regulations, such as: Presidential Instruction No.
11 of 2011 on the implementation of the AEC Blueprint Commitment; Law No.
7 of 2014 on Trade, Presidential Decree No.
6 of 2014 on Enhancing National Competitiveness in the Framework Facing the AEC; Presidential Decree No.
37 of 2014 on the National 2 Paulus Effendi Lotulung, Beberapa Sistem tentang Kontrol Segi Hukum terhadap Pemerintah, (Bandung: Citra Aditya Bakti, 1993), 35 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 205 Committee for the Implementation Preparation AEC; etc.
a.
Presidential Decree Number 37 Year 2014 concerning the National Committee for the Implementation Preparation of AEC Under this rule is explained that the government membentuj National Committee for the preparation of the AEC.
The task of the National Committee include coordinating the preparation of the AEC, coordinate the acceleration of national competitiveness, and take steps to resolve the bottleneck in the preparation and implementation of AECs.
The National Committee is chaired by the Coordinating Minister for Economic Affairs.
In performing its duties, the National Committee formed an implementation team and team work at the regional level.
b.
Presidential Decree No.
6 of 2014 on Enhancing National Competitiveness The improvement of national competitiveness based on the following strategies: a) The development of national industry, which focus on priority industry to secure the domestic market and meet the ASEAN market, small and medium industry, human resource development and research, the application of National Standart.
b) Development of the agricultural sector, which focus on increasing direct investment and market access.
c) The development of maritime affairs and fisheries, through institutional strengthening, strengthening the domestic market, strengthening and improvement of the export market.
d) Development of energy, focusing on the electricity sub-sector and the reduced use of fossil energy (fuel), the development of sub-sectors of new energy, renewable and energy conservation.
e) Development of infrastructure that focuses on connectivity and infrastructure development of the payment system.
f) The development of a national logistics system.
g) The development of the banking system.
h) Development investments, which focus on improving the rule of law, business regulation and investment expansion.
i) The development of SMEs through easy financing, capacity building effort, and empowerment.
j) The development of the workforce, which focus on improving the competence and labor productivity.
k) The development of health, which focus on improving the resilience of Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 206 domestic herbal market and market access.
l) The development of trade through the stabilization and strengthening of the domestic market, increased exports and international cooperation, the development of export financing fasilita, educating the public about the AEC, 2015. m) The development of tourism with the tourism event.
n) Development of entrepreneurship that focuses on beginner entrepreneurs and expanding the role of young entrepreneurs.
c. Law No.
7 of 2014 on Trade In Article 6 explained that every business must complete the Indonesian language label on every product sold in Indonesia.
This is to anticipate the invasion of imported goods coming into Indonesia so that consumers know clearly the quality and keuaganaan products traded.
The regulation is then followed by the establishment of the Working Group (WG) in environment ministries to face the MEA, including the Ministry of Cooperatives and SMEs RI.
AEC Working Group of the Ministry of Cooperatives and SMEs established for preparing the ministerial strategic steps to face the MEA, including the technical preparations and the preparation of regulations.
In addition to the regulations made some mentioned above, as a result of the introduction of AEC is the birth of Law 17/2012 on Cooperative.
It is inevitable that this law was born as the government's response to the global challenges faced by the cooperative.
In the preamble of the Act states that Act No.
25 of 1992 concerning Cooperatives was already inadequate to be used as an instrument of development cooperation.
As a system, the provisions in the Act are insufficient again to be used as the legal basis for the development and empowerment of cooperatives, especially when faced with the development of national and global economic governance that is increasingly dynamic and challenging.
Law on Cooperatives are replacements Act No.
25 of 1992 concerning Cooperatives, which includes legal reform, so as to realize the Cooperative as an economic organization is healthy, strong, independent, and resilient, and reliable as a business entity, which bases its activities on the value and the cooperative principles.
Unfortunately, Law 17/2012 did not last long, the law was canceled by the Constitutional Court in Constitutional Court Decision No.
28 / PUU-X / 2013 as judged seseuai with the constitution and far values, principles and identity of cooperatives.
Law 17/2012 capitalistic breath and reduce cooperative traits.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 207 Practically the AEC was also influenced by the existence of the cooperative.
AEC can become opportunities and challenges for the existence of the cooperative.
Sebanarnya, this time the cooperative has had a capital base sufficient for the AEC is a type of business that is based on human (people based organization) to force the cooperative to advance its members, however, on the other hand, keidaksiapan member cooperatives in free competition can be a threat to the cooperative.
Some cooperative opportunities in the face of the AEC are: a.
Globalization, the free market can facilitate the flow of goods and services that are owned by the cooperative; b.
Increased investment flows in both the central and local levels with the free flow of investment, it can also be utilized in obtaining investment cooperatives; c. Competition from the aspect of price, the price becomes cheaper due to competition from imported goods; d. Access to meet the needs will be easier, for example, the need for industrial raw materials managed cooperatives; e. Disclosure of information, AEC provides opportunities to cooperatives to be easier to access and exchange information; f. The ease of communication among cooperatives g. Improved transport facilities and infrastructure, so that the mobilization of goods and services more easily; h. Spur to improve the quality and competitiveness of cooperatives.
In addition to the above mentioned opportunities, AEC can also be a challenge for cooperatives, are: a.
Weak education cooperative members and the lack of cooperative education for the local population; b.
The fragility of ideology / understanding of the values and identity of the cooperative, so that cooperatives are very easily influenced by globalization; c. The low contribution of members of the cooperative in terms of business transactions.
It can be seen from the number of cooperative members who are not active in advancing cooperative, or vice versa, relying more cooperative factor in advancing non-members of the cooperative, for example in terms of funding or capital; d. Weak cooperative services to members.
Not active member is also due to the cooperative does not provide maid excellence to members; e. Lack of loyalty manager or cooperative management, so pengeyampingkan aspects of Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 208 monitoring and maintenance in koprasi; f. Weak cooperation between kopearsi in terms of business management; g. Lack of co-operative businesses both from the aspect of scale and type of business.
To overcome this challenge then some things that need to be done by the government: first, apply a good cooperative governance and the second pass intensive monitoring of the aspects of the cooperative.
1.
Good Cooperative Governance Five main principles of cooperative good governance, namely: Transparency, accountability, independent, fairness / justice (equal treatment), and related parties (stakeholders).
Transparency means that it can disclose or provide information in a timely, appropriate, clear and accurate that is easily accessible to stakeholders in accordance with their rights.
Policy cooperative organizations particularly those involving strategic matters must be in writing and communicated to stakeholders.
Establish clear responsibility of each organ of the cooperative are aligned with the vision, mission, strategy and business objectives.
Accountability means that cooperatives should have performance measures da tone system of checks and balances in the management of the company.
For that cooperatives should ensure compliance with the provisions in force and become good cooperative citizen who cares about the environment and implement social responsibility.
Independent means that in taking the decision, the cooperative should be objective and free of any pressure from anyone and free from conflict of interest.
Fairness and justice means that cooperatives must take into account all stakeholders' interests based on the principles of equality and fairness (equal treatment) Stakeholders means that cooperatives should provide an opportunity to all stakeholders to provide input and opinions in the interests of the organization as well as having access to information in accordance with the principle of transparency.
Based on Minister of Cooperatives and SMEs No.
21/2015 there are five (5) aspects of cooperative governance indicators are good, that is: 1) Institutional Aspect Consists of: the legality of the institution; availability vision and mission statement; membership; stewardship; supervision; managers and employees; work program; meeting of members; and education of members.
2) Bussiness Aspect Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 209 Consists of: improve the link between members with other members and members of the cooperative; commitment to joint liability/risk sharing; utilization of the cooperative; an increase in production capacity; increase in assets; increase in turnover; and increased benefits.
3) Financial Aspect Consists of: capital structure; the ability of provision of funds; repayment percentage mandatory savings; repayment percentage voluntary savings; increase in assets; increase in turnover; increase in benefits; the performance of the internal control system; and the performance of the external audit.
4) Member Benefits Aspect Consists of: an increase in income of members; supply of goods and services are cheaper; cultivate motives trying to members; and fosters open and honest attitude.
5) Community Benefits Aspect Consists of: grow the local economy; local employment; reducing local unemployment; reducing poverty of local communities; and the improvement of social welfare.
2.
Cooperative Supervision by Government Cooperative oversight by the government to be important in dealing with the influence of AECs for several reasons, first: the government is applying the regulatory authorities in the field of cooperatives, as well as the authorities providing legal status and dissolve the cooperative.
Supervision is done by the government formally at the time of the registration of cooperatives (precooperative).
This authority is only owned by the Government as the holder kekeuasaan executive field, can not be done by other organizations (non-governmental) or a third party, especially by members of his own.
Supervision since the inception of the cooperative to ensure the establishment of cooperative bebar really based on the identity of the cooperative, and regulations.
Second, the government as a party in the cooperative, although the government is not a member of the cooperative, but the role of government can not be eliminated in the life of the cooperative.
Governments can also do the coaching and empowerment of cooperatives.
As explained earlier that the different supervisory role with the coaching and empowerment, load monitoring aspects of law enforcement and contain sanctions.
Supervision is done by the government do to ensure that programs do really precise Sasran and beneficial to cooperatives, such as the use of capital, business development and so on.
Thus, the role of government in terms of supervision is very important in terms of the challenges facing the AEC.
This Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 210 oversight does not aim to reduce the independence of the cooperative, but rather maintain the existence of the cooperative to comply with their identity and be able to compete in a global world.
If there is no supervision of the cooperative will lose direction and weak in a global competition.
C. The Politic of Law of Cooperative Supervision by Government on Law No.
25/1992 on Cooperative in Challenge AEC As explained previously that each Law governing cooperatives in Indonesia, since the Law 79/1958 to 17/2012 Law has a different legal political supervision.
The law politics tailored to the needs and direction of economic policy at the time.
3 3 Mahfud MD, 2010, above n. 7 In addition based on the interests of the government, the legal political differences, theoretically, also influenced by the phase or periodicity in the cooperative development is the phase Officialisasi, De-Officialisasi and Autonomy, which all three have the character of relations between the government and the different cooperative.
Phase de-officialisasi very dominant role in co-operative government, government officialisasi phase is winding down in a cooperative role in third party involved in the supervision, while in the phase of government autonomy only as a regulator.
4 Based on the periodicity and the laws on cooperatives that already exists, can be tabulated as follows political supervision law: 4 Ibnoe Sudjono, Hubungan Gerakan Koperasi dengan Pemerintah ditinjau dari Pandangan Internasional, (LSP2I, Jakarta: 2003), 23 Table 2: the Politic of Law of Cooperative Supervision by Government Regarding Cooperative Periode Cooperative Law Politic of Law Period Explanation Law of the Republic of Indonesia Number 79 Year 1958 on Cooperative Society The government is entitled to conduct overall supervision of the activities of the cooperative De-officialisasi In this Act is very dominant role of government, because the cooperative has not grown in quantity so we need a lot of government involvement.
CHAPTER III: Article 13 and 17 both central and local governments have the duty to guide and inspect, including oversight of the cooperative movement.
In exceptional circumstances, if after investigation Officials Board does not meet what is set out in the articles of association of cooperatives, among others, do not want to hold annual members' meeting, or the meeting of the regular members although it has been requested by members, officials at the request of some members may call a meeting of members Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 211 Cooperative Law Politic of Law Period Explanation Law of the Republic of Indonesia Number 14 of 1965 concerning Cooperatives The Government may involve third parties in conducting surveillance De-Officialisasi This law applies only 2 years, the government began to involve third parties in the regulatory process Part 2: Development and Supervision Article 55.
(1) In order to implement the provisions of Article 7 paragraph (1) This Act established the Directorate of Cooperatives as organizational guidance / supervision of cooperatives and regulated by the President or on the authority of the Presidential Decree binding provisions of article 5 of this Act.
Law of the Republic of Indonesia Number 12 of 1967 on the Basic Principles of Cooperatives The role of government towards cooperatives became stronger after the G 30S / PKI tragedy The government contributes to all activities of the cooperative.
Appears CAS (cooperative Accounting Services) De-officialisasi The authority of government include providing guidance, supervision, protection and facilities to the cooperative CHAPTER XI: The Role of Government Article 37 The government is obliged to provide guidance, supervision, protection and facilities to enable him to carry out the Cooperative as well as Article 33 of Law 1945 and its description.
Law of the Republic of Indonesia Number 25 of 1992 concerning Cooperatives CAS removed, the Government is no longer a "super auditors".
The government does not control, just coaching.
Supervision carried out independently by member Otonomi Start a shift, from officialisasi towards autonomy by eliminating the role of government in terms of supervision Law of the Republic of Indonesia Number 17 Year 2012 concerning Cooperatives Supervision is done internally by the members.
Otonomi In this law the government's role was minimal, especially in terms of supervision, because the goal is the independence of the cooperative.
The role of government (the Minister) examination, Article 98 From the table above it can be seen legal politics cooperative oversight by the Government in Law 25/1992 is leading to the independence of the cooperative, which makes the cooperative as a business entity independent and strong organization, capital, and business.
But the thing to note here is the absence of the State's role in oversight, this shows that the lack of oversight by the government refers to the government orientation on the growth of cooperatives in terms of quantity rather than on quality so that supervision is done loosely, ie by a body or organ formed by members of his own (Internal monitoring).
1 When linked with the identity of cooperatives, the cooperative supervision of legal political shift by the government in accordance with the co-operative identity, namely the independence or autonomy of 22 Paulus Effendi Lotulung, 1993, above n. 20 Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 212 the cooperative.
Cooperative autonomy requires a very minimal role of government in the cooperative, which is just as regulator.
While the overall control is left entirely to member cooperatives.
The independence or autonomy indeed are ideal for today's cooperative, but more needs to be seen is the entry into force of the ASEAN Economic Community in Indonesia.
AEC is a new challenge for cooperatives, cooperative existence is tested through the AEC.
As explained earlier that the idea of AEC was born on the 5th ASEAN Summit in Singapore in 1992 through the Framework Agreement on Enhancing ASEAN Economic Cooperation, the same year when the Law 25/1992 was born.
However, in terms of a vulnerable time, presumably the former Act 25/1992 not estimate their economic integration AEC (2015), so that the substance of the regulations in Law 25/1992 not reflect any response to the AEC.
The absence of supervision by the government in the Law 25/1992 of the Law of weakness in the face of the AEC.
This is due to the absence of external oversight of government can facilitate cooperative to be affected by globalization.
In addition, a national cooperatives are also required to align with cooperatives across ASEAN.
Otherwise da supervision, it is prone to cooperatives will terpengauh by globalization and the loss of identity.
Cooperative oversight by the government aimed to ensure the cooperative can still exist amid-amid globalization AEC with no loss of identity or family values in the Cooperative.
In addition, the implementation of cooperative independence as stipulated in Law 25/1992 must be real cooperative conditions and readiness of the field, in the face of globalization specially AEC.
Conditions in the field are very diverse cooperative, not all cooperatives are ready to face the AEC.
Based on data from the Ministry of Cooperatives and SMEs, recorded 61 912 cooperatives currently inactive status and was dissolved by decree of the Minister of Cooperatives and Small and Medium Enterprises No.
114 / KEP / K.UKM.2 / XII / 2016 dated December 23, 2016.
While the cooperative still active, amounting to 150 223 cooperatives have a different rank-different classifications.
Based on Minister of Cooperatives and SMEs No.
21 / Per / M.KUKM / IX / 2015 on Cooperatives rankings explained that cooperatives are ranked into four (4) categories / qualifications ie: a.
Cooperative with the qualification of "Highly Qualified", with the title of AAA; b.
Cooperative with the qualification of "Qualified", with the title of AAB; c. Cooperative with the qualification "Enough Qualified", with the title of ABB; Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 213 d. Cooperative with the qualification of "Not Qualified", with the title of BBB.
The ranking is based on several indicators of assessment, namely: the institutional aspects of the cooperative; aspects of the cooperative; the financial aspects of the cooperative; aspects of cooperative benefits for members; cooperative beneficial aspects for society.
Thus the government can not identify the policy (political law) to the cooperative in the face of AEC.
The government still must play a role in terms of surveillance, especially in the case of cooperative institutions.
The government must ensure the cooperative can be run in accordance with their identity by not rule out the independence of the cooperative.
Supervision of cooperatives run by the government is the institutional sector including the establishment of an initial test of the cooperative.
While the supervision of the business aspects and other aspects conducted independently by members or handed over to the umbrella organization of cooperatives, in this case Dekopin (Dewan Koperasi Indonesia).
The delivery of the supervisory authority of the internal institutional aspects to Dekopin is a manifestation of the principle of independence of cooperatives as well as a chance to advance Dekopin.
IV.
CONCLUSIONS AND SUGGESTIONS AEC is very influential on cooperative arrangements in Indonesia.
This is in accordance with the demands of regionalization want legal synergy and standardization.
Law politics cooperative oversight by the government under Law 25/1992 was not able to answer the challenge of AEC that promote free trade based liberalism that demands standardization and maximum competence.
The absence of supervision accompanied by strict enforcement of government, organizing cooperatives cooperatives do not correspond to their identity so that cooperatives are not able to meet the standards and competencies maximum of AEC.
Legal political oversight by the government cooperative ideal in order to face the AEC is to implement cooperative oversight of the governance carried out by the government and the cooperative movement container.
The scope of cooperative oversight by the government and the container cooperative movement covers aspects of the cooperative that aspects of membership, institutional, business aspects, financial aspects, aspects of benefits to members, and aspects of benefit to the community.
Law No.
25 of 1992 concerning Cooperatives should be changed so that cooperatives are not eroded AEC challenge.
Brawijaya Law Journal Vol.4 No.2 2017 Law and Sustainable Development 214 Cooperative policy upcoming government should regulate the authority and the jurisdiction of the cooperative movement in overseeing the cooperative.
Supervision is done by promoting the strengthening of the cooperative that maintains the identity of cooperatives.
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